Accused in C.C.No.115/14 on the file of the Chief Judicial Magistrate Court, Kozhikode, are the revision petitioners herein.
2. The case was originally taken on file on the basis of a complaint filed by the first respondent alleging offence under Section 17(1)(b) and (c), 18(a)(i) and 18(B) and Section 27(d) of the Drugs and Cosmetics Act, 1940 before the Judicial First Class Magistrate Court, Perambra and when the Act was amended, making certain offences exclusively triable by Special Court and Additional Sessions Courts have been designated as Special Court the magistrate committed the case to the Sessions Court as per order in C.P.No.14/13 and the Sessions Court had taken cognizance of the case as S.C.No.918/2013 and made over to First Additional Sessions Court for disposal as it was designated as the Special Court for trying offences of such nature. The petitioners filed Crl.M.C.No.4128/2006 before this court for quashing the proceedings and this court by Anneuxre A1 order dated 02.04.2013 partially quashed the proceedings alleging that offence under Section 17(b) or 17(c) of the Act are not attracted and quashed the proceedings to that extent alone and directed the court below to proceed with the trial of the case in respect of other offences. Thereafter, the Special Judge found that the offences alleged are not exclusively triable by the Special Judge or Sessions Court in view of the dictum laid down in the decision reported in Zest Pharma, M.P. and Others Vs. Drug Inspector, Thrissur and Another [2013 (4) KHC 223] and framed charge under Section 18(a)(i) read with Section 27(d) and Section 18(B) read with Section 27(d) of the Drugs and Cosmetics Act, and made over the case to Chief Judicial Magistrate Court, Kozhikode for disposal under Section 228(1) of the Code of Criminal Procedure. After the order of the Additional Sessions Court, the case was taken on file by the Chief Judicial Magistrate, Kozhikode as C.C.No.115/14 and it is now pending before that court. The extent of framing charge under Section 18(a)(i) of the Drugs and Cosmetics Act is being challenged by the revision petitioner.
3. Considering the scope of enquiry involved and State is the only respondent, this court felt that the revision can be admitted and disposed of today itself on merit after hearing both sides. So, the revision is admitted and heard and diposed of today itself.
4. The Counsel for the revision petitioner submitted that in view of the fact that the charge under Section 17(b) and (c) having been quashed by this court and the analysis report does not show that it was a spurious medicine or adulterated one, the offence under Section 18(a)(i) is not attracted and the court below was not justified in framing charge for that offence.
5. The learned Public Prosecutor opposed the submissions made and supported the order of the court below.
6. It is an admitted fact that the first respondent had conducted inspection of the concern of the revision petitioner and found that there were two expiry dates mentioned on the label of the medicine Ascorbic Acide (Vitamin-C) tablets I.P. bearing batch No.147 with two expiry dates - August 1999 and August 2000 on the same strip of tablets and in spite of notice issued, they did not produce the required registers and so, they filed complaint before the Judicial First Class Magistrate Court, No-I, Perambra against the revision petitioners alleging offences under Sections 17 (b) and (c), 18(a)(i) and 18(B) read with Section 27(d) of the Drugs and Cosmetics Act. It is also an admitted fact that it was originally taken on file as C.C.No.194/01. When that case was pending before the Judicial First Class Magistrate Court, the petitioner filed Crl.M.C.No.4128/06 before this court for quashing the proceedings. But, while this case was pending, the amendment to the Drugs and Cosmetics has been made and certain offences were made exclusively triable by Sessions Court and it was further mentioned in the Act that it will have to be tried by the Special Court constituted for that purpose. Accordingly, the case was converted as C.P.No.14/13 and it was committed to the Sessions Court and Sessions Court had taken cognizance of othe case as S.C.No.918/13 and made over to Additional Sessions Court, No-I, Kozhikode which was designated as the Special Court for this purpose. While that case was pending before that court, this court by Annexure A1 order in Crl.M.C.No.4128/06 dated 02.04.2013 quashed the proceedings partially alleging that offence under Section 17(b) and 17(c) punishable under Section 27(d) of the Drugs and Cosmetics Act is not attracted on the basis of the allegations made and quashed taking cognizance of the offence for those offences and directed the court to proceed with trial in respect of other offences. It is thereafter, that the learned Additional Sessions Judge relying on the decision mentioned above that the offences alleged are not exclusively triable by Special Court or Sessions Court and decided to frame charge under Section 18(a)(i) read with Section 27(d) and 18(B) read with Section 27(d) and made over the case to Chief Judicial Magistrate Court for disposal as provided under Section 228 of Code of Criminal Procedure.
7. Section 18(a)(i) reads as follows:
18. Prohibition of manufacture and sale of certain drugs and cosmetics:- From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf -
(a) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute -
(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
x x x x x
8. The prosecution has no case that it is an adulterated or spurious drug. Their case was that it is a misbranded one which was found to be unsustainable by this court as per Anneuxre A1 order. So, under the circumstances, no charge under Section 8(a)(i) read with Section 27(d) of the Act is attracted in this case, especially when this court has already found that there is no misbranding and no offence under Section 17(b) and (c) are attracted in the case. So, under the circumstances, the framing of charge for the offence under Section 18(a)(i) is unsustainable in law and the same is liable to be set aside. Accordingly, the charge framed by the Sessions Court for the offence under Section 18(a)(i) of the Drugs and Cosmetics Act framed against the petitioners is set aside and the Chief Judicial Magistrate is directed to proceed with the trial of the case for the remaining offence alone. It will not be a bar for the court below, if during the course of trial, any other offence is made out to frame additional charge or alter the charge and dispose of the case in accordance with law.
With the above direction and observation, the revision is allowed and disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge