The jurisdiction of a Magistrate to try offences under the Drugs and Cosmetics Act remains valid despite amendments, as certain sections preserve this jurisdiction for offences with lesser penalties.

JUDGMENT :

SUSHIL M. GHODESWAR, J.

1. Heard.

2. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

3. The petitioners are challenging the order dated 16.10.2019 passed by the learned Judicial Magistrate First Class, Majalgaon, District Beed, on applications below exhibits 1 and 16 in RCC No.41/2005 thereby, allowing the applications filed by the respondent/ prosecution and committing the case to the Sessions Court.

4. While issuing notice to the respondent on 22.01.2020, this Court has granted interim relief thereby implementation of the impugned order has been stayed.

5. According to the petitioners, they are having valid license issued by the Drugs Controller, Jaipur, Rajasthan for manufacturing the drug Lupizyme 200 ml. On 04.03.2005, the respondent filed the complaint before the learned Judicial Magistrate First Class, Majalgaon alleging therein that, he is appointed as a Drug Inspector under the provisions of Drugs and Cosmetic Act, 1940 and is authorized to institute the prosecution u/sec.32 of the Drugs and Cosmetics Act, 1940 (for short, ‘the Act’). It was alleged in the complaint that, on 29.07.2003 the complainant visited the premises of M/s Shriklrushna Distributors, Majalgaon and drew the sample of Lupizyme manufactured by petitioner No.3 company. After sending the drugs for analysis, the report was received from the Government Analysis, Drug Control Lab, Mumbai on 16.10.2003 wherein it was reported that, drug is not of standard quality. It is, therefore, alleged that, the present petitioners / accused have committed the offence u/sec. 18 (a) (i) r/w section 16 and 34 of the Drugs and Cosmetic Act, 1940 which is punishable u/sec.27 (d) of the said Act. Accordingly, complaint bearing RCC No.41/2005 came to be filed.

6. The petitioners further contended that on the basis of the said complaint, the learned Judicial Magistrate First Class, Majalgaon issued process by order dated 04.03.2005 against the accused petitioners. However, the respondent prosecution filed an application below Exhibit 16 for committing the case to the Sessions Court, Majalgaon alleging therein that, as per the amendment to the Drugs and Cosmetic Act, 1940, in the year 2009 i.e. on 10.08.2009, the case will have to be committed to the learned Sessions Court at Majalgaon as per section 32 (2) of the Act.

7. The petitioners contended that the petitioners opposed said application below Exh. 16 contending that, in view of the fact that the case was filed in the year 2005, the amended Act and the provisions would not be applicable retrospectively. It was further contended that, in view of section 36 (A), the offence will have to be tried in a summary manner as the punishment provided u/sec.27 (d) is up to two years. However, the learned Judicial Magistrate First Class, Majalgaon by the impugned order dated 16.10.2019 was pleased to allow the application below Exh. 16 holding that, Amendment Act 26 of 2008 will have retrospective effect and that section 32 (2) clearly mandates that, offences are triable by Sessions Court and hence, the case was committed to the Sessions Judge, Majalgaon. Hence, the petitioners are before this Court.

8. The learned advocate for the petitioners submitted that the learned JMFC has committed an error while passing the impugned order. Learned advocate specifically contended that the learned Magistrate has only considered the provisions of Section 32 (2) without reading Section 36 -A, when the legislature has amended Section 32 and Section 36 -A on the very same day. Therefore, the learned Magistrate has committed manifest error of law while passing the impugned order. As su