Offences under Section 27(a) of the Drugs and Cosmetics Act, 1940, are triable by the Sessions Court and not by the Magistrate.

( 1 ) THIS revision is directed against the judgment of I Additional Sessions Judge, Ghaziabad, upholding the contention of the Union of India that the complaint filed by the Drugs Inspector under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) against the applicant for the offences under Sections 27 (a) (ii) read with Section 18 (c), Section 27 (a) (i) and Section 27 (b) read with Section 18 (a) (i), Section 18 (a) (ii), 18 (a) (iii) Section 28 read with Section 18a of the Drugs and Cosmetics Act, 1940, which is triable by the Sessions Court.

( 2 ) IT appears that on receiving information that the accused applicant was selling spurious drugs from his shop known as M/s. Aggrawal Medicine Company, Upper Bazar, Modinagar, a test purchase of 5 capsules of Oxytetracycline, Batch No. 190773, manufactured by M/s. Cooper pharma, New Delhi, was made along with other drugs from the aforesaid shop. The capsules were sent to the Director, Central India pharmacopoeia Laboratory, Ghaziadad, for testing. By his test report-dated 31. 7. 1974, the Director declared that the" drug was not of acceptable quality for the reasons given in his report. The premises of the aforesaid shop was again inspected on 9. 4. 1974. No licence, whatsoever, for stocking and sale of drugs was found issued to Dr. Ravindra Prakash Arya the applicant, by the licensing authority till 9. 8. 1974. On the basis of these allegations and some others a complaint was filed on 16. 1. 1976 against the applicant for being prosecuted for the offences mentioned above.

( 3 ) THE Chief Judicial Magistrate took the statement of the Drugs Inspector under Section 200, Criminal P. C. and, thereafter, summoned the applicant.

( 4 ) DURING the pendency of the case, the Union of India made an application for committing the case to the Sessions Court on the ground that the punishment which could be awarded to the applicant was beyond his power and jurisdiction. The application was opposed by the applicant. The Chief Judicial Magistrate rejected the application holding that it was not mandatory for him to commit the case to the Court of Session at that stage, when the recording of the statement of PW 1 had been started. The Chief Judicial Magistrate held that if at any time or at any stage of framing of the charge, he came to the conclusion that the offences were such that adequate punishment could not be awarded by the Chief Judicial Magistrate, the case would be committed to the Court of Session, under Section 323, Criminal P. C. 1973.

( 5 ) IN revision, taken against this order by the Union of India, the learned Sessions Judge held that as for the offences the punishment provided was beyond the jurisdiction of the Chief Judicial Magistrate, the case was liable to be committed to the Court of Session. For this purpose, the learned Sessions Judge relied on a decision of the Calcutta High Court referred to in State v. Bijoy Kumar Chatterji 1977 Cri LJ 1503 and also on another decision of this Court given in Criminal Revn. No. 48 of 1980, Brij Lal v. Union of India decided on 11. 3. 1980.

( 6 ) IN this revision which has been preferred against the aforesaid order of the I Additional Sessions Judge, Ghaziabad, the learned Counsel urged that Section 36 of the Act conferred exclusive power of trial on the Magistrate, hence, the learned Additional Sessions Judge committed an error in directing the Chief Judicial Magistrate to commit the case to the Court of Session.

( 7 ) SECTION 36 was inserted by Act 11 of 1955. The marginal note of Section 36 reads as under: Magistrates power to impose enhanced penalties.

( 8 ) THE Magistrates power as given in the old Code of Criminal Procedure was to impose imprisonment up to two years. It was when the Act provided for the imposition of sentence of three years, then Section 36 was brought in. In order to get over this difficulty, Section 36 laid down that notwithstanding anything contained in the Code of Criminal Pro