Drugs & Cosmetics Act | JMFC Can Try Offences Punishable Up To 3 Years; S. 32 Bar Not Absolute: J&K&L High Court

Holding that jurisdiction under the Drugs and Cosmetics Act is governed by the nature of punishment prescribed and not merely by the chapter under which an offence falls, the High Court of Jammu & Kashmir and Ladakh has ruled that offences punishable with imprisonment not exceeding three years can validly be tried by a specially empowered Judicial Magistrate, notwithstanding that such offences fall under Chapter IV of the Act.Clarifying the scheme of jurisdiction under the Act, Justice Sanjay Dhar dismissed a petition filed by a company which had sought the quashing of criminal proceedings pending before the Chief Judicial Magistrate, Srinagar. The Court rejected the challenge to jurisdiction, alleged procedural violations in sampling, and the plea of non-application of mind at the stage of cognizance.Background of the Case:The case arose from a complaint filed by the Drugs Officer, Anantnag, alleging that a sample of the injection “Monocef”, manufactured by the petitioner company, was found to be not of standard quality. The sample, lifted from a co-accused retailer at Anantnag, was first declared substandard by the Government Analyst, Jammu. Upon tracing the supply chain, the drug was ultimately linked to the petitioner-manufacturer.In compliance with statutory procedure, a portion of the sample and the test report were forwarded to the petitioner. Thereafter, upon grant of sanction, a complaint was filed alleging offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act. The cognizance was initially taken by the District Mobile Magistrate (T), Anantnag, and following procedural transfers and a commitment to the Sessions Court, the matter eventually came to be transferred to the Court of Chief Judicial Magistrate, Anantnag, and subsequently to the CJM, Srinagar in 2022. At an advanced stage of trial, where evidence of the accused was underway, the petitioner approached the High Court seeking quashing of the proceedings.Appearing for the petitioner, Advocate Aatir J. Kawoosa, contended that the Chief Judicial Magistrate lacked jurisdiction to try the offence in view of Section 32 of the Act, which bars courts inferior to a Sessions Court from trying offences under Chapter IV. It was further argued that the mandatory procedure under Section 23(4) had been violated as the manufacturer was allegedly not supplied a portion of the sample, and that the order taking cognizance was cryptic and reflected non-application of mind.Opposing the petition, Deputy Advocate General Hakim Aman Ali, submitted that the offence in question was punishable with imprisonment not exceeding three years and was therefore triable by a Judicial Magistrate specially empowered under Section 36-A.Court's Observations on Jurisdiction:Dealing with the core issue of jurisdiction, the Court undertook a detailed analysis of Sections 27(d), 32, 36-A and 36-AB of the Act. Justice Dhar noted that the offence alleged against the petitioner carried a maximum punishment of two years' imprisonment with fine, squarely bringing it within the ambit of Section 36-A.The Court observed that while Section 32 generally bars courts inferior to a Sessions Court from trying offences under Chapter IV, this restriction operates only where the Act does not otherwise provide. Section 36-A, being a specific provision, expressly authorises summary trial by a specially empowered Judicial Magistrate for offences punishable with imprisonment not exceeding three years, the court underscored. Emphasising that punishment-based classification prevails over chapter-based categorisation, the Court held that the mere fact that the offence falls under Chapter IV does not oust the jurisdiction of a Magistrate where the legislature has provided otherwise.The Court further noted that this very issue had already been examined by the Principal Sessions Judge, Anantnag, who had correctly transferred the matter to the Magistrate after noting SRO 44 dated 06.02.2006, which empowers all Judicial Magistrates of the State to try such offences. The Court remarked:"...Principal Sessions Judge, Anantnag, while passing order dated 30.05.2015, by making reference to SRO 44 of 2006, which empowers all the Judicial Magistrates of the State to try the offences in exercise of powers under Section 36-A of the Act. The contention of learned counsel for the petitioner in this regard is, therefore, without any merit".Turning to the contention regarding non-supply of a portion of the sample, the Court found the argument to be factually incorrect. It noted that the complaint specifically pleaded that the sample portion was supplied to the petitioner on 25.06.2012, to which the petitioner responded by asserting that the drug was of standard quality.Significantly, the Court noted that the petitioner itself had sought retesting of the sample by the Central Drugs Laboratory, Calcutta, which again declared the drug to be not of standard quality. It thus maintained, "...the...

Drugs & Cosmetics Act | JMFC Can Try Offences Punishable Up To 3 Years; S. 32 Bar Not Absolute: J&K&L High Court

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Drugs & Cosmetics Act | JMFC Can Try Offences Punishable Up To 3 Years; S. 32 Bar Not Absolute: J&K&L High Court

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