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1989 Supreme(All) 511
IN THE HIGH COURT OF ALLAHABAD
B. L. YADAV
PREM PAL VARSHNEY - Appellant
Versus
UNION OF INDIA - Respondents
Criminal Revn. 481 Of 1987
Decided On : 11/01/1989
Jagdish Tewari, R.K.SHANGLU, T.P.Asthana
Section 36 of the Drugs and Cosmetics Act 1940 is not applicable in cases where the sentence sought to be imposed is beyond the power of the Magistrate under Section 29 of the Code of Criminal Procedure 1973.
Headnote:
CRIMINAL REVISION - Section 27 (1) (b) read with Sections 18 (a) (I), 18 (a) (II), 18 (a) (II-A) and Section 18 (a) (VI) of the Drugs and Cosmetics Act 1940 - Whether in a case where the maximum punishment is imprisonment for life, which is triable exclusively by the Court of Session, can the Chief/additional Chief Judicial Magistrate, who can award maximum sentence of seven years in view of Section 29 of the Code of Criminal Procedure 1973, try the case himself or commit it to the Court of Session.
Fact of the Case:
The applicant, accused of offenses under the Drugs and Cosmetics Act, challenged the order of the Additional Chief Judicial Magistrate directing him to commit the case to the Court of Session. The applicant argued that the Additional Chief Judicial Magistrate could pass any sentence prescribed by the Act in excess of powers given to him under the Code, relying on Section 36 of the Act.
Finding of the Court:
The court held that Section 36 of the Act and Section 29 of the Code have to be harmoniously interpreted. The court found that the sentence sought to be imposed was of life imprisonment whereas Chief Judicial Magistrate was not empowered to pass a sentence of life imprisonment or a sentence of imprisonment for a term exceeding seven years, hence obviously it was beyond his power to impose the sentence contemplated under the aforesaid Section of the Act.
Issues: 1. Whether the Additional Chief Judicial Magistrate could commit the case to the court of session, when under Section 29 of the Code he could not pass a sentence of life imprisonment, or imprisonment for a term exceeding seven years, whereas the offence disclosed under the aforesaid sections of the Act was punishable under Section 27 of the Act for life imprisonment. 2. Whether Section 36 of the Act was applicable in the present case, where the sentence sought to be imposed was of life imprisonment and the Chief Judicial Magistrate was not empowered to pass such a sentence.
Ratio Decidendi: 1. The court interpreted Section 36 of the Act and Section 29 of the Code harmoniously, holding that Section 36 was not applicable in cases where the sentence sought to be imposed was beyond the power of the Magistrate under Section 29 of the Code. 2. The court relied on the legislative history of Section 36 of the Act and the power of the Magistrate under Section 29 of the Code to conclude that Section 36 was enacted to address a specific situation where the Magistrate's power under the Code was insufficient to impose the punishment prescribed by the Act. However, in the present case, the sentence sought to be imposed was of life imprisonment, which was beyond the power of the Magistrate under both Section 29 of the Code and Section 36 of the Act.
Final Decision: The court dismissed the revision petition, upholding the order of the Additional Sessions Judge directing the Chief Judicial Magistrate to commit the case to the Court of Session.
B. L. YADAV, J.
( 1 ) WHETHER in a case under Section 27 (1) (b) read with Sections 18 (a) (I), 18 (a) (II), 18 (a) (II-A) and Section 18 (a) (VI) of the Drugs and Cosmetics Act 1940 as amended by the U. P. Amendment Act No. 47 of 1975 (for short the Act), where the maximum punishment is imprisonment for life, which is triable exclusively by the Court of Session, can the Chief/additional Chief Judicial Magistrate, who can award maximum sentence of seven years in view of Section 29 of the Code of Criminal Procedure 1973 (for short the Code), try the case himself or commit it to the Court of Session, is the short point for consideration under present criminal revision by one of the accused.
( 2 ) THE Additional Chief Judicial Magistrate by is order dated 23-9-1985 held that he need not commit the case to the Court of Session, rather he would try it himself, where as in revision against that order it was held by the Additional Sessions Judge in his order dated 10-12-1986 that the Additional Chief Judicial Magistrate must refer it to the Court of Session as the case was triable exclusively by the Court of Session. Against that order of Additional Sessions Judge present Criminal Revision has been filed. The prayer is that the impugned order directing the Additional Chief Judicial Magistrate to commit the case to the Court of Session may be set aside.
( 3 ) THE factual matrix in brief is that in a complaint filed by the Drug Inspector in respect of offence under aforesaid sections of the Act process was issued against the applicant and another. They appeared before the Magistrate concerned. The Drug Inspector made an application that the case may be committed to the Court of Session under Section 209 of the Code as the offence disclosed under the aforesaid Section of the Act, was punishable under Section 27 of the Act (as amended by U. P. Amendment Act No. 68 of 1982) and the Punishment provided was for life imprisonment and the Additional Chief Judicial Magistrate could not pass sentence for life imprisonment or imprisonment for a term exceeding sever years. The Additional chief Judicial Magistrate by his order dated 23-9-1985 held that there was no need to commit the case to the court of session. Against that order of Chief Judicial Magistrate, Union of India filed revision which was allowed by the impugned order and Chief Judicial Magistrate was directed to commit the case to the Court of Session.
( 4 ) MR. R. K. Shangloo, learned counsel for the applicant strenuously urged that in view of Section 36 of the Act Additional Chief Judicial Magistrate Could pass any sentence prescribed by the Act in excess of powers given to him under the Code. In other words in view of Section 36 of the Act, Additional chief Judicial Magistrate could even pass the sentence for life imprisonment even though under Section 29 of the Code he could not pass a sentence of life imprisonment or imprisonment for a term exceeding seven years. Reliance was placed on a Division Bench decision of Calcutta High Court, Ranjeet Chaterji v. State of Bengal, 1985 Drugs Cases 121 and a single Judge decision of learned Brother K. C. Agarwal, J. (as he then was for whom I have got profound regards), in Ravindra Prakash Arya v. Union of India, 1984 Cri LJ 1321 (All ).
( 5 ) LEARNED counsel for the opposite party on the other hand urged that as under Section 29 of the Code Magistrate could not pass a sentence for life imprisonment or imprisonment for a term exceeding seven years, hence the provisions of Section 36 of the Act were not applicable and in any case said provision was just an enabling provision and that too was in respect of special and exceptional cases. It was further urged that no prejudice was caused to the applicant hence the order of learned sessions Judge, directing the Chief Judicial Magistrate to commit the case to the court of session, does not require any interference. It was next urged that the decision in Ravindra Prakash Arya v. Union of India 1984
