Committing Case To Sessions

 

 

THROUGH the judgement of the writ petition –Mukut Bihari Goyal and two others v. The State of Maharashtra, delivered on December 19, 2025, Justice Sushil M Ghodeswar has, at the Aurangabad Bench of the Bombay High Court, expressed his considered view that the JMFC, Majalgaon, has committed a manifest error of law in committing the case to the Sessions case, as the impugned order is contrary to the scheme of the Act and ignores the express statutory provisions governing the forum of trial. As such the interference of the High Court is warranted. The petitioners in this case challenged the order passed by the JMFC, Majalgaon, District Beed, allowing the applications filed by the respondent-prosecution and committing the case to the Sessions Court. While issuing notice to the respondent on January 22, 2020, the High Court had granted interim relief thereby implementation of the impugned was stayed.

 

According to the petitioners, they are having valid license issued by the Drugs Controller, Jaipur, Rajasthan for manufacturing the drug Lupizyme 200 ml. On March 4, 2005, the respondent filed the complaint before the JMFC Majalgaon alleging therein that he being appointed as a Drug Inspector under the provisions of Drugs and Cosmetic Act, 1940, is authorized to institute the prosecution under section 32 of the said Act. It was alleged in the said complaint that on July 29, 2003, the complainant visited the premises of M/s Shrikrushna 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 October 16, 2023, wherein it was reported that, drug is not of standard quality. It is, therefore, alleged that present petitioners/accused have committed the offence under section 18 (a)(i) read with sections 16 and 34of the Act, which is punishable under section 27(d) of the Act. Accordingly, the complaint came to be filed.

 

The petitioners have further contended that on the basis of the said complaint, the JMC, Majalgaon issued process by the order of March 4, 2005, against the accused petitioners. However, the respondent prosecution filed an application for committing the case to the Sessions Court, Majalgaon alleging therein that as per the amendment to the 1940 Act, in the year 2009, on August 10, 200, the case will have to be committed to the Sessions Court at Majalgaon as per section 32(2) of the Act. The petitioners have contended that they opposed the application 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 under section 27(d) is up to two years. However, the JMFC, Majalgaon, through the impugned order of October 16,2019 allowed the application, holding that Amendment Act 26 of 2008 will have retrospective effect and section 32(2) clearly mandates that, offences are triable by Sessions Court and hence, the case was committed to the Sessions Judge, Majalgaon.

 

This order brought the petitioners before the Sessions Court. After hearing the Advocates for the respective sides, the HC considered it pertinent that while passing the impugned order, the Magistrate has, in this case, relied upon the amended provisions of section 32(2) of the Act. Therefore, the HC has considered it necessary for proper appreciation of the contention of the parties to discuss sections 32(2) and 36-A, as amended on August 10, 2009. The conjoint reading of these two sections makes it abundantly clear that though section 32(2) provides that no court inferior to that of Court of Sessions try an offence punishable under the Chapter, the same is expressly qualified by the words “save as otherwise provided in this Act”. Section 36-A is one such provision, which saves the jurisdiction of the Magistrate and mandates summary trial of offences punishable with punishment not exceeding three years, except those specifically triable by the Special Court or the Court of Sessions. Therefore, the jurisdiction of the Magistrate to try offences under section 18(1)(i) read with section27(d) of the Act remains intact even after the amendment. The HC expressed agreement with the counsel for the petitioners in placing reliance on the Kerala HC’s judgement in the case-C P Duyadivakaran v. State of Kerala-(2012) 3 KHC 708 wherein it is held that any change in forum at such a belated stage would cause unnecessary and unavoidable hardship to the accused, particularly when the prosecution was already pending before the Magistrate prior to the amendment. It was observed therein that committing such cases to the Sessions Court mechanically without examining the saving clause and the nature of the offence, would amount to vague and erroneous exercise of jurisdiction. However, in the said judgement, when the amendment Act came into force, no case was pending before the Magistrate against the accused therein. In the present case, admittedly, the complaint came to be filed before the Magistrate on March 4, 2005 and the Amendment Act came into force from August 10, 2009, long after the institution of the complaint.

 

It is to be noted that the offences registered against the petitioners are under sections 18(1)(a)(i) read with sections 16 and 34 of the Act and punishable under section 27(d) thereof. Said offences are not brought within the purview of section 36AB of the Act, which confers jurisdiction upon the Special Court/Sessions Court. Consequently, the trial of offences punishable under section 27(d), which provide punishment up to two years, continues to remain with the Magistrate’s Court. The legislative intent is explicit in excluding such offences from the jurisdiction of the Sessions Court, even after the amendment. In the present case, Drugs and Cosmetics Act, by virtue of section 36A read with saving words in section 32(2), expressly preserves the jurisdiction of the Magistrate for certain categories of offences. Therefore, the ratio of the judgements cited by the respondents is clearly distinguishable and does not advance the case of the prosecution. The power of the Magistrate to try such offences continues unaffected. The saving words in section 32(2) operate as statutory safeguard preserving the jurisdiction of the Magistrate. In result, the HC has allowed the writ petition. It has quashed and set aside the impugned order passed by the JMFC, Majalgaon, on October 16,2019. The case shall be tried by the said Magistrate in accordance with law, as if no order of committal has been passed.