( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 815 OF 2009 Raju s/o Dhanraj Rathi, R/o Nasik, Dist. Nasik. PETITIONER VERSUS The State of Maharashtra, through the Secretary, Food & Drugs Department, Mantralaya, Mumbai, at the instance of Mr. A.G. Udhoji, Drug Inspector, Jalgaon. RESPONDENT ..... Mr. R.R. Mantri, advocate for the petitioner. Mr. K.S. Patil, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th October, 2009] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the petitioner and learned A.P.P. for the State. 2. The petitioner is a proprietor of M/s Prince ( 2 ) Pharmaceuticals. On basis of certain information received by him, Drugs Inspector Shri Arun Udhoji visited medical stores of Cottage Hospital, Chopda on 07-12-1992. He noticed that there was stock of various drugs including stock of Mebendazole tablets IP (Batch No. FT-169). The tablets were purportedly manufactured by M/s Goa Antibiotics & Pharmaceuticals Ltd., Pernem Goa. His inquiry revealed that the said tablets were supplied by the petitioner on 09-09-1992 to the Cottage Hospital, Chopda, vide invoice No. GS/73 dated 28-08-1992. He recorded statement of the compounder of the Cottage Hospital. He subsequently issued directions that the stock shall not be used by the Cottage Hospital. He seized the stock and sent sample of the tablets to the Government Analyst. He received report of the Analyst on 21-04-1993. The report indicated that the sample in question was found to be of standard quality, but it was misbranded. Consequent upon further inquiries and collection of necessary documents, he filed complaint for offence punishable under section 18 (c) read with rule 65 (17), punishable under section 27 (d) of the Drugs and Cosmetics Act, 1940. ( 3 ) 3. The learned Judicial Magistrate discharged the petitioner at the peremptory stage. The learned Magistrate held that there was no tangible material to proceed against the petitioner. He held that the petitioner was not proved to be supplier of the alleged drug i.e. the tablets of Mebendazole to the Cottage Hospital. The learned Magistrate also held that the petitioner deserved discharge because copy of the report of the Government Analyst was not furnished to him and, hence, his valuable right was frustrated. 4. The respondent (State) preferred criminal revision application No. 10/2003 which came to be allowed by the learned Additional Sessions Judge, Amalner. The learned Additional Sessions Judge held that discharge of the petitioner was impermissible in as much as no evidence was recorded under section 244 (1) of the Criminal Procedure Code. The learned Sessions Judge held that unless proper opportunity is given to the complainant to adduce evidence, such premature discharge of the petitioner was illegal. The learned Sessions ( 4 ) Judge held that whether the petitioner was actual supplier of the drug in question is a matter of evidence and mere entries in the stock register could not be decisive. In this view of the matter, the revision application came to be allowed and the discharge order was set aside. 5. Question involved in this petition is whether it is mandatory to record evidence before considering the request for discharge. Having heard learned counsel and learned A.P.P. and on consideration of the relevant provisions under sections 244 and 245 of the Criminal Procedure Code, it is conspicuous that recording of evidence is utmost necessary in a warrant triable case, instituted on a private complaint, if charge is to be framed. So, even if the accused gives concession that the charge may be framed against him, then also the Magistrate cannot act upon such concession and frame the charge, but is under obligation to record the evidence as contemplated under section 244 (1) of the Criminal Procedure Code. Still, however, the legal position is quite different in case discharge is to be ordered. Sub- ( 5 ) clause (2) of section 245 of the Criminal Procedure Code would make it manifestly clear that the Magistrate may discharge an accused if it is noticed that the charge is groundless. There are two (2) distinct provisions enumerated in section 245 of the Criminal Procedure Code. The sub-clause (1) of section 245 mandates the Magistrate to discharge an accused if upon taking all the evidence referred to in section 245 (1), he considers that no case against the accused has been made out which, if unrebutted, would warrant his conviction. The litmus test to be applied is whether the evidence adduced under section 244 (1) provides for a blueprint of conviction, which if it stands as it is, would be sufficient to convict an accused. However, sub-clause (2) of section 245 of the Criminal Procedure Code operates in different field. A plain reading of sub- clause (2) would make it manifestly clear that the Magistrate is not prevented from discharging the accused at any previous stage. The expression “previous stage” as used in sub-clause (2) of section 245 of the Criminal Procedure Code would show that the stage is not necessarily one under section 244 (1) of the Criminal ( 6 ) Procedure Code and it is referable to any other stage which could precede the stage of recording evidence before the charge. The only care which a Magistrate is required to take is to examine whether on the basis of material available on record, the charge can be regarded as “groundless”. In other words, if the Magistrate, on horizontal examination of the record, finds that there is absolutely no material to proceed against the accused and that the prosecution can be grounded at the preliminary stage itself, then the discharge can be ordered. In view of this legal position, the learned Sessions Judge committed an error while holding that the Magistrate had no power to discharge the petitioner without recording of evidence. Needless to say, the impugned order is unsustainable. 6. The petition involves certain disputed questions of facts. It is required to be examined whether the petitioner is actual supplier of the drug i.e. Mebendazole tablets I.P. (Batch No. FT-169) to the Cottage Hospital, Chopda. It is also required to be determined on basis of material which is on record as to ( 7 ) whether copy of the report of the Government Analyst was furnished to the petitioner. Considering these aspects, the petition is partly allowed. The impugned judgement and order rendered in criminal revision application No. 10/2003 is set aside. The matter is remanded to the revisional Court by restoring the criminal revision application No. 10/2003 with direction that the relevant material on record may be considered and the criminal revision application may be decided afresh without being influenced by any of the observations of this Court. The revision application be decided on its own merits within period of six (6) months, as far as possible. The parties are directed to appear before the learned Sessions Judge on 16th November, 2009. All points are kept open. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp815.09