Date of Order:
27 July 2023
Bench:
Honourable Justice Shree Prakash Singh
Parties:
Applicant :- Dr. Shail Kumar Jain
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
SUBJECT
- The applicant is registered for an offence punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940 (the Act), and a request is made to quash the criminal proceedings in criminal case no. 1437 of 2022 (state of U.P. versus Shail Kumar Jain) under section 17B/17A(e)/18A/27 of the Act, as well as the summoning order dated 19-07-2023.
- The court found that authorities ignored an exemption clause in Rule 123 of Rules 1945, allowing drugs in Schedule ‘K’ to be exempt from Chapter IV of the Act. The Magistrate’s duty cannot be marginalized in such cases, and authorities violated Section 33M of the Act, 1940.
IMPORTANT PROVISIONS
- Drugs and Cosmetics Act 1940
OVERVIEW
- The applicant, a BAMS graduate from Lucknow University, filed a complaint under the Drugs & Cosmetics Act 1940. After receiving samples and receiving notices, the applicant responded, but a complaint was filed on nonest grounds. The complaint was filed after four years of delay.
ISSUES RAISED
ARGUMENTS ADVANCED BY THE APPELLANT
- The learned counsel argues that the applicant, a lawful BAMS student from Lucknow University, is a party to a complaint under the Drugs & Cosmetics Act 1940. The complaint was filed on nonest grounds, and the applicant has not disputed the complaint.
- He argues that Section 33M of Act 1940 requires prosecution only by an Inspector, which is missing in the case and was ignored by the trial court.
- The applicant argues that Rule 123 of the Drug Rules, 1945, exempts drugs specified in Schedule K from Chapter IV of the Act and its rules, subject to the conditions specified in the Schedule. The applicant argues that the sample taken falls under Schedule K, which is under the exemption clause, and therefore, no complaint can be lodged for the offence.
- It is argued that the summoning order is erroneous and against settled law, as no reason has been recorded during summoning.
- He is argues that the Apex Court must apply its mind in a case, and merely stating the Magistrate's review of the complaint and documents is insufficient. They cite the Apex Court's judgment in Maksud Saiyed v. State of Gujarat and Others.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The State’s counsel argues that the complaint is detailed and the applicant committed an offense under Section 17B/17A(e)/18A/27 of ‘the Act 1940’. The learned trial Court has rightly passed the order, and no interference is warranted.
JUDGEMENT ANALYSIS
- The court observed an exemption clause in Rule 123 of the Rules 1945, allowing drugs specified in Schedule ‘K’ to be exempt from Chapter IV of the Act. The sample taken was admittedly under Schedule ‘K’, but authorities ignored the provisions. The court found no reason recorded in the order dated 19.07.2022, indicating that the trial court should record detailed reasons for issuing summons. The Magistrate’s duty cannot be marginalized in such cases.
- The court finds that authorities have not complied with Section 33M of the Act, 1940, resulting in a violation of the mandate of due procedure.
- The order dated 19.07.2022 in Complaint Case No. 1437 of 2022 is set-aside, and the matter is remitted to the trial court for a fresh order within 60 days.
