While underscoring the importance of the duty of Magistrate in recording reasons while issuing summons, the Lucknow Bench of Allahabad High Court in a most learned, laudable, landmark and laudable judgment titled Dr Shail Kumar Jain vs State Of U.P. Thru. Prin. Secy. Home, Lko. And Another in Application u/s 482 No. – 7244 of 2023 and cited as Neutral Citation No. – 2023:AHC-LKO:49575 that was pronounced as recently as on July 27, 2023 has held in no uncertain terms that the Trial Court while issuing summons, shall record detailed reasons, and this duty of Magistrate cannot be marginalized. The Single Judge Bench comprising of Hon’ble Justice Shree Prakash Singh was dealing with the application filed to quash the criminal proceedings of criminal case 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 as well as summoning order dated 19-07-2023. It must be noted that the High Court after looking into the impugned order unequivocally observed that the reasons has not been recorded and it has only been mentioned that the Court has looked into the complaint as well as the record available before the same. It cannot be glossed over that the Bench after looking into various judgments noted that in the cases arising out of complaint case, the trial court while issuing summons, shall record detailed reasons, which should apparently show the application of mind and this duty of Magistrate cannot be marginalized. It deserves mentioning that High Court stated that the plea has also been taken that provision of Section 33M of the Act, 1940 clearly provides that any prosecution under the Chapter IV of the Act, can be instituted except by an Inspector with a previous sanction of the authority specified under Sub Section (4) of Section 33 (g) and while examining aforesaid, the Court finds that the compliance of the abovesaid provisions has not been done by the authorities and the mandate of due procedure has been violated. Resultantly, we see that the Bench allowed the application. Very rightly so!
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Justice Shree Prakash Singh of the Lucknow Bench of Allahabad High Court sets the ball rolling by first and foremost putting forth in para 2 that, “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.”
On the one hand, the Bench states in para 3 that, “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.”
Further, the Bench hastens to add in para 12 stating that, “During the course of his argument he has further placed reliance on the judgement reported in 2023 SCC OnLine SC 269, S. Athilakshmi Vs. State Rep. by the Drugs Inspector and has referred paragraph 21 of the above said judgement. Paragraph 21 of the aforesaid judgement is quoted hereinunder:-
“21. The sanctioning authority had not examined at all whether a practising doctor could be prosecuted under the facts of the case, considering the small quantity of the drugs and the exception created in favour of medical practitioner under Rule 123, read with the Schedule “K”. All these factors ought to have been considered by the sanctioning authority. Under these circumstances we allow this appeal and set aside the order of the learned Single Judge of the Madras High Court and quash the criminal proceedings in Criminal Case No. 7315 of 2018 on the file of X Metropolitan Magistrate, Egmore, Chennai.””
As we see, the Bench then envisages in para 13 while elaborating on the facts of the case that, “Placing reliance on the abovesaid Judgment, he submits that the factual matrix of the present case is identical to the case of S. Athilakshmi (supra) as in that case also, the prosecution was initiated against a practising doctor considering the small quantity of drugs and the same was held by the Apex Court as exempted under Rule 123 read with the Schedule ‘K’ of the Rules 1945. Likewise, in the present case also, the sanctioning authority has not taken care of provisions of exemption clause and the Schedule ‘K’ of the Rules 1945, which is a clear cut violation of mandate of law and, therefore, the whole criminal proceedings initiated against the present applicant vitiates in the eyes of law.”
Furthermore, the Bench then hastens to add in para 14 stating that, “Concluding his arguments, learned counsel for the applicant submits that the summoning order dated 19.7.2023 is not only erroneous and unlawful but it is against the settled proposition of law rendered in plethora of Judgements of the Apex Court and, therefore, the same is not sustainable.”
On the contrary, the Bench then points out in para 15 that, “On the other hand, the learned counsel appearing for the State has opposed the contention aforesaid and submits that the complaint is in very detailed and after giving opportunity to the applicant, when the authorities came to the conclusion that there is a case, the complaint was lodged. He added that the complaint is appended with the material evidences, which reveals that the present applicant has committed an offence under Section 17B/17A(e)/18A/27 of ‘the Act 1940’, therefore the learned trial Court has rightly passed the order, whereby the present applicant has been summoned and thus no interference is warranted.”
To put things in perspective, the Bench envisages in para 16 while elaborating on the facts of the case that, “Considering the submissions of the learned counsels for the parties and after perusal of the material placed on record, it transpires that the present applicant is an Ayurvedic Doctor, having degree of BAMS from Lucknow University and is a registered medical practitioner, which is an admitted fact between the parties. After taking sample of medicine, the same was sent to Lab and was examined and once it is said to be found against the norms, the notice was issued and after receiving the reply and reaching to the conclusion, the complaint was filed by departmental authorities but it seems that for taking decision, the authorities have taken four years that is an inordinate delay. Further it seems that for justifying the delay, again a notice was served upon the applicant, though, prima facie, the same is insufficient to fill up or explain the inordinate delay.”
Be it noted, the Bench notes in para 17 that, “This court has noticed the fact that there is an exemption clause in Rule 123 of ‘the Rules 1945’, which clearly says that the drugs which are specified in the Schedule ‘K’ shall be exempted from the provision of Chapter IV of the Act. So far as the sample which was taken, admittedly, comes under the Schedule ‘K’ of the Rules, 1945’ but the authorities has ignored the provisions of exemption clause.”
Do note, the Bench notes in para 18 that, “I have also considered the contentions of the learned counsel for the applicant that no reason has been recorded while passing the order dated 19.07.2022, whereby the present applicant has been summoned. From bare perusal of the impugned order, it transpires that the reasons has not been recorded and it has only been mentioned that the Court has looked into the complaint as well as the record available before the same.”
Most significantly, the Bench minces absolutely no words to reiterate unambiguously mandating in para 19 that, “Time and again, the Hon’ble Apex Court has held that in the cases arising out of complaint case, the trial court while issuing summons, shall record detailed reasons, which should apparently show the application of mind and this duty of Magistrate cannot be marginalized.”
It is worth noting that the Bench notes in para 20 that, “The plea has also been taken that provision of Section 33M of the Act, 1940 clearly provides that any prosecution under the Chapter IV of the Act, can be instituted except by an Inspector with a previous sanction of the authority specified under Sub Section (4) of Section 33 (g) and while examining aforesaid, this Court finds that the compliance of the abovesaid provisions has not been done by the authorities and the mandate of due procedure has been violated.”
As a corollary, the Bench directs in para 21 that, “In view of the abovesaid submissions and discussions, there is merit in this case, consequently, the order dated 19.07.2022 passed in Complaint Case No. 1437 of 2022, is hereby set-aside.”
Adding more to it, the Bench directs in para 22 that, “Matter is remitted back to the trial Court concerned to pass a fresh order within a period of 60 days from the date of this order, considering the observations made herein above.”
Finally, the Bench concludes holding in para 23 that, “The instant application is hereby allowed.”
In sum, we thus see that the Lucknow Bench of Allahabad High Court while reiterating what has been held by the Apex Court time and again has made it clear once again that the duty of Magistrate in recording reasons while issuing summons cannot be marginalized. It was also made clear that the Trial Court while issuing summons shall record detailed reasons. No denying it!