## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 CRL.MC NO. 6247 OF 2013**
**SC 856/2013 OF ADDITIONAL SESSIONS COURT, KOZHIKODE CC 84/2011 OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE**
## **PETITIONER/S:**
AMBALAL V PATEL S/O. VANARASIDAS PATEL, (MANAGING DIRECTOR OF CENTURION LABORATORIES (A DIVISION OF CENTURION REMEDIES PVT.LTD.), G/S INDUSTRIAL ESTATE, GORWA, BARODA-390 026. BY ADV SRI.M.SREEKUMAR
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED BY THE DRUGS INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682 030, NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 CENTURIAN LABORATARIES A DIVISION OF CENTURIAN (REMEDIES) PVT. LTD. G/5 INDUSTRIAL ESTATE, GORWA, BARODA, PIN-390016, REPRESENTED BY ITS MANAGING DIRECTOR, AMBALAL PATEL BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION
## **OTHER PRESENT:**
PP M.C.ASHI
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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## **ORDER**
Dated this the 20[th] day of June, 2023
The petitioner is the second accused in SC No.856 of 2013 of the Additional Sessions Court, Kozhikode. The case was originally numbered as C.C.No.84 of 2011 on the files of the Chief Judicial Magistrate Court, Kozhikode and later committed to the Additional Sessions Court. The
case originated from a complaint filed by the first respondent under Section 32 of the Drugs and Cosmetics Act, 1940 ('the Act' for short),
alleging commission of offence under Section
18(a)(i) r/w Section 27(d) of the Act. The
allegation is that, on analysis, certain drugs manufactured by the first accused Company, of
which the petitioner/second accused is the
Managing Director, was found to be of substandard quality. This Crl.M.C is filed aggrieved by the committal of the case to the Additional Sessions
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Court. The prayer is to declare the offence alleged in the complaint is not liable to be committed to the Court of Session and is to be tried before the Chief Judicial Magistrate Court itself.
2. Adv.C.S.Manu appearing for the petitioner submitted that the legal position is covered by this Court's decision in _**Zest Pharma v. Drug Inspector [2013 (4) KLT 462]**_ . It is submitted that in _**Zest Pharma** (supra)_ , this Court has categorically held that, even after the amendment of the Drugs and Cosmetics Act by the Drugs and Cosmetics (Amendment) Act, 2008, Magistrate Courts are vested with the jurisdiction and power to try the offences under Section 18(a)(i) r/w Section 27(d), where the allegation is that the drug is not of standard quality. It is pointed out that Section 18(a)(i) prohibits the manufacture and sale of drugs which are not of
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standard quality, or are misbranded, adulterated or spurious. Referring to Section 27(d), it is argued that the provision is applicable to drugs, other than those referred to in Clauses (a), (b) or (c). It is contended that as per Section 36AB, Special Courts are constituted for trial of offences relating to adulterated or spurious drugs, punishable under Clauses (a) and (c) of Section 27. As the charge against the petitioner is under Section 27(d), the offence is triable by Magistrate Court.
3. Learned Public Prosecutor submitted that, Section 36AB mentions only about Clauses (a) and (c) of Section 27, but it is also clear from the provision that the Special Courts are empowered to try offences relating to adulterated drugs or spurious drugs also. Further, in view of the nonobstante clause in Section 32(2), no court other than a Court of Session can try the offences punishable under that chapter.
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4. In order to answer the legal contention, it is essential to read and analyse the relevant provisions of the Act. Chapter VI of the Act deals with manufacture, sale and distribution of drugs and cosmetics. Section 16 therein defines the expression 'standards of quality'. Likewise, Section 17 defines misbranded drugs, 17A defines adulterated drugs and 17B, spurious drugs. Section 18(a)(i) prohibits the sale of any drug which is not of standard quality or is misbranded, adulterated or spurious. The penalty for manufacture in violation of Section 18(a)(i) is provided in Section 27. Clause (a) of Section 27 prescribes the penalty for use of adulterated or spurious drug likely to cause death or likely to cause such harm as would amount to grievous hurt within the meaning of Section 320 of the IPC, solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be. Section 27(b)
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prescribes the penalty for the use of drugs deemed to be adulterated under Section 27(c) for drugs deemed to be spurious under Section 17B. A lesser punishment, than for the offence under Section 17C, viz, for the use of drugs other than those referred to in Clauses (a), (b) and (c) of Section 27. In the instant case, the allegation is the petitioner had manufactured drugs in violation of Section 18(a)(i), which is punishable under Section 27(d). In Section 36AB providing for the constitution of Special Courts, the law makers have cautiously included only Clauses (a) and (c) of Section 27. It is hence beyond cavil that the offences punishable under Section 27(a) and (d) are to be tried before the
Magistrate's Court itself. In _**Zest Pharma** (supra)_ , the offence was punishable under Section 27(b). This Court held that the offence had to be tried by the Magistrate court, irrespective of
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the constitution of Special Court as per Section 36AB. Being contextually relevant, paragraph 4 of
## _**Zest Pharma** (supra)_ is extracted hereunder;
“ _4. In view of the arguments advanced by the learned counsel for the revision petitioners, the question to be considered is whether the Magistrate’s Court has the power to try an offence under S.18(a)(i) read with S.27(d) of the Drugs and Cosmetics Act after the commencement of Act 26 of 2008 with effect from 10.8.09. Before the commencement of Act 26 of 2008, all the offences coming under the purview of the Drugs and Cosmetics Act, 1940 were being tried by the Magistrate’s Court only. The drastic change brought up by the said amendment is that punishment provision of certain offences are enhanced and the trial of certain offences are brought under the jurisdiction of the Sessions Court, which can be designated as Special Court. Therefore, after the amendment, two categories of courts are provided for the trial of offences coming under the Drugs and Cosmetics Act. So also, the powers of the Magistrate’s Court are also enhanced so as to_
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_try certain offences punishable with imprisonment for a term not exceeding three years in a summary way. In short, after the amendment of 2008, the Magistrate’s Court as well as Sessions Court designated as Special Court are vested with powers to try the respective offences coming under those courts. Coming to S.32(2), no court inferior to that of Court of Session shall try an offence punishable under this Chapter, save as otherwise provided in this Act. Therefore, the jurisdiction and power of the Magistrate’s Court to try certain offences are also saved by the said saving provision. Coming to S.36AB, the Special Courts are vested with jurisdiction and power to try certain offences relating to adulterated drugs or spurious drugs and punishable under Clauses (a) and (b) of S.13, sub-s.(3) of S.22, Clauses (a) and (c) of S.27, S.28, S.28A, S.28B and Clause (b) of sub-s.(1) of S.30 and other offences relating to adulterated drugs or spurious drugs. In these cases, admittedly, the allegations would come neither under adulterated drug nor spurious drug. Thus, unambiguously S.18(a)(i) is_
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_excluded from S.36AB introduced by way of amendment with effect from 10.8.09. Certain offences which stood in the Act before the said amendment are seen carved out and brought under the jurisdiction of Special Court constituted and designated under S.36AB introduced by Act 26 of 2008 with enhanced penalties. Obviously, those offences excluded from such carving of will remain there with the Magistrate Court and continue as such without any disturbance. Therefore, I am of the opinion that even now after the amendment of 2008, the Magistrate’s Courts are vested with the jurisdiction and power to try the offences under S.18(a)(i) read with S.27(d), if the allegation under S.18(a) (i) is that the drug is ‘not of a standard quality’.”_
Based on the discussion above and being in
agreement with the findings in _**Zest Pharma** (supra),_ the Crl.M.C is allowed and the order committing CC No.84 of 2011 from the Chief
Judicial Magistrate's Court, Kozhikode to the Additional Sessions Court, Kozhikode is quashed.
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Consequently, SC No.856 of 2013 shall be retransmitted from the Additional Sessions Court, Kozhikode to the Chief Judicial Magistrate Court, Kozhikode forthwith.
Sd/- **V.G.ARUN JUDGE**
Scl/
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## **APPENDIX OF CRL.MC 6247/2013**
PETITIONER ANNEXURES
ANNEXURE A1 : COPY OF THE SUMMONS ISSUED TO THE PETITIONER IN SC NO.856/2013 ON THE FILES OF THE ADDITIONAL SESSIONS COURT, KOZHIKODE. ANNEXURE A2 : COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE'S COURT, KOZHIKODE, AS CC NO.84/2011.
