An offence under S.27(b) of the Drugs and Cosmetics Act, 1940, which is punishable with imprisonment for life, is exclusively triable by the Court of Session.

Anil K. Sen, J.:- This reference under S.395 (2) of the Cr. P.C., 1973 (hereinafter referred to as the new Code) by the Chief Metropolitan Magistrate, Calcutta raises a question of law on which there has been a sharp difference of opinion between the learned Chief Metropolitan Magistrate and the learned Judge, City Sessions Court at Calcutta, 4th Bench. The question involved is as to whether an offence under S.27 (b) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the said Act) is exclusively triable by the Court of Session or not.

2. The facts leading to the making of the reference may shortly be stated:

On November 12, 1974 the police seized from the possession of Bijoy Kumar Chatterjee and Joydev Chatterjee (2nd party in this letter of reference) a huge quantity of various brands of medicines marked for physician's sample stocked by them for sale in violation of R.65 (18) of the Drugs and Cosmetics Rules, 1945. As a result the police submitted a charge-sheet under S.27 (b) of the said Act and S.120-B of the Indian Penal Code against them. It is not in dispute that such an offence under S.27 (b) of the said Act as it stands amended by the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act (West Bengal Act 42 of 1973 S.5, Cl. (iii)) in its application to West Bengal is punishable with imprisonment for life or with fine or with both. Prior to the Amendment such an offence was punishable with imprisonment for a term which could extend to ten years or with fine or with both. The offence being punishable with imprisonment for life, the learned Chief Metropolitan Magistrate took the view that it was exclusively triable by the Court of Session and as such he by an order dated September 9, 1975 committed the accused persons to the Court of Session.

3. When the case (being the Sessions Case No. 36 of 1975) came up for trial before the learned Judge, City Sessions Court, 4th Bench two petitions were filed, one on behalf of the Public Prosecutor and the other on behalf of the accused persons praying for transferring the case for trial to the Chief Metropolitan Magistrate on the ground that the offence is not exclusively triable by the Court of Session. The learned Judge, City Sessions Court conceded this prayer and by an order dated Feb. 9, 1976 transferred the case for trial to the Chief Metropolitan Magistrate under the provisions of S.228 (1) (a) of the new Code.

4. The case having been sent back to the Court of the Chief Metropolitan Magistrate, the Public Prosecutor appearing before him, however, took the stand that the learned Chief Judicial Magistrate had no jurisdiction to try the case, the offence being punishable with imprisonment for the life. The learned Chief Metropolitan Magistrate agreed with the Public Prosecutor and took the view that he had not the jurisdiction to try the case. Hence he made the reference as aforesaid to this Court for deciding the issue on which the two Courts had differed viz. as to whether the offence is exclusively triable by the Court of Session or not.

5. Inconsistent stand having been taken by the two Public Prosecutors appearing before the two Courts, we thought it necessary to hear both of them in support of their respective view point. We have also heard the learned Advocate for the State appearing before us in this Court and Mr. Dey, the learned Advocate for the accused persons. On anxious consideration of the respective contentions put forward before us on the point we have, however, come to the conclusion that the view taken by the learned Chief Judicial Magistrate is correct and we proceed to give our reasons therefor.

6. Section 26 (b) of the new Code which corresponds to S.29 of the Criminal P.C., 1898 (hereinafter referred to as the old Code) is as follows:

"26. Subject to the other provisions of this Code ... ..... .... .... .... ....

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