IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7432/2013 BETWEEN:
1. SUDHIR M. SHAH S/O. MANHARLALA SHAH AGED 52 YEARS R/AT NO.1903, GURUKUL TOWER J.S. ROAD NEAR DAHISAR RAILWAY STATION MUMBAI-400068.
2. SANJAY N. BARIYA S/O. N. BARIYA AGED 45 YEARS M/S. NOCILA HEALTH CARE, GIDC SARIGAM, GUJARAT-396 155.
3. SRI JITENDRA RATIWALA S/O. RATIWALA AGED 45 YEARS M/S. NOCILA HEALTH CARE, GIDC SARIGAM, GUJARAT-396 155.
4. SRI UMESH MACHI S/O. M. MACHI AGED 50 YEARS M/S. NOCILA HEALTH CARE, GIDC SARIGAM, GUJARAT-396 155. ... PETITIONERS (BY SRI M. VINOD KUMAR, ADVOCATE) AND:
STATE OF KARNATAKA REP. BY NAGARAJ K.V. DRUG INSPECTOR OFFICE OF ASSISTANT DRUG CONTROLLER MANGALORE CIRCLE PRASAD APARTMENTS BALMATTA APARTMENTS MANGALORE-575 001.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA VIDHANASOUDHA BANGALORE-560 001. ... RESPONDENT (BY SRI NASRULLA KHAN, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1774/2007 PENDING ON THE FILE OF THE J.M.F.C.(II COURT) MANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought to quash the proceedings initiated against them in C.C.No.1774/2007 for the alleged offences punishable under Sections 18 (a)(i) and 27(d) of the Drugs and Cosmetics Act, 1940.
2. Heard learned counsel appearing for petitioners and learned HCGP. Perused the records.
3. Even though, the petitioners have urged large number of grounds in the petition assailing the proceedings initiated against them, but on going through the records maintained by the lower Court, in my view, the petition deserves to be allowed on the ground that the learned Magistrate has committed serious illegality while issuing summons to the petitioners.
4. First and foremost, the learned Magistrate has failed to take cognizance of the alleged offences. Without taking cognizance, learned Magistrate has proceeded with the matter. Though he has rightly dispensed with the recording of sworn statement of the complainant, as he was a public servant, but failed to note that all the accused persons were residents beyond the limits of jurisdiction of the learned Magistrate. Under the said circumstances, in view of Sec.202 of Cr.P.C., the learned Magistrate could not have issued summons to the petitioners without first conducting inquiry as prescribed under Section 202(1) of Cr.P.C.
5. Law is now well settled that the inquiry or investigation before issuing the process to an accused residing at a place beyond the area in which the Magistrate exercise his jurisdiction is mandatory as per Section 202 of Cr.P.C. Since the learned Magistrate has breached this mandatory requirement the impugned proceedings are liable to be quashed.
Accordingly, petition is allowed.
The proceedings in C.C.No.1774/2007 against the petitioners for the offences punishable under Sections 18 (a)(i) of the Drugs and Cosmetics Act, 1940 and 27(d) of the said Act on the file of the Judicial Magistrate of First Class (II Court), Mangalore is quashed.
Matter is remitted to the learned Magistrate to consider the complaint afresh by following the requirements of Section 202 of Cr.P.C.
All other legal contentions urged by the petitioners are left open for consideration at the appropriate stage.
In view of disposal of main petition, I.A.No.1/2013 for stay does not survive for consideration. Hence, same is disposed of.
Sd/- JUDGE JS/-