Preliminary Inquiry Is Mandatory Before Issuing Process When Accused Resides Beyond Territorial Jurisdiction Of Magistrate: J&K High Court

The Jammu and Kashmir High Court held that it is mandatory to conduct an inquiry before issuing process in a case where the accused is residing outside the jurisdiction of the magistrate court. The court held that in the present case, the Magistrate has not conducted any preliminary enquiry nor any investigation has been directed. The court held the impugned order as not sustainable in law. The magistrate had issued process on the basis of a complaint filed by the Drug Control Inspector against the petitioner for manufacturing and marketing a sub-standard drug. The court also held that the Director of the company cannot be prosecuted personally unless it is specifically pleaded that he was responsible for the conduct of the business. The court noted that the challenge to the complaint was not made by directors individually but made by the companies therefore their personal liability was not under consideration in this case. A bench of Justice Sanjay Dhar set aside the order passed by the Judicial Magistrate and direction was issued to the learned trial court to hold a preliminary enquiry in terms of Section 202(1) of Cr. P. C and thereafter proceed afresh in the matter in accordance with the law. The petitioners challenged the impugned order also on the ground that the report on the basis of which the complaint was made was not reliable. However, the court noted that both the Government Analyst and the Central Drugs Laboratory declared the drug to be sub-standard based on established pharmaceutical standards. The court also said that the validity of the said report cannot be tested entirely at the pre-trial stage. The court while rejecting the petitioner's contention with respect to taking cognizance, observed that many of the provisions of the Drugs and Cosmetics Act were triable only by the sessions court but that will not bar the magistrate from taking cognizance before committing the same to the court of sessions for further criminal proceedings BACKGROUND: The Drug Control Officer filed a complaint against the petitioner companies and their directors before Chief Judicial Magistrate, Anantnag for manufacturing the substandard drugs. The complaint was filed after the drug officers conducted the inspection and collected samples from M/S Three Star Medical Agency. These drugs were sent to the laboratory for testing where they were found to be substandard and the complaint was filed in the district Ananatnag. The petitioners challenged the cognizance and issuance of process on the ground that the mandatory procedure of the Drugs and Cosmetics Act was not followed and also that conducting an inquiry was mandatory before issuing the process. The court while rejecting the contention with respect to the reliability of the test report said that was a matter of trial. However, the court held that conducting the inquiry was a mandatory provision where the accused were residing beyond the territorial jurisdiction of the court and therefore the order was set aside and remanded for fresh consideration. APPEARANCE: Sikander Hayat Khan, Advocate. FOR petitioners Syed Musaib, Dy. AG FOR respondents Case-title : M/S NAVA HEALTHCARE PVT. LTD vs UT OF J&KCitation: 2025 LiveLaw (JKL) 53Click Here To Read/Download The Order

Preliminary Inquiry Is Mandatory Before Issuing Process When Accused Resides Beyond Territorial Jurisdiction Of Magistrate: J&K High Court

Aleem Syeed

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