C P UDAYADIVAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is one among the accused in a pending case on the file of the Sessions Court, Palakkad. He is being prosecuted with some others for offences under the Drugs and Cosmetics Act, 1940, for short, 'the Act', on a complaint filed by the Drugs Inspector, Palakkad. Complaint was filed before the Chief Judicial Magistrate, Palakkad, who, after taking cognizance of the offences imputed, made over the case to the Judicial First Class Magistrate -II, Palakkad for trial. Pending the proceedings, the Act was amended, by which some offences under the Act are triable only by a Special Court. The Magistrate taking into account the amendment to the Act, committed the case to the Sessions Court for trial. Annexure A1 is copy of the complaint, in which including the petitioner five persons are arrayed as accused for various offences under the Act. Crux of the allegation is that accused 1 to 3. and 5 conducted the sale of a drug which is not of standard quality, and the petitioner, A4, failed to produce the purchase record of the drug and conducted the sale of that drug, not having standard quality. Accused numbers 1 to 3 and 5 violated the provisions covered by Section 18(a)(i) of the Act, which is punishable under Section 27(d) of the Act, and the petitioner, A4, violated Section 18(a)(i), 18A and 18B of the Act, punishable under Sections 27(d), 28 and 28A of the Act, is the accusation. After appearance of the accused before the magistrate, and pending trial, the Act was amended by Act 26 of 2008 with effect from 10.08.2009. By the amendment, constitution of a special court to try certain offences punishable under the Act was newly incorporated inserting Section 36AB in the Act. The magistrate thereupon noticing that some among the offences imputed against the petitioner are triable only by the special court, committed the case to the Court of Sessions, Palakkad. On such committal, summons was issued to the accused, numbering the case as S.C No.611/2012 on its file. Annexure A2 is the summons issued to the petitioner.

(2.) Petitioner has filed the above petition for quashing the criminal proceedings pending before the Sessions Court, numbered as above, contending that the offences imputed under the Act at the time of commission were cognizable by the magistrate, and having taken congnizance thereof the trial of the case has to proceed before the magistrate. It is not liable to be committed on the basis of the amendment made inserting Section 36AB in the Act, though it speaks of constitution of a special court for trial of certain offences under the Act, is his case.

(3.) I heard the learned counsel for the petitioner and also the learned Public Prosecutor. The main thrust of challenge canvassed by the counsel is that the special court has no jurisdiction to try the offences under the Act, which had been taken cognizance of by the magistrate before the amendment made under Act 26 of 2008 came into force. That will cause serious prejudice to the accused, submits the counsel. If the case is tried by the magistrate, any adverse decision rendered thereof is open to an appeal and also a revision, according to the counsel. But after the amendment made under Act 26 of 2008 and its application to pending cases before the Magistrate, the accused persons will be deprived of chance to file a revision against the decision rendered in appeal, submits the counsel. Every amendment should be treated as prospective unless it has been specifically given retrospective effect, is the further submission of the counsel to contend that though Section 36AB has been inserted in the Act by Act 26 to 2008, where cognizance of the offence under the Act has already been taken by the Magistrate before the amendment came into effect, the trial has to continue before the magistrate. Learned counsel relied on "Zile Singh v State of Haryana and Others" (,