1. T h is present petition has been preferred on behalf of the petitioners/company under Section 482 of Cr.P.C. being aggrieved by the order dated 05.10.2020 passed in ST No.348/2020 by JMFC, Ujjain whereby upon the private complaint, cognizance under Sections 17(b)(e), 18(a)(iv), 18(B), 27(c), 27(d) & 28-A of Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act of 1940".) has been taken and process has been issued against the petitioners.

2. Facts of the case are that pursuant to a complainant made by the complainant, the respondent has inspected the premises of the company namely M/s Simco Pharma on 20.09.2016 situated at 30, Ravi Shankar Nagar, Ujjain and found that the drugs namely Silver Sulphadiazine Cream (31x500grams) was found in the boxes wihout adhering lebel on drugs. Authorized person of M/s Simco Pharma told the respondent that the said drugs has been purchased by M/s. Simco Pharma from the present petitioners. The respondent has issued two letters dated 19.12.2016 and 08.02.2017 to the present petitioner seeking explanation regarding sale of the said drugs. In reply dated 29.03.2017,the petitioner no.1 has stated that the said drugs were sold to M/s. Simco Pharma adhering/affixing the label. Thereafter, on 05.10.2020, respondent has submitted a complainant against various persons including the petitioners under the provisions of Section 17(b)(e), 18(a)9i), 18(A)(vi), 18(B), 27(c), 27(d) and 28-A of The Act. Vide order dated 05.10.2020, the learned Session Judge has taken cognizance against the petitioners.

3. The petitioners are challenging the impugned order of cognizance on t h e ground of jurisdiction of Session Court that without committal by Magistrate under Section 193 of Cr.P.C session Court has no jurisdiction, without application of mind, process has been issued against the petitioners. It is also submitted that that as per the provisions of Section 36-AB of the Drugs and Cosmetics Act, 1940 without there being committal of case by the Magistrate, the Sessions Court has no power to pass such order of taking cognizance against the petitioners. It is further submitted that the process has been issued without application of mind in a mechanical manner which is not sustainable in the eye of law. Section 204 of Cr.P.C. specifically provides that if sufficient ground is made out for issuance of process then the court is empowered to issue the process wherein in the case at hand, the learned Session Judge has not applied its mind while issuance of process and simply registered the case and issued the process against the petitioners. Learned counsel for the petitioners submits that the learned Session Court has passed the impugned order against the petitioners without taking into considering the provisions of Section 36-AD of Drugs and Cosmetics Act, 1940 r/w Section 468 of Cr.P.C. which provides period of limitation of one year for taking cognizance in such offences, whereas, in the present case, search took place in the year 2016 and cognizance has been taken in the year 2020.

4. It is further submitted that the learned session Court has taken the cognizance in the matter without recording prima facie satisfaction and issued the process which is not in consonance with the law. It is also submitted that no statements were recorded prior to passing the impugned order. The learned trial Court has also overlooked the provisions of Section 34 of the Act. The provisions of Section 209 of Cr.P.C. has not been considered by the learned Sessions Court while passing the impugned order. It is further submitted that although the offence punishable under Chapter IV of the Act is triable by Session Court but not cognizable by Court of Session. Hence, prays for setting aside the impugned order which has been passed illegally, without application of mind and without following the appropriate procedure.

5. In support of his argument, counsel for the petitioner has placed reliance over the judgment passed in the case of Mohanlal Patidar vs. Bank of Maharashtra [2022 (2) MPLJ 27 (DB)] wherein it has been observed that "the trial Court has no jurisdiction of taking cognizance without committal,hence, the order is not sustainable".

6. On the other hand, counsel for the State has opposed the prayer by submitting that the learned Session Court has rightly passed the impugned order against the petitioners/company after following the due procedure of law. It is also submitted that the learned trial Court has rightly issued the process against the petitioners under Section 204 of Cr.P.C. It is also submitted that after recording of the satisfaction, the Session Court has now framed the charges against the petitioners. It is also submitted that the Court has not overlooked the provisions of Section 34 of the Act as it deals with the offences by companies and petitioner being company has been indicated ans also even after giving necessary notices dated 19.12.2016 and 08.02.2017, the petitioners have failed to produce the relevant documents. Further, the petitioners have remained absent before the Court and hence, the order has been passed after giving proper opportunity of hearing.

7. Counsel for the State, controverting the contents of the application and submitted that this case punishable under Section 18(c), read with Section 27(b) (ii), Section 18(a)(i) read with Section 17(B)(e), Section 18(a)(i) read with Section 16, 17(c), 27(c) and 27(d) of the Act, 1940 and Section 18-A, read with Section 28, Section 18(B) read with Section 28-A of the Act, 1940, is triable by the Special Court/Sessions Court. Therefore, the committal proceeding is not required before taking cognizance by the Sessions Court. So far as the provision of Section 193 of the Cr.P.C. is concerned, since this act is a special act and under Section 36-AD of the Act, 1940, the Court of Sessions is empowered to try the cases as a special Court. The Court of Sessions has already been notified by the State Government in consultation with the Hon’ble Chief Justice of the High Court; therefore, the application in respect of objecting to the cognizance proceeding is not tenable. Therefore, the same be dismissed. In so far as the provision of Limitation Act is concerned, the Shri Anand Soni, learned Additional Advocate General has contended that this case was filed alongwith other offences, hence, it shall be governed under Section 468(3) of Cr.P.C. Moreover, the provision of section 743 of Cr.P.C is also applicable for extending the period of limitation.

8. In view of the rival submissions, I have examined the sanctity of impugned order in view of the Act of 1940.

9 . Having gone through the Act, 1940, it emerged that there is no provision expressly or by necessary implication available that mandates that the Special Court (Court of Sessions) can take cognizance without the case being committed to it by the respective Magistrate. Hence, the provisions of Section 193 of the Cr.P.C. would apply, which predicates as under -

“Section 193. Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

10. On this aspect, the law laid down by the this Court rendered in M/s Kalptaru Medicose through Narayan Prasad Sahu vs. the Food and Drug Administration through Ashok Goyal, 2017 Law Suit(MP) 210, is worth referable. In this case, the co-ordinate Bench of this Court, considering the provisions of the Act, clarified the legal position in this regard. In this context, the following paragraphs of the Judgment are appropriate to quote-

“A Perusal of Section 32 of 'The Act of 1940' will reveal that no Court inferior to a Court of Sessions can try an of ence punishable under the Chapter -IV of 'The Act of 1940'. Section 36AB, which was inserted by Amending Act No. 26 of 2008, further says that the trial of of ences enumerated therein can only be before the special Court constituted in this regard.

The State Government in exercise of powers conferred under Section 36AB of 'The Act of 1940', vide notification dated 01/05/2010 (copy annexure-P/5), has designated Sessions Judge of each district as special Court for trying specified of ences under 'The Act of 1940'. Section 36AC of 'The Act of 1940' provides that certain of ences under 'The Act of 1940' enumerated therein shall be cognizable and non-bailable. Section 36AD of 'The Act of 1940' further says that - Save as otherwise provided under 'The Act of 1940', the provisions of 'The Code', shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session.

I n 'The Act of 1940', no where expressly or by necessary implication provides that either the special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order.

Section 193 of 'The Code', which deals with cognizance of of ence by Court of Sessions and is relevant for the present discussions runs as under:- "193. Cognizance of of ences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any of ence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an of ence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.” 

11. Before conclusion, the co-ordinate Bench of this Court has also considered the provisions of other special acts, like Section 14 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, and Section 5 of the Prevention of Corruption Act, 1988. In this regard, the view of the this Court, expressed in Para 15 and 16, is also condign to quote here-

“Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that Special Judge under the Act can take cognizance of of ence(s) without the acused being committed to him for trial.

Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Sepcial Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the apex Court in Gangula Ashok's case (Supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec-5 of the Prevention of Corruption Act, 1988 or Sec- 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.” 

12. Even in the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981, there is a similar provision enshrined under Section 8(1) & (2) of this Act, wherein it is explicitly mandated as under -

“8. Procedure and powers of Special Courts. -

(1) A Special Court may take cognizance of any specified of ence,-

(a) upon receiving a complaint which constitutes such of ence; or

(b) upon a police report of such facts; or ]

(c) upon information received from any person other than a police of icer, or upon its own knowledge, that such of ence has been committed. 

(2) A Special Court shall, in trial of a specified of ence, follow the procedure provided by the Code for trial of Session cases:

Provided that the Special Court may wherever necessary perform the functions of a Magistrate under section 207 of the Code and proceed to try the case as if the case had been committed to court of session for trial under the provisions of the Code.”

13. In the Drugs and Cosmetics Act, 1940, there is no such provision mentioned that mandates that a Special Court/ Court of Session can directly take cognizance of any specified offence, or perform the functions of a Magistrate under Section 207 of the Cr.P.C. and proceed to try the case as if the case had been committed to the Court of Session for trial. As such, inasmuch as no provision or amendment like the aforesaid provisions has been mandated or amended in the provisions of the Act, 1940, the Special Court under this Act as a Court of Session cannot take cognizance without the case being committed to it for trial. On this aspect, the view of the Hon’ble Supreme Court in Union of India Vs. Ashok Kumar Sharma and others, (2021) 12 SCC 674, is propitious to produce here-

“40……...It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try of ence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any of ence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any of ence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the of ence under Chapter IV……..” 

14. Now the question arises as to what procedure would be adopted in this case, where the charges are framed. In this regard, the guidelines can be taken from the Judgment of the High Court of Andhra Pradesh in Referring Officer, Addl District and Sessions Judge, Srikakulam Vs. State of Andhra Pradesh, 2000 LawSuit(AP) 893, wherein the Hon'ble High Court of Andhra Pradesh ordained as under -

"(14) THE third question is :3. Whether the cases falling under the above two categories or anyone of the above can be returned at this stage irrespective of the fact that cognizance has been taken the answer is in the af irmative in view of the conclusion recorded in 1993 (3) ALT 533 : (1999 Cri LJ 4173), and the answer to the 1st question supra. Thus, the reference is answered accordingly. Cri. M. P. No. 4963 of 1999." 

15. Since this case has been filed on the basis of private complaint, the procedure of complaint cases has to be adopted. On this aspect, the view of the Hon’ble Supreme Court rendered in Union of India Vs. Ashok Kumar Sharma (Supra) is apposite to be mentioned here-

“40......... There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the of ence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even of ences falling under Chapter IV of the Act. Starting with Section 200 of the Act dealing with taking of cognizance by a Magistrate on a complaint, including examination of the witnesses produced by the complainant, the dismissal of an unworthy complaint under Section 203 and following the procedure under Section 202 in the case of postponement of issue of process are all steps to be followed. It is true that when the complaint under Section 32 is filed either by the Inspector or by the Authorised Gazetted Of icer being public servants under Section 200, the Magistrate is exempted from examining the complainant and witnesses.

41. ...............A perusal of Section 202 would show that in regard to an of ence falling under Chapter IV of the Act, being exclusively triable, by a Court of Sessions, the proviso to subSection (1) to Section 202 prohibits the direction for investigation under Section 202. The proviso to sub-Section (2) of Section 202 contemplates that when an of ence is exclusively triable by the Court of Sessions, and the Magistrate proceeds under Section 202 of the CrPC, he is duty bound to call upon the complainant to produce all its witnesses and examine them on oath................” 

16. In view of the aforesaid verdict, inasmuch as under the provisions of Section 193 of the Cr.P.C. and Section 32 of the Act, 1940, no cognizance of offence punishable under the Act, 1940, can be taken by Special Court/Court of Session without committal of the case. Hence, the order of learned Session Court taking cognizance is passed without committal of the case therefore, the same is liable to be Set aside.

17. Consequently, the petition is allowed and the order dated 05.10.2020 passed in ST No.348/2020 by JMFC, Ujjain is hereby quashed. The matter is remitted back to the Session Court alongwith record, if any, and the learned Session Court is directed to pass the order of cognizance afresh after following the due procedure of law. In light of the aforesaid analysis, the complaint alongwith necessary papers be returned to the complainant by Session Judge with a direction that he will file it before the competent Magistrate i.e. CJM/JMFC who has been competent as distribution memo of Principal District and Session Judge. Whereupon, in order to take cognizance, the Chief Judicial Magistrate/JMFC concerned will proceeding in accordance with law. Further, if he finds that this case is exclusively triable by the Special Court/Court of Sessions, then he has to pass an order of committal under Section 209 of Cr.P.C. so that the Special Court/Court of Session my take cognizance under Section 193 of Cr.P.C.

18. It is also clarified that if the petitioners/companies or its Directors released on bail, their bail bonds would be extended for further six months so that the petitioners would have to present before the Court of CJM/JMFC concerned, if required. It is also directed that after filing of the complaint by the complainant, if the petitioners shall not appear before the Court concerned, the Court shall be at liberty to adjudicate the matter in accordance with law.

19. A copy of this order be sent to the Session Court as well as CJM, Ujjain for information and necessary compliance.

20.It is also made clear that the observations made hereinabove shall remain confined to disposal of this petition only and will have no effect whatsoever on the merits of the case.

21. Accordingly, the case is disposed off.