N.G. Chaudhuri, J.
1. Ranjit Chatterjee, the appellant before us, feels aggrieved with his conviction under Section 27(a)(ii) of the Drugs and Cosmetics Act 1940 read with Section 18(c) of the said Act and imposition of the sentence of eight years R.I. and to a fine of rupees one thousand, in default, to further R. I. for one hundred days in Sessions Case No. 3(3) 80 by the Assistant Sessions Judge, Alipore. In the said Sessions case there was another accused viz. M/s. Hindusthan Medical Services Private Limited. Ranjit Chatterjee has been imposed the sentence spoken of for himself and for the other accused for which he was found to be the owner and Proprietor. Both the accused were acquitted of the charge under Section 27(b) of the aforesaid Act which was also framed at the commencement of the trial. Outline of the prosecution case may be given as follows.
2. Mr. R. Chakraborty, an Inspector of Drugs, West Bengal received an information on 2-4-74 and inspected and searched the selling premises of M/s. New Medical Hall at Bagrahat, 24 Parganas and found a stock of medicines styled as Perviron and Pervilex which were the products of the accused company M/s. Hindusthan Medical Services Private Ltd. The proprietor of the selling concern Shri Madan Mohan Hazra (P.W. 5) was present on the spot. From Madan Mohan Hazra, Inspector came to know that formerly he had purchased those medicines by placing order with one Mr. Sunil Ghosal (P.W. 3), a local resident under different invoices in the year 1975-76. Subsequently on enquiry from the office of the Director of Drugs Control, West Bengal, the Inspector came to know that the said accused company M/s. Hindusthan Medical Services Private Ltd. had drug manufacturing licences previously under D. L. No. S38 M-D.L. No. 325MB but that the said licences were rejected on 9-9-74. Thereafter on 9-4-1976 the Inspector along with his colleagues (P. Ws. 4 and 7) inspected the premises of M/s. Hindusthan Medical Services Private Ltd. at 119A, Bangur Avenue and there a stock of raw materials having current dates of manufacturing, used and unused labels of different products, used invoice books and one order book were recovered from the accused company. Shri Ranjit Chatterjee, the accused-appellant who claimed to be the Managing Director of the accused company was physically present at the time of the said inspection by the Inspector. On 22-4-76 the Inspector inspected the said premises again and searched the aforesaid raw materials, records and other documents in accordance with the provisions of law. On 29-4-76 the complainant again visited the premises of M/s. New Medical hall at Bakrahat and seized the medicines styled as Perviron and Pervilex. On 30-4-76 the Inspector took into custody the aforesaid goods under order of the learned Sub-Divisional Judicial Magistrate, Barrackpore, Thereafter in due course, the samples of both the medicines were sent to the Govt. Analyst who subsequently opined the medicine to be of sub-standard quality. Thereafter the Inspector filed his complaint before the learned Sub-divisional Judicial Magistrate, Barrackpore who took cognizance of the offnece and summoned the accused-appellants under Sections 27(a) and 27(b) of the Drugs and Cosmetics Act, 1940 giving rise to the Complaint Case No. 162 of 1979. The accused-appellant duly appeared before the learned Magistrate and were released on bail. The learned Sub-divisional Judicial Magistrate, however, took the view that the case was triable by the court of Session exclusively and as such he committed the case to the learned Sessions Judge, 24 Parganas on 30-5-80 for trial in terms of Section 209 Cr. P.C The Sessions Judge, thereafter, started Sessions Case No. 4 of June 1980 against both the accused-appellants and there in the Sessions Court they were released on bail. The charges were framed against both the accused under Section 27(a)(ii) read with Section 18(c) of the Drugs and Cosmetics Act and also under Section 27(b) read with Section 18(c) of the said Act. In course of the trial, the learned Assistant Sessions Judge examined as many as 12 witnesses with the result as already indicated before.
Mr. Sumit Maitra, learned Advocate appearing on behalf of the appellant contends witrtall the emphasis at his command that the Sessions trial itself was totally mis-conceived and the Assistant Sessions Judge had no power Or jurisdiction to hold the trial or to convict the accused in the way he did. In his contention Mr. Maitra emphasises that the conviction in the present case was under Section 27(a)(ii) of the Drugs and Cosmetics Act 1940. The said section reads as follows:
Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes-
a) any drug -
i) deemed to be misbranded under Clause (a), Clause (b), Clause (c), Clause (d), Clause (f) and Clause (g) of Section 17 or adulterated under Section 17B; or
ii) without a valid licence as required under Clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine.
4. By a Gazette Notification bearing No. 963-29th Aprl, 1974, the Act in so far as it related to West Bengal and in so far as it related to the aforesaid sections was amended to the extent that for the words 'for a term which shall not be less than one year but which may extend to ten years', the words 'for life' were substituted. In short, in the State of West Bengal the offence under Section 27(a)(ii) of the Act aforesaid is punishable with imprisonment for life. In so far as the State of West Bengal is concerned, Section 32 of the aforesaid Act reads as follows:
32. (1) All offences punishable under this Act shall be cognizable and non-bailable.
(2) Any Police Officer not below the rank of Sub.-Inspector of Police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received of his having been concerned in any of the offences punishable under this Act.
Section 36 of the aforesaid Act reads as follows:
Notwithstanding anything contained in the Code of Criminal Procedure, 1898, it shall be lawful for any Presidency Magistrate or any Magistrate of the first class to pass any sentence authorised by this Act in excess of his powers under the said Code.
5. Mr. Maitra contends that although Section 27 of the Act in its application to West Bengal prescribes punishment of imprisonment for life and Section 32 of the Act in its application to the West Bengal is substantially different from Central Act yet, S. 36 of the Act leaves no room for doubt that the cases under the Act are triable by a Metropolitan Magistrate or a Magistrate of first class.
6. Mr. Maitra submits that the special provision of Section 36 embodied in the special Act will override the general provision of the Code of Criminal Procedure 1973. He argues that there is nothing in the Schedule to the said Code that the offence under the Act aforesaid is to be tried by a Court of Session exclusively, Mr. Maitra accordingly submits that the order of commitment was wrong and the trial held by the Assistant Sessions Judge was absolutely without jurisdiction. To strengthen his contention, he refers to a Division Bench decision of this Court given in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mangal Chand Agarwalla reported in (1976) 3 Cal HN 6. It has been held there 'S. 5 of the Code of 1973, therefore, saves special or local laws or special jurisdiction and powers and declares that they remain unaffected by the Code unless there is any specific provision to the contrary. Reading Section 5 and Clause (b) of Section 26 of the Code of Criminal Procedure it is, therefore, clear that the special jurisdiction and power vested in the learned Magistrate under the special statute is not affected by any other specific provision to the contrary either in the Code itself or in the special statute completely covering the field of the other and laying down a contrary rule so as to altogether nullify the other. There is thus really no conflict between the special jurisdiction and powers given to the learned Magistrate under the special statute and the First Schedule concerning other laws'. In the case decided by their Lordships, Section 36 of the Act came up for consideration and on behalf of the State in the proceeding before the learned Magistrate, it was contended that the case was required to be committed to the court of Sessions. The learned Magistrate, however, overruled the said contention and held that he could himself try the case and accordingly he framed charge against the Opposite Party under Section 27(a)(ii) of the Act. Aggrieved with the order of the learned Magistrate, the State Government came up to the High Court. The Division Bench held affirmatively that the learned Metropolitan Magistrate was not required to commit the case to the court of Sessions and that he could try the case himself. Mr. Maitra accordingly, contends the gist of the Division Bench decision is that irrespective of the provisions prescribed by the Act aforesaid in so far as the State of West Bengal is concerned, the cases under the Act are triable by a court of Magistrate and offences under the Act are not triable by a Court of Session exclusively requiring an order of commitment under the Code. Mr. Maitra, accordingly, submits that the trial held by the Assistant Sessions Judge was wrong and without jurisdiction.
7. Mr. Safiulla, learned Advocate appearing on behalf of the State refers us to the case of In Re Sant Prakash Sahni reported in 1974 Cri. LJ 60. In the said decision Madras High Court interpreted Section 347 of the old Code, apparently Section 323 of the new or existing Code and observed as follows:
The words 'at any stage of the proceedings' in Section 347 are words of the widest amplitude and, as I have already observed, the decision in (1876) ILR 1 Mad 289 (FB) lays down as axiomatic that it is competent to a Magistrate to say whether from the gravity of the matter or for any other sufficient reason that the Sessions court is the proper tribunal for the disposal of the case. Considering the gravity of the matter the learned Chief Presidency Magistrate has correctly held that this is a case which should be dealt with by the Sessions Court.
8. Mr. Safiulla also relies on the decision of the Supreme Court in the case of State of Uttar Pradesh v. Khushi Ram reported in : 1960CriLJ1378 . In that case the Supreme Court held 'where a judicial Magistrate competent to award full sentence under Section 16(1)(g)(iii) of the Prevention of Food Adulteration Act, commits the accused to stand his trial before the Court of Session, presumably acting under Section 347 Cr. P.C., under impression that the power as a Magistrate of the first class to impose sentence was limited by Section 32 of the Code and the Sessions Judge tries the case and convicts and sentences the accused, neither is the commitment void, nor is the trial by the Sessions Judge without jurisdiction'. Mr. Safiulla argues that presumably the committing Magistrate in this case nursed the impression that a Magistrate like him was incompetent to impose the maximum punishment prescribed under the Act in the event of conviction of the accused. He made an order of commitment to enable the Sessions Judge to punish the offences adequately. Mr. Safiulla, therefore, relies heavily on the Supreme Court decision cited. We have, however, difficulties in accepting the arguments of Mr. Safiulla. The difficulties arose from a consideration of the provision of Section 323 of the Code which reads as follows.
If, in any enquiry into an offence or a trial before a Magistrate it appears to him, at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session he shall commit to that court.
The provisions of Section 323 are in addition to the provision of Section 209 of the Code. Section 209 lays down that when an offence is exclusively triable by a Court of Session that is to say when it appears from the provision of the schedule to the Code that the offence is triable by a Court of Session, the Magistrate may thus for cogent reason make an order of commitment in consideration of the fact that the offence 'ought to be tried' by a Court of Session. We mean to say that order of commitment contemplated under Section 209 is a routine mechanical order passed in conformity with the provisions of the schedule to the Code whereas the order contemplates under Section 323 of the Code is an exclusive order which requires close consideration by the Magistrate of the offence. Here the Magistrate is called upon to try or enquire into the punishment prescribed and also to any peculiar fact and circumstance connected therewith. In the present case, we have read the order of commitment No. 15 dt. 30-5-80 passed by the learned Committing Magistrate. There is nothing in the said order to indicate that the learned Magistrate considered the heavy punishment prescribed for the offence for which he was making the order of commitment. It is well known that a Magistrate may transfer a case involving an offence which he can adequately punish himself to the Chief Judicial Magistrate under Section 325 of the present Code. In the present case, the order of commitment was a routine order. So, we have our difficulties in applying the decision cited by Mr. Safiulla to the facts and circumstances of the present case. Rather, the Division Bench decision of our High Court cited by Mr. Maitra induces us to hold that a Magistrate is competent to try an offence under the Act notwithstanding the heavy penalty prescribed under the Act. In the case decided by this High Court it was held that the learned Magistrate was correct in not committing the case to the Court of Session. From that it follows that a Magistrate is competent to try offences under the Act under consideration in so far as the Slate of West Bengal is concerned. The conclusion is inescapable that ordinarily such offences are not triable by a Court of Session and no order of commitment is necessary. It is true that in view of Section 323 of the present Code in appropriate circumstances after giving cogent reasons the Magistrate may conclude that the case under consideration ought to be tried by a Court of Session and pass an order of commitment. In the present case, however, the learned Magistrate did not pass an order under Section 323 of the Code. So we hold that the trial of the case by Assistant Sessions Judge on the basis of an order of commitment was entirely wrong.
9. Apart from that, the trial in the present case by the Court of Session involved some serious illegalities. The case arose, as we have seen from a petition of complaint filed by a Drug Inspector. If the Magistrate held that the complaint disclosed a case triable by a Court of Session, it was for him to follow rigidly the provisions of Sections 202 and 208 of-the Code. Mr. Maitra submits that if the procedure prescribed by Sections 202 and 208 were followed the accused would have been furnished with copies of deposition of witnesses deposing against him during commitment stage and he would have thus adequate particulars to take his defence. Even if the Magistrate at a late stage of the proceeding in exercise of his power under Section 323 of the Code made an order of commitment in view of the gravity of the offence that the case ought to be tried by a Court of Session even then the accused would have got a preliminary knowledge of the evidence the complainant was going to adduce at the time of trial. In the present case no such procedure was followed and therefore the accused was likely to be seriously prejudiced. In this connection, Mr. Maitra contends that although 12 witnesses were examined in details at the time of trial only one witness namely, P.W. 1 only was examined before commitment. Mr. Maitra, accordingly, submits that the trial held by the Assistant Sessions Judge was utterly illegal and without jurisdiction in so far it denied justice to the case. For all practical purposes there was thus a violation of justice and immense prejudice was caused to the accused. This part of the argument of Mr. Maitra has much force. After hearing the learned Advocates of both the parties we are satisfied that there is no necessity for us to go into the merits of the case. We think that in the facts and circumstances of the case, the case should be sent back to the learned Magistrate for retrial. The judgment of conviction and sentence is accordingly set aside. The case is sent back to the court of committing Magistrate for retrial with a direction to consider the appropriate provisions of the Code and of the Act. The learned Magistrate will consider if the provisions of Sections 18 and 19 of the Drugs and Cosmetics Act were followed and if the trial of the appellant to the exclusion of the Proprietor of M/s. New Medical Hall at Bakrahat was legal and valid. The learned Magistrate will also be at liberty to consider the applicability of Section 323 of the Code to the facts and circumstances of the ease. Subject to these observations the appeal is allowed on contest. The judgment appealed against is set aside. The accused may continue on bail by an appropriate order of the learned Magistrate,
Gobinda Chandra Chatterjee, J.
10. I agree.