JUDGMENT :

1. Heard Sri Shiv P. Shukla, learned counsel for the applicant and Sri Aniruddh Kumar Singh, learned AGA-I and Mrs. Nusrat Jahan learned AGA for the State.

2. By means of the instant application a prayer is made to quash the criminal proceedings of Criminal case no 1437 of 2022 (state of U.P. versus Shail Kumar Jain) under section 17B/17A(e)/18A/27 Drugs & Cosmetics Act, 1940 against the applicant registered for an offence punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940 ('the Act' for short) as well as summoning order dated 19-07-2023.

3. The learned counsel appearing for the applicant submits that in fact, the present applicant is a lawful degree holder of BAMS course from Lucknow University and it is not disputed even by the complainant, but a complaint has been instituted under section 17B /17A(e)/18A/27 Drugs & Cosmetics Act 1940 (Hereinafter referred as 'the Act 1940') before the Additional District and Sessions, Judge NDPS Act, Lucknow. He submits that once the samples were taken and notice was issued, the present applicant has replied though the same was kept for a long period of time for deciding, i.e., for about four years and thereafter again a notice was served which was immediately replied by the present applicant but ignoring all this, complaint has been filed against the applicant on nonest grounds. Adding his arguments, he submits that so far as the provision of Section 33M of the 'Act 1940' is concerned, it says that no prosecution under this chapter shall be instituted except by an Inspector (with the previous sanction of the authority specified under sub-section (4) of Section 33G which is missing in the instant matter and this fact has been ignored by the learned trial Court while summoning the applicant.

4. He next contended that the Rule 123 of the Drug Rules, 1945 (hereinafter referred to as 'Rules 1945') is with respect to exemption clause and the same is quoted hereinunder:-

"123. The drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and the rules made thereunder to the extent and subject to the conditions specified in that Schedule."

5. Referring to aforesaid, he submits that it provides that the drugs specified in 'Schedule K' shall be exempted from the provisions of Chapter IV of the Act and rules made thereunder to the extent of subject and condition specified in the Schedule. He submits that the drug for which the sample was taken, comes under the purview of the scheduled drugs which is in 'Schedule K' of the 'Rules, 1945' and the same comes under the exemption clause and therefore no complaint can be lodged for the said offence.

6. Further contention of the learned counsel for the applicant is that the summoning order, which is impugned in this complaint itself is erroneous and is against the settled proposition of law, as no reason has been recorded while summoning the accused/present applicant. He submits that the Hon. Apex Court in catena of judgments, has held that once the Magistrate summons an accused, while passing the summoning order, the detailed reason is to be recorded but so far as the present matter is concerned, the reasons have not been recorded by the trial court.

7. In support of his contentions, he has placed reliance on the Judgment of the Apex Court rendered in the case of Anil Kumar and Others Versus M.K.Aiyappa and Another, reported in (2013)10 Supreme Court Cases 705 and has placed reliance on paragraph no. 11 of the said Judgment, which is quoted hereinunder :

"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magist