Jitender Kumar Nagar vs State of Haryana

J.S. Sekhon, J.

On 3rd May. 1985, Shri R.M. Sharma, District Drugs Inspector, Gurgaon, accompanied by Chief Medical Officer and others inspected the shop of Jitender Kumar Nagar, accusedpetitioner, located in the main bazar of village Malab and found the accused doing medical practice without licence. On inquiry, the accused disclosed that he was not a registered medical practitioner. Nineteen kinds of allopathic drugs and five empty vials of injection marked as CGS supply not for sale were recovered from his shop duly displayed for sale. These were taken into possession. In addition, 5 X 5 ml sealed vials with Chloramphanicol Ear drops were also purchased as sample for analysis. The accused failed to show the purchase bills of any of the above drags. The samples were sent for test. Thereafter, on 6th May, 1935, to the Pubic Analyst Haryana, notice was given to the accused under was given registered cover but it was received back undelivered with the remarks that the accused had gone out of station.

Thereafter, the report of the Public Analyst was also received regarding the sample being of substandard quality. Again, a notice was also sent to the accused under registered cover, but it also remained undelivered with the report that the accused had left the place. On these facts, a case under Section 420, Indian Penal Code, was got registered against the petitioner vide F.I.R. No. 1 dated 351985. During the pendency of this case, the Drugs Inspector also filed a complaint (Annexure P2) on 14.5.1996, for offences punishable under sections 27 & 18 of the Drugs and Cosmetics Act, 1940, for violation of the provisions of sections 16, 18 (a), 18 (c) 27 (d), read with rule 16 and 2 (ee) of the Rules, 1945. The accused was acquitted of the offence punishable under section 420, Indian Penal Code, by the Judicial Magistrate, Gurgaon, vide dated 851987 (Annexure P1).

Thereafter, the accused moved an application dated 1671987 before the trial Court for dropping the complaint for violation of the provisions of Drugs and Cosmetics Act, contending that the second trial on the same facts was barred by the provisions of section 300(1) of the Code of Criminal Procedure. The trial Court dismissed this application by holding that these provisions are not attracted in this case as apart from the other allegations, the petitioner was found selling and exhibiting the drugs of substandard quality and that these facts were not the ingredients of the offence under section 420, Indian Penal Code.

The trial Court, however, continued trying the complaint case under the Drugs and Cosmetics Act as a warrant case. The accusedpetitioner then moved an application for dropping the proceedings as the trial had been vitiated due to the noncompliance of the provisions of section 36A of the Act, providing the trial of the case in a summary manner. The learned trial Court partly accepted this application and directed that the case shall be tried as a summary case and adjourned it for 241991 for consideration of giving notice to the accused.

The accusedpetitioner moved another application for dropping the proceedings on the ground that the trial Court had no jurisdiction to try the case as under section 36 of the Act, the State could have not conferred such powers. This application was also dismissed on 3011992 by holding that these provisions are applicable to the Judicial Magistrate and not the Chief Judicial Magistrate or the Additional Chief Judicial Magistrate. Moreover, it was held that the Haryana Government vide notification dated 20th September, 1991 has empowered all the Judicial Magistrate including the Chief Judicial Magistrates in the State of Haryana to try these offences under this Act.

Under these circumstances, the petitioner has filed this petition under section 482, Code of Criminal Procedure for quashment of the complaint and the resultant proceedings therefrom.

The aforesaid petition was resisted by the District Drugs Inspector contending that the provisions of section 300 Cr.P.C. are not attracted in this case as only the District Drugs Inspector, under section 32 of the Act is competent to file a complaint for violation of the provisions of Drugs and Cosmetics Act and thus the acquittal of the accused for offence under section 420, Indian Penal Code, would be of no relevance. It was also maintained that the provisions of Article 20 (2) of the Constitution of India are not at all attracted in this case. The remaining allegations of the petitioner regarding lack of jurisdiction and trying it as warrant case were also controverted. 11 was also maintained that the protracted trial was due to the fault of the Court in trying cases as warrant case is of no consequence as it had not resulted in defeating the right of the petitioner to speedy trial or prejudicing him in defending the case.

It was also maintained that the trial got protracted due to the conduct of the accused in filing the applications from time to time.

I have heard the learned counsel for the parties besides perusing the record.

It is admitted case the parties that the petitioner was tried for and acquitted of the charge for offence punishable under section 420, Indian Penal Code, on the facts collected by the Drugs Inspector during the search of the shop of the petitioner on 3.5.1985. The perusal of the judgment and copy (Annexure P1) of the order of the Judicial Magistrate acquitting the accused for offence under section 420, Indian Penal Code further shows that the allegations of the prosecution in that case were that the accused had stored allopathy drugs without valid licence, besides indulging in sale of drugs without licence by using the name of Sohan Lal, Medical Practitioner and thereby cheated said Sohan Lal in particular and public at large by dishonestly and fraudulently using the licence of Sohan Lal for storing, keeping and dealing in medicines and drugs without the consent of Sohan Lal. In the strict technical sense, the allegations regarding the petitioner having indulged in the sale of substandard drugs were not relevant to the prosecution of the accused for offence under section 420, Indian Penal Code.

The question then arises whether under these circumstances the provisions of section 300, Code of Criminal Procedure would bar the retrial of the accused on almost the same facts. The provisions of this section read as under :

"300. Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts far any offence for which a different charge from the cite one him might have been made under subsection (1) of section 221, or for which he might have been convicted under subsection (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under subsection (1) of Section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such lastmentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the firstmentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General...... Clauses Act, 1897 (10 of 1897) or of section 198 of this Code Section 221. Where it is doubtful what offence has been committed :

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsection (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."

A conjoint reading of the above referred provisions leaves no doubt that where a person has been tried by a court of competent jurisdiction for an offence and convicted or acquitted thereof, he shall not be, liable to he tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of section 221, or for which he might have been convicted under subsection (2) thereof. But under the circumstances of the case as the cognizance of the offence under section 36 of the Drugs and Cosmetics Act is barred under section 32 of the Act except on the complaint of Drugs Inspector, it cannot be said that the Magistrate who tried the offence under section 420, Indian Penal Code, was competent to take cognizance of the offence for violation or the provisions of Drug and Cosmetics Act, especially when according to version of the accusedpetitioner, the State of Haryana has not conferred such powers on any of the Judicial Magistrate, Ist Class, before 20th September 1991. Moreover, the possession of substandard drugs for sale was not essential ingredient of the of cheating punishable under section 420, Indian Penal Code. Consequently, the acquittal of the accused for the offence of cheating would not operate as bar to his prosecution for offences under the Drugs and Cosmetics Act.

Regarding the second contention of the learned counsel for the petitioner that the Judicial Magistrate specially conferred with the powers, by the State Government under section 36A of the Act was competent to try the case of all offences punishable with imprisonment not exceedings three years under this Act except an offence under clause (b) of subsection (1) of Section 331 of the Act, it transpires that although special conferment of such powers by the State Government upon a Judicial Magistrate of the Ist Class is required but no such power is required to he conferred if the case is being tried by a Metropolitan Magistrate. Mr. Bishnoi, the learned Deputy Advocate General has failed to show any amendment under these provisions by the State of Haryana to the effect that Chief Judicial Magistrates shall be competent to try such cases without conferment of special powers. Thus, the Chief Judicial Magistrate, or the Additional Chief Judicial Magistrate for the purposes of this Act had to be considered simply as Judicial Magistrate, Ist Class and he was not competent to try these cases under this Act without conferring of such powers specially by the State Government. It is conceded by Sh. Bishnoi that before the issuing of a notification dated 20.9.1991 empowering all the Judicial Magistrate of Ist Class including the Chief Judicial Magistrate in the State of Haryana to try all offences under this Act, no earlier notification was issued. Consequently, the findings of the trial Court that the Chief Judicial Magistrate or Additional Chief Judicial Magistrate were competent to try the cases without conferring such powers are not well founded.

The question then arises whether the above referred notification of the Haryana Government after the trial Court has taken cognizance of the offence would validate the defect regarding conferring of jurisdiction in this regard, it is noteworthy that the concerned court is required to have jurisdiction at the time of taking cognizance of the offence. Thus the subsequent notification of the Haryana Government dated 20.9.1991 will not validate the steps taken in the trial, which already stood vitiated due to lack of jurisdiction. Admittedly, no fresh complaint has been filed after 2091991 regarding the same allegations. Consequently, the entire proceedings stand vitiated.

There is considerable force in the last contention of the learned counsel for the petitioner that the protracted trial in the case has resulted in prejudice to the accused petitioner for setting up a proper defence, as after the receipt dated 1561985 of the Government Analyst on 1761985, no notice was actually served upon the accused to show cause as to why he should not be prosecuted for having kept substandard drugs for sale as per the said report. The allegations in the complaint simply show that notices were sent under registered cover on 17685, & 9785 but the same were received back undelivered with the remark that the accused had left the village. Thereafter no serious effort was made to ascertain the correct particulars of the residence of Jitender Kumar accused and as a matter of fact, there is no averment in the complaint that any of the subsequent notices was received by the accused. It is noteworthy that on the basis of the report dated 1561985 of the Government Analyst regarding the drugs being substandard, the complaint was filed on 14.5.1986, i.e. a little less than one year of the receipt of such report. Consequently, due to lapse of time, the accused was certainly debarred from challenging the veracity of the report of the Government Analyst from the Central Drugs Laboratory by getting a portion of the sample handed over to him (sic) tested.

Thus, under the circumstances of this particular case, the protracted trial for more than six years has not only resulted in denying the petitioner the right of expeditious trial but also resulted in prejudice to him in defending himself properly.

For the reasons recorded above, the complaint as well as resultant proceedings therefrom are quashed by accepting this petition.