1. The instant Criminal Revision has been preferred against order dated 24.07.2017 passed by the learned Chief Judicial Magistrate (1st Class), Banihal in File No.22/Complaint titled Drugs Inspector, Ramban vs Tawkeer Yousuf Khan whereby the trial court has discharged respondent from the charges leveled against him.

2. The main ground of challenge to the impugned order is that the learned CJM, Banihal is not competent to conduct the trial as the complaint was triable by Sessions Court in view of Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940. The order of the court below is also wrong as the court below has not properly appreciated the material and the evidence produced on record.

3. I have considered the rival contentions of learned counsel for the parties.

4. Learned counsel for the petitioner has reiterated all the grounds taken in the petition, whereas the learned counsel for the respondents has supported the order of the court below.

5. I have given my thoughtful consideration to the whole aspects of the matter. From bare perusal of record, it appears that the petitioner filed a complaint under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 against the respondent on the allegation that on 10.05.2011, the then Drug Inspector, Ramban, along with his other team members, inspected the premises of accused/respondent and he was found to be selling, stocking and exhibiting for sale drugs without having any Drug Sale Licence as required under the Drugs and Cosmetics Act, 1940 and Rules framed there-under and hence, was found guilty of commission of offences under Section 18(c) read with Section 27)b)(ii) of the Drugs and Cosmetics Act, 1940.

6. After filing the said complaint, complainant produced the evidence and after completing the evidence, the case was fixed for arguments with regard to framing of charge. The court below by virtue of the impugned order dismissed the complaint. The court below conducted trial as warrant case.

7. Section 27 of thedefines Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter and the sub section (b) of Section 27 read as under:-

"Whosoever himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes -

(a)--------------------

(b) any drug-

(i) deemed to be adulterated under Section 17-A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall (not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more)."

8. In present case, admittedly, it is the case of prosecution that accused was found selling drugs without license, so in terms of section 27 (b) (ii), the alleged offence was punishable with imprisonment not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated.

9. Now section 32 of the Drugs and Cosmetics Act, 1940 reads as under:-

"32 Cognizance of offences.- (1) No prosecution under this Chapter shall be instituted except by

(a) an Inspector; or

(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or

(c) the person aggrieved; or

(d) a recognised consumer association whether such person is a member of that association or not.

(2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter.]

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."

10. From bare perusal of this section, it is evident that complaint was triable by Court of Sessions and Magistrate was, thus, not competent to conduct trial.

11. In 561-A Cr.P.C. No. 424 of 2016 decided on 22.9.2016, in case titled Banu Enterprises Vs. State of Jammu and Kashmir and others, a coordinate Bench of this Court allowed the petition and set aside the order impugned therein by holding that the Court of Sessions cannot take cognizance without committal proceeding, the relevant extract of order reads as under:-

"9. Learned Addl. AG very fairly states that in view of the fact that there is no express provision unlike in the case under the NDPS Act empowering the designated Court i.e the Court of Sessions to take cognizance of the matter straightway without committal by the Court of Magistrate under Section 193 of the Cr.P.C., the taking of cognizance of the complaint by the learned designated Court i.e. the Court of Sessions Judge, Kathua is not as per the correct appreciation of law. He, however, contends that although he does not oppose the legal position, as noticed above, yet the same should not be construed as absolving the petitioner. The apprehension of learned Addl. AG is not justified since setting aside of the order of learned Sessions Judge taking cognizance of the complaint dehors the provisions of Section 193 of the Cr.P.C., would only result in the matter being considered by the competent Court with regard to consideration of the matter for committal proceedings under Section 193 of Cr.P.C., i.e. the Court of Chief Judicial Magistrate and depending upon the orders of the CJM in terms of Section 193 of the Cr.P.C. further action would be taken as may be warranted under law.

10. With the aforementioned orders, the order passed by the learned Sessions Judge, Kathua dated 04.09.2013 is quashed (at page-46). However, it is made clear that respondents would be at liberty to take action qua the complaint in accordance with law by filing the same before the Court competent to take cognizance of the same in terms of Section 193 Cr.P.C.

11. Petition along with MP No.01/2016 allowed in aforementioned terms."

12. In view of above law, Magistrate has only to commit the case to Session Judge and not to conduct the trial itself; therefore, whole trial conducted by trial court in complaint was without jurisdiction.

Hence, the instant petition is allowed and order impugned is set aside. The matter is remitted back to Magistrate to proceed in the matter strictly according to law.