* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Petition No.10794 of 2014
%17.10.2014
Between:
M/s. Medicamen Bio-tech Limited, Rajasthan and others. Petitioners AND The State of A.P, Rep. by its Public Prosecutor, High Court of Judicature at Hyderabad For the States of Telangana and A.P and another. ….
Respondents ! Counsel for Petitioners : Sri K.S. Murthy ^ Counsel for Respondent No.1 : Public Prosecutor for State < Gist:
> Head Note:
? Cases referred:
1) AIR 1960 Bombay 107
2) 1980 CriLJ 304 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.10794 of 2014
ORDER:
The petitioners/A.1 to A.3 in this petition filed under Section 482 Cr.P.C are seeking to have the quash of order passed in C.C.No.1290 of 2009 dated 03.02.2014 by the I Additional Chief Metropolitan Magistrate, Vijayawada and confirmed in Crl.R.P.No.28 of 2014 by the Metropolitan Sessions Judge, Vijayawada.
2) The 2nd respondent/ Drug Inspector filed C.C.No.1290 of 2009 against the petitioners/accused for the offence under Section 18(a)(i) of Drugs and Cosmetics Act, 1940 (for short “the Act”) punishable under Section 27(d) of the Act for manufacturing and distributing the substandard quality of the drugs. Under Section 27(d) of the Act, the offence is punishable with an imprisonment for a term which shall not be less than one year but which may extend to two years and with fine. Of course, the Court may for adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. Be that it may, the trial procedure for the aforesaid offence is provided under Section 36-A of the Act which lays down thus:
“36A. Certain offences to be tried summarily— Notwithstanding anything contained in the Code of Criminal Procedure, 1973, [all offences (except the offences triable by the Special Court under section 36AB or Court of Session) under this Act], punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub-section (1) of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code.”
3) A perusal of Section 27(d) of the Act would show that since the relevant offence is punishable with imprisonment for a term upto two years and fine, it can be said that it is a summons case by virtue of definitions to summons case and warrant case under Section 2 of Cr.P.C, 1973.
As per Section 2(w) “summons-case” means a case relating to an offence and not being a warrant-case.
As per Section 2(x) “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
a) So, basically the offence under Section 18(a)(i) of the Act comes under summons case and procedure prescribed in Chapter XX Cr.P.C. for trial of summons cases under Sections 251 to 259 needs to be followed. However, the Drugs and Cosmetics Act, 1940 which is a special legislation, provides otherwise under Section 36A which is already extracted supra. Sections 36A begins with non-obstante clause and says that notwithstanding anything contained in the Criminal Procedure Code, 1973, all the offences under this Act punishable with imprisonment for a term not exceeding three years with exception to offence provided under Section 33-I (1) (b) of the Act shall be tried in a summary way by the Judicial Magistrate of First Class by following the provisions of Sections 262 to 265 of Cr.P.C. and when such trial procedure is followed and conviction is recorded, the Magistrate shall pass a sentence of imprisonment for a term not exceeding one year.
b) So, the first part of Section 36A with first proviso gives an understanding that despite the case covered by the offence under Section 18(a)(i) of the Act is a summons case, which is generally to be tried as a summons case by following Sections 251 to 259 of Cr.P.C., still by virtue of Section 36A the Magistrate shall try the case in a summary way by following the provisions under Section 262 to 265 of Cr.P.C.
c) When the similarities and dissimilarities between summons trial procedure (Sections 251 to 259 under Chapter XX Cr.P.C.) and summary trial procedure (Sections 260 to 265 under Chapter XXI Cr.P.C.) are perused, under both procedures the trial Court need not frame formal charges against the accused. Then dissimilarity in trial procedure is concerned, in recording evidence in summons trial, the entire narration of the witness has to be recorded by the Magistrate under Section 254 Cr.P.C. whereas in summary trial procedure, the Magistrate need not make verbatim reproduction of the evidence of the witness but suffice under Section 264 Cr.P.C. to record the “substance of the evidence”. The term ‘substance of evidence’ is discussed in:
[1]
1) Krishna Nayar Ram Nayar vs. State
2) Sankaran Unni Vasudevan Unni vs. Rasheed and
[2]
another
d) Then, second proviso to Section 36A lays down that at the commencement or in the course of a summary trial of the case, when it appears to the Magistrate that imprisonment for a term exceeding one year may have to be passed or that for any other reason it is undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect, if the trial is under the way recall the witness who has been examined and proceed to hear or rehear the case in the manner provided in Cr.P.C. So as per the second proviso the Magistrate is vested with the discretion to decide nature of the trial to be followed, he may either follow the summons procedure or summary trial procedure.
The above is about the procedure regarding trial of the offences under Drugs and Cosmetics Act.
e) In the instant case, it appears, learned Magistrate followed the trial of warrant cases instituted on a police report and accordingly framed charge against the petitioners/accused on 24.03.2011. It appears no formal written order was passed by the Magistrate giving reasons for adopting the warrant procedure. Probably he might have been prompted by Section 259 Cr.P.C. which gives power to Magistrate to adopt the course of the procedure for trial of warrant case to summons case when the summons case can be visited with a punishment for a term exceeding six months. Thereafter it appears PW1 was examined on 20.01.2014 and the successor Magistrate passed the impugned order dated 03.02.2014 ordering that case can be tried as a private summons procedure case instituted other than upon the police report and the evidence of the prosecution will be recorded in a summary manner as per Section 36A of the Act.
f) The above order was impugned in Crl.R.P.No.28 of 2014 before the Court of Metropolitan Sessions Judge, Vijayawada on the main ground when once the earlier Magistrate adopted warrant procedure, the successor has no power to review the same and convert into summons procedure for which there is no suitable provision either in Drugs and Cosmetics Act or in Cr.P.C. This argument was not found favour with the learned Metropolitan Sessions Judge who opined that the Act does not provide for trial of offences punishable under Section 27(d) of the Act as warrant case and the warrant procedure adopted by the earlier Magistrate was not right. Accordingly, the subsequent order was approved and held that no prejudice will be caused to the accused by this course and the revision was dismissed.
Hence, the present Criminal Petition.
4) Heard learned counsel for petitioners and learned Public Prosecutor.
5) The point for determination is:
“Whether there are merits in this petition to allow”?
6) POINT: It is needless to reiterate that in respect of case on hand, following Section 36A, the concerned Magistrate at the threshold of the case shall decide whether he wants to follow the procedure for trial of summons case or summary trial procedure. In the instant case, the earlier Magistrate followed the procedure of trial of warrant cases instituted upon police report. In the considered view of this Court, this procedure is wrong on two counts. Firstly, no cogent written order appears to have been passed by him showing reasons for his adopting the procedure for trial of warrant cases that too instituted upon police report instead of instituted on a private complaint, since the present case is instituted on the complaint of Drugs Inspector. Secondly, even assuming that learned Magistrate was prompted by Section
259 Cr.P.C., the same is also wrong because the special legislation under Section 36A in its second proviso did not vest him with such power. Even further assuming that he can take recourse under Section 259 Cr.P.C., he should have adopted the procedure for trial of warrant cases instituted upon a private compliant but not otherwise. Instead he adopted the wrong procedure and framed charge which was later set right by his successor. Therefore, petitioners/accused cannot claim any prejudice by virtue of subsequent order. However, one thing must be noted. The trial which so far was held by virtue of wrong procedure needs to be quashed.
7) In the result, this Criminal Petition is dismissed by confirming the order dated 03.02.2014 passed by the learned I Additional Chief Metropolitan Magistrate, Vijayawada in C.C.No.1290 of 2009 and confirmed by the learned Metropolitan Sessions Judge, Vijayawada in Crl.R.P.No.28 of 2014. However, the trial so far held adopting wrong procedure being vitiated, learned Magistrate is directed to conduct de novo trial and dispose of the case in accordance with law within a period of four(4) months from the date of receipt of this order.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 17.10.2014
Note: L.R. Copy to be marked: Yes / No
scs / murthy
[1] AIR 1960 Bombay 107
[2] 1980 CriLJ 304