IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 23 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BHARATKUMAR AMRATLAL SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 23 of 2002 MR AD SHAH for Petitioners No. 1-7 MR BD DESAI Ld. APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 16/03/2002 ORAL JUDGEMENT This revision application has been preferred by the original accused of Criminal Case No. 498 of 1992 instituted on the strength of a complaint filed by the Drug Inspector Mr. RK Prajapati on 15.6.1992 for the offences punishable under section 27 and 27(A) read with section 18(a)(i), 18(a)(vi), 18(c) and sec. 28 and 28(a) of the Drugs and Cosmetics Act, 1940 ( hereinafter referred to as "the Act") The criminal complaint by the Drug Inspector for the offences punishable under section 18(a)(1), 1`8(b), 18(a)(vi), 18(c) as well as Section 27, 28 and 28(a) of the Drugs and Cosmetics Act came to be filed in respect of searches carried out by the Drug Department at different Medical Stores. The samples collected during the searches carried out on 15.7.1991 and 16.7.1991 of the Drugs were sent for the analysis to Government Analyst, Vadodara. According to the prosecution, the same were found not according to the standard, misbranded, adulterated and spurious, and therefore, the accused were informed about the report of the Analyst and, thereafter the complainant has filed the complaint on 16.6.1992 in the Court of Ld. Chief Metropolitan Magistrate, Ahmedabad. The complainant being public servant, ld. Metropolitan Magistrate issued process without recording formal statement of the complainant on oath. The case against the present petitioner registered as a private complaint within the meaning of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") and is not a case instituted on police report. There was no progress in the criminal case registered against the present petitioner for about 3 and 1/2 years, it is on record that on 20.1.1996 learned APP appearing for the complainant (State) has submitted an application ex. 5 requesting the Ld. Chief Metropolitan Magistrate to commit the case to the Court of Sessions as the offence under sec. 27(a) of the Act providing life imprisonment was exclusively triable by the Court of Sessions. This application was resisted by the petitioners-accused and a written resistance was placed before the ld. Chief Metropolitan Magistrate (Hereinafter referred to as the "ld. Magistrate"). Considering the rival contentions, ld. Magistrate rejected the application filed by the Ld. APP vide order dated 29.9.2001, i.e. to say that after lapse of about 5 and 1/2 years. The applicant-State of Gujarat being aggrieved by the said order passed by the ld.Magistrate invoked revisional jurisdiction u/s. 397 of CrPC and moved revision application being Criminal Revision Application NO. 178 of 2001 before the Court of City Sessions, Ahmedabad. Considering and accepting the submissions of learned APP, the learned Addl. City Sessions Judge (Court No. 10), Ahmedabad allowed the revision application and in turn quashed and set aside the order passed by the ld. Magistrate dated 29.9.2001, and the ld. Magistrate has been directed to commit the case against the present petitioners to the Court of Sessions under sec. 209 of Cr.P.C. at the earliest. The Original accused-present petitioners being aggrieved by the order passed by the ld. Addl. City Sessions Judge on 21.12.2001 has preferred this revision application and has assailed the legality of the order. I have heard learned counsel Mr. AD Shah for the petitioner and Mr. BD Desai learned APP for the respondent-State at length. According to the petitioners, ld. Addl. City Sessions Judge has seriously erred in not considering the relevant provisions of the Act in its proper perspective, especially the provisions of section 32 and 36 of the said Act. It is also the grievance of the petitioner that the ld. Judge ought to have seen that legislature has provided for trial by Metropolitan Magistrate or a Judicial Magistrate First Class of all the offence punishable under Chapter-IV of the Act. It has equally considered the general powers under CrPC of such Judicial Magistrate and empowered concerned Magistrate to impose appropriate sentence authorized by the Act. It is submitted that section 26 of the Cr.P.C. clearly provides for jurisdiction and sec. 29 empowers to impose sentence for the offence triable by the Metropolitan Magistrate and Judicial Magistrate First Class. Section 36 of the Act ought to have been considered in its correct perspective. Ld. Addl. City Sessions Judge ought to have held that Parliament must be conscious of the provisions of sec. 26 and 29 of the CrPC. According to Mr. Shah, the provisions of sec. 36 of the Act being special provision in a special Statute, begins with non-obstante clause. The scope to read section 29 of CrPC was not at all there, however, ld. Sessions Judge has done the exercise to evaluate the entire scheme of CrPC and the Act i.e. Drugs & Cosmetics Act and has tried to see that as to whether there is any disharmony or conflict. The decision considered by the ld. City Sessions Judge are also not in correct perspective and especially the judgment in the case of Ranjit Chatterjee vs. State of West Bengal ( 1986 Criminal Law Journal p. 1847) of Calcutta High Court has not been considered in the true spirit of its ratio. According to Mr. Shah this special act empowers the Metropolitan Magistrate or Judicial Magistrate First Class to pass any sentence authorized by the Special Act. Section 32 read with section 36 of the Act provides for special procedure under Special Act and when the offence under sec. 27(a) is triable by the Magistrate, the Parliament has provided for empowering such Magistrate to impose such punishment as prescribed under sec. 27(a) of the Act. The applicability of the CrPC is totally excluded in light of the provision of sec. 5 of CrPC. Mr. Shah has quoted the observations of the Calcutta High Court in the case of Ranjit Chatterjee (supra), which is also reflected in the ground-(d) of the Memo of Revision. It is observed in the decision that : "Reading S. 5 and clause (b) of s. 26 of the Code of Criminal Procedure, it is, therefore, clear that the special jurisdiction and power vested in the learned Magistrate under the special statute is not affected by any other specific provision to the contrary either in the Code itself or in the special statute completely covering the field of the other and laying down a contrary rule so as to altogether nullify the other. There is thus really no conflict between the special jurisdiction and powers given to the learned Magistrate under the special statute and the first schedule concerning other laws." According to Mr. Shah though the order passed by the Ld. Magistrate is not a detailed order discussing the entire set of argument advanced before me and has not discussed all the provisions brought to the notice but ultimately the finding of the ld. Magistrate is in accordance with law and the Ld. Addl. City Sessions Judge ought not to have disturbed the finding. The revision application of the State should have been dismissed. It is one of the facet of the argument of Mr. Shah that ld. Addl. City Sessions Judge ought to have called for the R & P from the Court of Ld. Magistrate, Ahmedabad. In such an eventuality, there is scope to a Chief Metropolitan Magistrate to send the detailed report stating reasons for the orders passed by the presiding judge of the Court. The written resistance also could have assisted the ld. Addl. City Sessions Judge in appreciating the legality and propriety of the order passed by the Ld. Magistrate. Considering the jurisdiction of revisional court and compass, according to Mr. Shah, the error accrued because the ld. Addl. City Sessions Judge has not called for R & P otherwise the ld. Addl. City Sessions Judge ought not have disturbed the finding. During the course of oral submissions, Mr. Shah has taken this Court through certain decisions including the decision referred by the ld. Addl. City Sessions Judge in the impugned order. The decision of the Apex Court in the case of State of Uttar Pradesh vs. Khushi Ram, reported in AIR 1960 SC p. 905 is brought to the notice of this Court dealing with mostly similar provisions of Prevention of Food Adulteration Act i.e. sec. 21 of PFA Act, 1954. The decision of the Calcutta High Court in the case of State vs. Bejoy Kr. Chatterjee and Ors. reported in 1977 Cr. L.J. p. 1503 is also brought to the notice by Mr. Shah. In support of his arguments Mr. Shah was analyzing the scheme of section 32 of Cr.P.C.(Old) and other relevant provisions in reference to section 32 and 36 of the Act. Submissions of ld. Counsel Mr. S.N. Dey advanced before the Calcutta High Court while assisting the High Court in course of hearing in case of Bejoy Kr. Chatterjee (supra), according to Mr. Shah, indicates the correct proposition of law. In the present case, the petitioners had never prayed for committal of the case to the Court of Sessions nor the ld. Metropolitan Magistrate had initiated committal proceeding but it was wrongly attempted by Ld. APP, the same was resisted. So, the present case cannot be equated with the case where the legality and validity of the committal proceedings under sec. 209 is challenged at a later stage or at the fag end of trial. According to Mr. Shah that there was no need for the Ld. Addl. City Sessions Judge in disturbing the finding recorded by the Ld. Magistrate. On the other hand, ld. APP Mr. BD Desai has argued that considering the gravity of the offence and punishment prescribed, the order passed by the Ld. City Sessions Judge requires to be upheld and the revision should be dismissed. According to Mr. Desai, if the case is committed to the Court of Sessions, the accused are not likely to be prejudiced. They have also failed in showing that the order passed by the Ld. Addl. City Sessions Judge is likely to prejudice either side and the trial, if conducted, in the court of sessions, it can be said to be a trial before the court having proper jurisdiction. The decision of the Calcutta High Court brought to the notice of the learned Addl. City Sessions Judge, according to Mr. Shah, has been correctly interpreted. When two views were brought to the notice of Ld. Sessions Judge having only persuasive value more rational found by the Judge has been accepted. In the present case, merely because the original accused persons are not to receive or to get the set of documents or the statements of witness as the same has not been recorded by the ld. Magistrate, it would be incorrect to presume that this would lead to an unfair trial. The judgment of the Apex Court reported in (2000)2 SCC p. 230 has been considered and the submissions made in reference to section 208 of Cr.P.C. have not been accepted in the correct legal perspective as the Apex Court has held that the inquiry as contemplated under sec. 202(2) in the case of exclusively triable by the Court of Sessions is directory and not mandatory. In the present case, as the complainant is a public servant and the court has issued process without recording formal statement even of the complainant on oath, there may not be any document which can be provided to the accused at the time of committal of the case. According to Mr. Desai, no serious error has been committed in interpreting the legal provisions and the citations brought to the notice of the ld. Addl. City Sessions Judge. Of course, Mr. Desai has fairly submitted that the decision of the Apex Court reported in case of State of Uttar Pradesh vs. Khushi Ram (supra) if would have been brought to the notice of the Ld. Addl. City Sessions Judge, than the ld. Judge might have recorded the finding otherwise. Mr. Desai has also fairly submitted that if this Court feels that the ratio of the decision of the case of State of Uttar Pradesh vs. Khushi Ram (supra) was not brought to the notice of the Ld. Addl. City Sessions Judge and it goes to the root of the merits of the matter, than this Court should send the matter back to the ld. Addl. City Sessions Judge directing her to call for the R & P from the Court of Ld. Chief Metropolitan Magistrate, Ahmedabad and to decide the issue afresh in the light of the said decision of the Apex court. For short, the submissions of Ld. APP Mr. Desai is of two fold. To appreciate the case of the present petitioners, it is necessary to refer the relevant provisions of section 29 of CrPC (Sec. 32 of the Old Code) because as the ld. Addl. City Sessions Judge has tried to see harmony/disharmony and its effect in reference to section 32 and 36 of the Act. Section 29 of the Code reads thus: S. 29. Sentence which Magistrate may pass.-(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or imprisonment for life or of imprisonment for a term exceding seven years. (2) The Court of Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. It is pertinent to note that mostly the empowering sections have automatic effects providing embargoes and/or limitations. Courts have dealt with qualifying areas of such enactments with utmost care. The quantum of punishment in terms of substantive sentence and also in terms of fine is concerned, the Chief Metrpolitan Magistrate and Chief Judicial Magistrate are empowered to impose any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. There is no embargo as the amount of fine is concerned. The Chief Metropolitan Magistrate is empowered to impose any amount of fine, of course, but subject to restriction of section 63 of IPC. Section 63 of IPC provides that the amount of fine should not be excessive. When a similar complaint is filed in the Court of JMFC, whether the embargo as to the amount of fine and the quantum of punishment prescribed in sub section 2 of section 29 whether would operate is also one of the question raised by Mr. Shah during the course of submissions and according to him, no such embargo would operate irrespective of the limitations and empowerment of sub section 2 of section 29 because sec. 36 of the Act provides and empowers JMFC to pass any sentence authorized by this Act ( i.e. Drugs & Cosmetics Act, 1940) in excess of his powers under the said code. The word "said Code" is in reference to CrPC, 1973. The non-obstante clause shall have to be read in reference to the entire scheme reflected in section 36 of the Act. It would be proper, at this stage, to reproduce the relevant section 36 of the Act, which reads as under: "36. Magistrate's power to impose enhanced penalties. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the First Class to pass any sentence authorized by this Act in excess of his powers under the said Code." As per the law of interpretation, non-obstante clause have preventive effect, means while reading section 36 of a special statute, the reader is prevented from reading or considering the provisions which are not supposed to be looked into (i.e. sec. 26 & 29 of CrPC). So, any provisions of CrPC empowering Magistrate to impose penalties are not required to be read or considered by any Metropolitan Magistrate or JMFC while passing any sentence authorized by the Act. So, JMFC can impose the amount of fine in excess of Rs. 5000/ and can impose sentence more than authorized under the CrPC. The back-bone of submission of Mr. Shah has remained consistent through out i.e. before the Ld. Magistrate and before the Ld. Addl. City Sessions Judge and also before this Court that the empowerment provided under sec. 36 would go to the extreme limits i.e. life imprisonment. In reference to section 36 of IPC a JMFC can impose life imprisonment and a fine of any amount which is not excessive in eye of law if such offence is proved and need severe punishment. The certified copy of the written resistance submitted to the ld. Magistrate is also on record vide Annexure-B. The Act being a Special Act dealing with the offence relating to the Drugs and Cosmetics provides for some special procedure and in the procedure, the Act has simultaneously provided for some wide powers to a Magistrate who is trying the criminal case filed for the offence punishable under this Act. In case of Bejoy Kr. Chatterjee (supra) the reasons developed and given by Calcutta High Court says that "we are however, unable to accept this contention. The distinction between S. 26 provides for jurisdiction and S. 29 which corresponds to S. 32 of the old Code merely imposes a limit as to sentences which Magistrates may pass are quite distinct and distinguishable from each other. The provision in S. 36 which clearly seeks to override the bar as to sentence which a Magistrate can pass without overriding the provision as to jurisdiction in S. 26, cannot be so interpreted as to do the latter. There are provisions in the said Act itself, like S. 15 and S. 32 (prior to its amendments) which provided for jurisdictional matters. The legislature was therefore, quite conscious about the necessity of providing for jurisdiction as when it thought necessary, but did not do so in enacting s. 36 and hence that section in our opinion should not be so interpreted as to prescribe any specified jurisdiction in the manner contended for by Mr. Dey. In the circumstances, we accept the contention of Mr Basu and the learned Advocate for the State who was appearing before us and hold that the learned Chief Judicial Magistrate was right in his view that the offence under S. 27(b) is exclusively triable by Court of Session and he himself had no jurisdiction to try such an offence." However, in case of Ranjit Chatterjee (supra) after referring the case of Khusi Ram (supra) it has been observed that : "Thus, in view of provisions relating to Special Act as contained in Section 36 of the Drugs & Cosmetics Act, 1940, the question of committing the case to the Court of Sessions under section 209 does not arise." Attention of this Court has been drawn to section 21 of PFA Act, 1954. It would be proper to quote the relevant provisions, so that the ratio of the decision in reference to section 21 of PAF Act can be appreciated in appropriate perspective. As referred earlier, this provision is mostly similar to section 36 of the Act. Section 21 of the PFA Act reads as under: "Section-21: Magistrate's power to imposed enhance penalties.- Notwithstanding anything contained in Sec. 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorized by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his power under the said section." Section 21 was amended in the year 1976 with effect from 1.4.1976. Prior to 1976, in the section, there was reference to section 32 of CrPC, 1898. Section 32 of CrPC(old) referred in the original section 21 deals with the sentence which Magistrate may pass. While in the amended section 21, section 29 of the new CrPC which correspond to section 32 of Old CrPC is referred. Section 29 of new CrPC is nothing but earlier provision of sec. 32 with certain modifications. After coming into operation of new CrPC, 1973, the provisions of section 21 of PFA Act has been amended. There are provisions to impose the life imprisonment or to impose sentence for a term exceeding six years in PAF Act, therefore, it is specifically provided vide section 21 of PFA Act that it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the First Class to pass any sentence authorized by this Act which may go up to six years. The phrase "in excess"of its powers under the said section 21 of PFA Act in reference to non-obstante clause if looked into it can be inferred that section sub-section -2 of section 29 of CrPC putting an embargo shall have no effect and it would not be correct or legal to say that a Magistrate of the First Class would not be entitled to impose imprisonment beyond the period of six years and he cannot impose fine exceeding Rs. 5000/ or both while trying the offence punishable under the PFA Act. Judicial Magistrate of the First Class can impose imprisonment of six years and can impose fine which cannot be said to be excessive in reference to section 63 of IPC irrespective of the embargo of Rs. 5000/ in above referred sub-section 2 of section 29 of CrPC. In the same way, the Court of Chef Metropolitan Magistrate have powers of the Court of Chief Judicial Magistrate but Chief Metropolitan Magistrate or Chief Judicial Magistrate would not be entitled to impose imprisonment exceeding six years, though sub-section(1) of section 29 authorizes the Chief Judicial Magistrate to impose imprisonment for the term not exceeding seven years. The Chief Metropolitan Magistrate and Chief Judicial Magistrate, therefore, shall have limit in their power of imposing imprisonment up to six years because of the scheme of PFA Act. So the type of offences contemplated to be committed to the Court of Sessions, the CrPC would not be relevant, irrespective of the quantum of punishment. In number of decisions of this Court and the Apex Court while dealing with the provisions of Special Statute in reference to the general law and procedural laws such as CrPC, CPC, Limitation, Meettings, Interest, Maintenance etc. has observed that if there is clear inconsitency between the two, the provisions of Special Law/Statute would prevail especially when overriding effect of the non obstante clause is there. Section 5 of CrPC is very well available and the same was brought to the notice of the Courts below. It is true that a special enctament or rule cannot be held to be overridden by a later general enactment or simply because the latter opens up with a non-obstante clause, but in the present case, the subsequent enactment, as amended, give overriding effect.