New Delhi: The Supreme Court held that offences relating to manufacture and sale of drugs under Chapter IV of the Drugs and Cosmetics Act, 1940 cannot be tried by a Magistrate and must be tried by a Court not inferior to a Sessions Court.
A bench of Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi observed –
“Now, Section 32(2) specifically provides that no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter (Chapter IV). Thus, it can be said that for the offences punishable under Chapter IV, the Court inferior to the Court of Session shall not try such offences”, the Court held.
The Court refused to quash criminal proceedings against M/s SBS Biotech and its partners under the Act, holding that the complaint was not barred by limitation and that the case was triable by a Sessions Court.
The case arose from an inspection conducted on July 22, 2014 at the manufacturing premises of M/s SBS Biotech at Kala Amb, District Sirmaur, Himachal Pradesh.
The Drug Inspector alleged that the firm had not maintained records in the manner required under Schedule M and Schedule U of the Drugs and Cosmetics Rules, 1945, especially in relation to the drug Pseudoephedrine. Schedule M deals with good manufacturing practices and documentation requirements, while Schedule U prescribes the particulars to be shown in manufacturing records.
A re-inspection was carried out on August 5, 2014. The prosecution alleged that the firm did not furnish the complete records and that discrepancies were found in the manufacturing, testing and distribution records. The drug and corresponding documents were on the same day.
After sanction for prosecution was granted on September 15, 2016, a complaint was filed on February 27, 2017 alleging contravention of Section 18(a)(vi) read with Rule 74 and Section 22(1)(cca) and Section 18-B, punishable under Section 27(d) and Section 28-A of the Act.
The Judicial Magistrate First Class took cognizance on April 6, 2017 and later committed the case to the Special Judge on October 5, 2017 on the ground that the offence under Section 27(d) read with Section 28-A was exclusively triable by the Sessions Court.
The appellant’s quashing petition before the High Court was dismissed, leading them to file the present appeal before the Supreme Court.
Before the Supreme Court, the appellant argued that non-maintenance and non-furnishing of records under Schedule M and Schedule U would fall under Section 18-B of the Act, which deals specifically with maintenance of records and furnishing of information. They submitted that such violation is punishable under Section 28-A, which prescribes a maximum sentence of one year. On that basis, they contended that the complaint filed more than two and a half years after the inspection was barred by limitation.
They also argued that Section 18 of the Act deals with prohibition of manufacture and sale of certain drugs and not with record maintenance. Thus, Section 27(d), which prescribes punishment for manufacture, sale or distribution of drugs in contravention of Chapter IV or the Rules, could not be invoked.
They further submitted that offences punishable with imprisonment not exceeding three years, and not triable by a Special Court under Section 36-AB, are to be tried by a Judicial Magistrate First Class (JMFC) under Section 36-A. They therefore challenged the committal of the case to the Sessions Court.
The State opposed the appeal and submitted that the allegations went beyond mere non-maintenance of records. It argued that there were serious irregularities, including tampering of records and non-maintenance of raw material. It argued that the allegations attracted Section 18(a)(vi), which prohibits manufacture or sale of any drug in contravention of Chapter IV or the Rules, and is punishable under Section 27(d).
The Supreme Court noted that the complaint specifically alleged contravention of Section 18(a)(vi) and that the allegations included misuse of a habit-forming drug, manipulation and violations during manufacturing and testing of drugs, along with failure to maintain records under Schedule M and Schedule U.
The Court also rejected the argument that the case is summarily triable by JMFC.
Section 36-A provides that offences punishable with imprisonment not exceeding three years shall be tried summarily by a Judicial Magistrate First Class, except offences triable by a Special Court under Section 36-AB or by a Sessions Court.
The Court noted that Section 36-A itself excludes offences triable by a Special Court under Section 36-AB or by a Sessions Court. It held that when Section 32(2) specifically mandates that offences punishable under Chapter IV are to be tried by a Court not inferior to a Sessions Court, Section 36-A cannot be invoked to confer jurisdiction on a Magistrate.
The Magistrate was right in committing the case to the Sessions Court, the Court said. Finding no error in the High Court’s decision refusing to quash the proceedings, the Court dismissed the appeal.
