Investigation Techniques And Launching Of Prosecution

SPECIAL COURTS

COGNIZABLE AND NON-COGNIZABLE OFFENCES

COMPOUNDING OF CERTAIN OFFENCES

SUMMARY TRIALS

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DRUGS AND COSMETICS ACT 1940

• IT IS A SPECIAL ACT AND COMPLETE IN ITSELF
• IT IS A PROHIBITORY LAW
• IT PROVIDES DEFINITIONS
• IT PROVIDES FOR CONTROLLED OPERATIONS OF IMPORT, MANUFACTURE FOR SALE, DISTRIBUTION, SALE THROUGH LICENSING
• IT PROVIDES STANDARDS OF DRUGS
• IT PROVIDES DETAILED CONDITIONS OF LICENCES AND ITS IMPLEMETATION THROUGH POWER WITH INDEPENDENT LA TO GRANT, REFUSE, SHOW CAUSE, HEAR, SUSPEND LICENCES OR CANCEL LICENCES
• IT PROVIDES DETERRANCE TO PROTECT THE HEALTH OF PUBLIC THROUGH PROVISIONS OF PROSECUTIONS OF VIOLATORS OF PROHIBITIONS UNDER THE ACT AND RULES. AND PROSECUTIONS OF PERSONS ENGAGED IN PASSING OF CONTRAVENING DRUG AGAINST REQUIREMENT AND CONDITIONS OF LICENCES

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VIOLATIONS REQUIRING PROSECUTION

• PROHIBITORY AND APPLICABLE TO ALL PERSONS…SECTION 18: CLAUSE (a) PROVIDES FOR SECURING SAFETY AND QUALITY OF DRUGS WITHOUT ANY INJURIOUS MEANINGS DISPLAYED IN LABEL
• CLAUSE (b) PROHIBITS TO SELL, STOCK OR EXHIBIT OR OFFER FOR SALE OR DISTRIBUTE A DRUG WHICH HAS BEEN IMPORTED OR MANUFACTURED IN CONTRAVENTION OF THE ACT OR ANY RULE
• CLAUSE (c) PROHIBITS ANY OPERATIONS ( IMPORT, MANUFACTURE FOR SALE OR SALE) WITHOUT A LICENCE AND COMPLIANCE OD CONDITIONS

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ACTION OF LA VS PUNISHMENT IN THE COURT

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PROSECUTIONS

• SEVERITY OF OFFENCES UNDER THE DRUGS AND COSMTICS ACT
• HEINOUS CRIMES: WHEREFORE THE PUNISHMENT OF IMPRISONMENT IS MORE THAN 7 YEARS + FINE: SECTION 27(a) and S 27 (c)
• MAJOR CRIMES: WHEREFORE THE PUNISHMENT OF IMPRISONMENT IS UPTO 7 YEARS BUT NOT LESS THAN 3 YEARS +FINE
• MINOR CRIMES: WHEREFORE THE PUNISHMENT OF IMPRISONMENT IS UPTO 3 YEARS + FINE OR FINE
• PROBATION ACT: CONVICT FOR OFENCES UPTO 2 YEARS ARE LET OFF UNDER PROBATION FOR IST OFFENCE

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TRIAL OF VARIOUS CRIMES UNDER THE ACT

• BY SPECIAL COURT: SECTION 27(a) AND 27 (c) under the Act
• By CJM or Judicial Magistrate Ist Class: S 18 ( c) section 36
• By CJM or Judicial Magistrate Ist Class: S 27 (d) AND
• Rest of offences if not with Section 27(a) or 27 (c ), shall be tried by specially notified Judicial Magistrate Ist Class by way of SUMMARY TRIAL U/s 36A subject to punishment imposed will not exceed 1 year. Procedure under S 262 to S 265 of CrPC has to be followed.
• In case the court senses that punishment exceeding 1 year might have to be passed in case of conviction then reasons are to be recorded and written order for conducting warrant trial are to be followed

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TRIAL OF OFFENCES UNDER � S 27(a) or/and S 27 (c ) � INVOLVING DEATH OR GRAVOUS HURT

• Section 27 (a) essential ingredients of offence .

Drug be ADULTRATED or SPURIOUS or NOT OF STANDARD QUALITY and likely caused death or cause death of gravous hurt under S320 of IPC

WHEN DEATH OR GRAVIOUS HURT IS INVOLVED THE MATTER BECOMES A HEINOUS CRIME. THE ACT INTENDS that the trial should be speedy and under a superior court than magistrate court and more meticulously keeping in mind the over burdened Magistrate trial Court

HENCE THE ADULETRATED AND SPURIOUS DRUGS MENTIONED ABOVE HAS BEEN SOUGHT TO BE TRIED IN DESIGNATED SPECIAL COURT WHICH WILL HAVE STATUS OF A SESSIONS COURT HAS BEEN ENVISAGE UNDER SECTION 36AB, THE PROSECUTOR BEFORE SUCH COURT WILL HAVE TO BE PP.

Rest of offences other than those under S36AB shall be tried by Magistrate ist class as provided under section 36 and 36A of the Act.

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SPECIAL COURTS

• AS PROVIDED UNDER SECTION 36AB THE STATUS BEING THAT OF SESSIONS COURT, THE PROCEDURE OF TRIAL WILL INVOLVE SECTION 193, 210 AND SECTION 227 OF CrPC.
• APPEAL OR REVISION ARISING OUT OF ORDER PASSED BY SPECIAL COURT UNDER THE ACT WPOULD LIE BEFOR THE HIGH COURT OF THE STATE
• SECTION 36AD; THE PERSON CONDUCTING PROSECUTION BEFORE THE SPECIAL COURT WILL BE DEEMED TO BE A PUBLIC PROSECUTOR

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PROCEDURE OF TRIAL BEFORE SPECIAL COURT

• 1. COMPLAINT FOR OFFENCES DESCRIBED UDER SECTION 36AB TO BE INSTITUTED BEFORE CJM OF THAT DISTRICT
• 2. THE CJM WILL TAKE JUDICIAL NOTICE OF THE FACT THAT THE OFFENCES MENTIONED AND DOCUMENTS APPENDED MAKE OFFENCES UNDER S.36AB.
• WILL REGISTER THE CCOMPLAINT AND PASS SPEAKING ORDERS TO SUMMON THE ACCUSED PERSON.
• ACCUSED PERSON WHEN APPEAR APPLY FOR BAIL WHICH CAN BE DECIDED BY THE CJM AND ACCORDINGLY THE ACCUSED IS IN JUDICIAL CUSTODY OR ON BAIL
• WHEN ALL THE ACCUSED HAVE BEEN PROCURED THEN THE CJM AS PER S193 AND BY FOLLOWING S.210 COMMITS THE CASE FILE AND THE ACCUSED TO THE DESIGNATED SPECIAL COURT FOR PRESENCE ON FIXED DATE BEFORE THE SPECIAL COURT.
• APPEARNCE OF THE ACCUSED IS RECORDED AND CASE IS ADJOURNED TO A DATE FOR FRAMING OF CHARGES UNDER SECTION 228 AFTER HEARING THE PP AND DEFENCE COUNSEL OF THE ACCUSED PERSON. CHARGES ARE FROMED ON THE SAME DAY OR NEXT DATE OF HEARING
• TRIAL BEGINS
• REST IS JUST LIKE WARRANT TRIAL. AFTER PWS STATEMENT OF ACCUSED UNDER SECTION 313, DEFENCE EVIDENCE AND AUGUMENT, ORDER OF CONVICTION OR ACQUITTAL , SENTENCING AND JUDGEMENT.

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COGNIZABLE AND NON-COGNIZABLE OFFENCES � UNDER THE DRUGS AND COSMETICS ACT 1940

• SECTION 36-AC. Offences to be cognizable and non-bailable in certain cases.- Offences covered by S.36AB ARE COGNIZABLE AND NON-BAILABLE
• Please note the words….” in certain case”.
• Before release of suspect on bail or on personal bond, the PP MUST BE HEARD

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OFFENCES WHICH ARE COGNIZABLE UNDER THE ACT

• SECTION 27(a) and any other offence connected with it in same transaction
• SECTION 27( c) and any other offence connected with it in same transaction
• If any offence is not connected to S27(a) or S27(c) meaning thereby not falling under S36AB will be Non-Cognizable.
• IN OTHER WORD ALL OFFENCES TO BE TRIED BY MAGISTRATE WILL REMAIN NON-COGNIZABLE

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COMPOUNDING OF CERTAIN OFFENCES

SECTION 32-B TALKS ABOUT COMPOUNDING OF OFFENCES UNDER THE ACT

MEANS: THE OFFENCE SHOULD ATTRACT FINE ONLY

IT SHOULD BE 1^ST INSTNACE

THE PERSON SHOULD HAVE NOT BEEN SUBJECTED TO TRIAL

THERE SHOULD BE SPECIFIED AUTHORITY TO COMPOUND THE OFFENCES

THE COMPOUNDED AMOUNT WILL NOT EXCEED THE AMOUNT PROVIDED AS PUNISHMENT

NO PROSECUTION SHALL BE LAUNCHED FOR THE SAME OFFENCE

IF TRIAL HAS BEGUN THEN THE ACCUSED CAN PLEAD FOR COMPONDING AT THE STAGE OF PUNISHMENT OR DURING APPEAL WITH THE PERMISSION OF THE COURT.�

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OFFENCES WHICH COME IN AMBIT OF COMPOUNDING OF OFFENCES UNDER THE ACT

• S. 32-B:
• SECTION 13(b)
• SECTION 28
• SECTION 28-A
• JAN VISHWAS( AMENDMENT OF PROVISIONS) ACT 2023 DATED 11^TH AUGUST 2023 AMENDS S.32 TO INCLUDE
• SECTION.27(d) inserted....but imprisonment and fine contradicts

S.32(1)

• SECTION .27A inserted …. but imprisonment and fine contradicts

S.32(1)

SECTION 29 ( GOVT. ANALYST REPORT)..inserted

SECTION 30 (2) SUBSEQUENT OFFENCE U/S 29…INSERTED…CONTRADICTS 32(1)

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THE JAN VISHWAS (AMENDMENT OF PROVISIONS) � ACT, 2023 NO. 18 OF 2023 �

• THE JAN VISHWAS (AMENDMENT OF PROVISIONS) ACT, 2023 NO. 18 OF 2023
• [11th August, 2023.] An Act to amend certain enactments for decriminalising and rationalising offences
• 1. 2. 3. 4. 5.
• 6. 1940 23 The Drugs and Cosmetics� Act, 1940

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(A) In section 29, for the words "punishable with fine which may extend to five thousand rupees", the words "liable to penalty which may extend to one lakh rupees" shall be substituted.

(B) In section 30, in sub-section (2), for the words "imprisonment which may extend to two years, or with fine which shall not be less than ten thousand rupees, or with both", the words "fine which shall not be less than five lakh rupees" shall be substituted.

(C) In section 32B, in sub-section (1), after the words and figures "of section 13,", the words, brackets, letters and figures "clause (d) of section 27 and clause (ii) of section 27A," shall be inserted.

JAN VISHWAS (AMENDMENT OF PROVISIONS) ACT, 2023(18 OF 2023),

• https://thehealthmaster.com/wp-content/uploads/2024/04/S.O.-1577E-dt-28-03-2024-Iimplementation-of-Jan-Vishwas-Amendment-of-Provisions-Act-2023-related-to-Provisions-of-D-C-Act.pdf
• MINISTRY OF HEALTH AND FAMILY WELFARE (Department of Health and Family Welfare NOTIFICATION�New Delhi, the 28th March, 2024
• S.O. 1577(E).—In exercise of the powers conferred by sub-section (2) of section 1 of the Jan Vishwas (Amendment of Provisions) Act, 2023(18 of 2023), the Central Government hereby appoints that the amendments mentioned to the Drugs and Cosmetics Act, 1940 (23 of 1940) mentioned in column (5) of the Schedule to the said Act, against serial number 6 mentioned in column (1) of the said Schedule, shall come into force from the 31st December, 2024.
• [F. No. X.11035/127/2023-DR] RAJIV WADHAWAN, Advisor (Cost)

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SECTION 32-B OF THE ACT CLAUSE (1)

• SECTION 32-B: 32B. Compounding of certain offences. —
• Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), {means S.320 of CrPC not applicable}

any offence punishable under clause (b) of sub-section (1) of section 13, section 28 and section 28A of this Act (whether committed by a company or any officer thereof), not being an offence punishable with imprisonment only, or with imprisonment and also with fine, may,

either before or

after the institution of any prosecution,

be compounded

by the Central Government or by any State Government or

any officer authorised in this behalf by the Central Government or a State Government,

on payment for credit to that Government of such sum as that Government may,

by rules made in this behalf, specify:

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MEANING UNDER CLAUSE (1) OF S.32-B

• COMPONDING OF OFFENCES….. WHICH ARE NOT AGAINST PUBLIC AT LARGE BUT ARE OUT OF TECHNO-LEGAL DEFICIENCIES
• clause (b) of sub-section (1) of section 13,

S.13(a) Drug Adulterated (S.9-A), Spurious (S.9-B) or Cosmetic Spurious (S.9-D)….Not compoundable since Punishment is upto 3years AND fine upto Rs 5000/-

S.13(b) drugs or cosmetics not falling under (a) but PROHIBITED

u/s 10 …COMPOUNDABLE since the Punishment is Imprison upto 6months ………..OR Fine upto Rs500/-....... -------------------------------------------------------------------------------------------------

S.28…..Punishment Imprisonment up to 1year or fine NLT Rs 20K

S.28A…..Punishment Imprisonment up to 1year or fine NLT Rs 20K

THEREFORE” OFFENCE WHERE PUNISHMENT “AS FINE AS ALTERNATE IS PROVIDED, SUCH OFFENCES ARE COMPOUNDABLE UNDER SECTION 32-B

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MEANING UNDER CLAUSE (1) & (2) OF S.32-B

S. 32(2)-When the accused has been committed for trial

or when he has been convicted and

an appeal is pending, NO COMPOSITION FOR THE OFFENCE SHALL BE ALLOWED WITHOUT THE LEAVE OF THE COURT TO WHICH HE IS COMMITTED or, as the case may be, BEFORE WHICH THE APPEAL IS TO BE HEARD.

S.32(3) Where an offence is compounded under sub-section (1),

no proceeding or

further proceeding, as the case may be,

shall be taken against the offender in respect of the offence so compounded and the offender,

if in custody, shall be released forthwith.

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YET NOT POSSIBLE TO MAKE USE OF S.32�COMPOUNDING OF CERTAIN OFFENCES

• 1. THERE ARE NOT MANY PROVISIONS PRESCRIBING ONLY FINE OR ALTERNATE TO IMPRIOSONMENT AS FINE
• 2. SECTION 32-B REQUIRES RULES TO APPOINT OFFICERS TO COMPOUND OFFENCES WHERE PERMITTED
• 3. FREQUENTLY OBSERVED VIOLATION IS FOR MINOR DEFECTS IN QUALITY LEADING TO NOT OF STANDARD QUALITY DRUGS OFFENCE PUNISHABLE UNDER SECTION 27(d) OF THE ACT. BUT IT CANNOT BE READ UNDER S. 32-B SINCE THE PUNISHMENT IS IMPRISONMENT AND FINE.
• 4. JAN VISHWAS ACT 2023
• 5. S.O. 1577(E) 28^TH MARCH, 2024, Amendment,of JnaVIshwas Act 2023 Serial No.6 in column No. 1 comes into force from 31^st Dec. 2024

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SUMMARY TRIALS� PROCEDURE

CrPC PROVISIONS

• S.262. PROCEDURE
• S.263. RECORD
• S.264. JUDGEMENT IN CASES TRIED SUMMARILY
• S. 265. LANGUAGE OF RECORD ANDD JUDGEMENT
• Under CrPC u/s 260 list of offences which can be tried summarily subject to discretion of court of Magistrate specified, is given which does not include offences under the Drugs and Cosmetics Act 1940. But the High Court u/s 260(1)(c) can empower Magistrate of 1^st Class to conduct Summary Trials .

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SUMMARY TRIAL � THE DRUGS AND COSMETICS ACT 1940

• OFFENCES: S 36 AB TRIAL BY SPECIAL COURT ( DESIGNATED SESSIONS COURT) MAXIMUM PUNISHMENT UPTO LIFE IMPRISONMENT
• OFFENCES: S 36. TRIAL BY JUDICIAL MAGISTRATE 1^ST CLASS. 27(b)(i) and S27(b)(ii)
• OFFENCES: S.36A. TRIAL BY SPECIALLY EMPOWERED JMIC FOR SUMMARY TRIAL WHEREIN MAX PUNISHMENT IS UPTO 3 YEARS.
• KIND OF TRIALS
• SUMMARY TRIALS
• SUMMON TRIALS
• WARRANT TRIALS
• SESSIONS TRIALS.

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SUMMARY TRIAL UNDER THE ACT

• THE MAX. PUNISHMENT FOR ANY OF THE OFFENCES UPTO 3 YEARS ONLY
• COMPLAINT IS MADE BY THE DRUGS INSPECTOR IN THE SAME MANNER AS IT IS DONE FOR ANY OTHER TRIAL
• THE COMPLAINT CAN BE SUBMITTED TO MM OR CJM OR JMIC. BUT THERE SHOULD BE NOTIFICATION FOR SUMMARY TRIAL BY THE HIGH COURT .
• BEFORE FILING COMPLAINT CHECK FOR SUBSEQUENT OFFENCE IF EXIST

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PROCEDURE OF SUMMARY TRIAL

• DRUGS INSPECTOR PRESENTS COMPLAINT BEFORE JMIC
• JMIC EXAMINES THE COMPLAINT AND TAKES COGNIZANCE OF OFFENCES. DETERMINES MAX IMPRISONMENT PROVIDED UNDER THE ACT WHICH SHOULD UPTO MAX 3YEARS
• THE MAGISTRATE MUST CONSIDER THE TRIAL AS SUMMARY TRIAL EXAMINE THE DOCUMENTS.
• HE SHOULD ENTER THE COMPLAINT IN SUMMARY TRIAL REGISTER AND RECORD PARTICULARS GIVEN UNDER S263.

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PARTICULARS TO BE ENTERED IN SUMMARY TRIAL REGISTER U/S 263 CrPC

• (a) the serial number of the case
• (b) the date of commission of the offence
• © the date of submission of complaint
• (d) the name of complainant
• (e) the name parentage and address of the accused
• (f) (f) the offence complained of and the offence (if any) proved (extra judicial confession)
• SUMMONING
• AT THIS STAGE SPEAKING ORDERS HAVE TO BE PASSED THAT LET THIS COMPLAINT BE TRIED SUMMARILY U/S 36A AND THIS COURT IS COMPETENT FOR THIS PURPOSE. I HAVE GONE THROUGH THE COMPLAINT AND DOCUMENTS ANNEXED. PRIMA FACIE CASE AGAINST ACCUSED IS MADE OUT. LET ACCUSED BE SUMMONED TO ANSWER TO THE COMPLAINT ON DATE FIXED
• APPEARANCE OF ACCUSED. THE ACCUSED MOVES BAIL APPLICATION UNDER SECTION 437 OF THE CrPC. Bail is granted on personal bond or production of Surities and indentification of surety to the satisfaction of the court. A copy of complaint is given to the accused u/s 207 of CrPC free of cost

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SUMMARY TRIAL U/S 36A

• ON DATE OF APPEARANCE OF ACCUSED AND HANDING OVER A COPY OF COMPLAINT IF NOT DELIVERED EARLIER CASE IS ADJOURNED
• ON THE NEXT DATE A NOTICE OF OFFENCES IS GIVEN TO THE ACCUSED. IT IS SIMILAR TO CHARGE SHEET
• THE ACCUSED IS ASKED IF HE PLEADS GUILTY. IF HE SAYS YES THEN HIS CONFESSION STATEMENT IS RECCORDED. BUT HE HAS TO BE MADE AWARE THAT NO APPEAL LIES AGAINST ANY PUNISHMENT AS A RESULT OF HIS CONFESSION. AGAIN CASE IS ADJOURNED
• IN CASE HE PLEADS NOT GUILTY THEN CASE IS ADJOURNED.
• ON NEXT DATE THE PW DRUGS INSPECTOR LEADS THE WHOLE EVIDENCE AGAINST THE ACCUSED. IF ANY OTHER MATERIAL WITNESS IS REQUIRE TO BE EXAMINED THEN THE SAME IS DONE. THE EVIDENCE IS RECORDED UNDER SECTION 231 CrPC. Proscution witness is allowed to be cross examined

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SUMMARY TRIAL

• S 313; STATEMENT OF ACCUSED IS RECORDED.
• S.333. ENTERING UPON DEFENCE
• S.234 ARGUMENTS
• S. 235 JUDGEMENT OF ACQUITTAL OR CONVICTION
• SALIENT FEATURES
• NO DETAILED EVIDENCES BY PROSECUTION HAS TO BE LED. MATERIAL WITNESS SHOULD STATE THE CRUX WITH STATEMENT RELATED OF TIME PLACE PERSON AND OFFENCES AND MANNER THEIROF

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IMPORTANT FEATURES SUMMARY TRIAL

• CONSIDERATION FOR SUMMARY TRIAL MUST BE DONE AS SOON AS THE COMPLAINT HAS BEEN LAUNCHED
• U/S 36A ALTHOUGH THE OFFENCES MAY PROVIDE PUNISHMENT OF IMPRISONMENT UPTO THREE YEARS AND FINE BUT THERE IS BAR OF ONE YEAR IMPRISONMENT AFTER BEING HELD GUILTY
• IN CASE THE OFFENCES ARE SO OBVIOUS THAT COURT THINKS THE ACCUSED PERSON UPON CONVITION HAS TO BE PUNISHED WITH IMPRISONMENT FOR PERIOD OF MORE THAN ONE YEAR THEN AT ANY STAGE OF PROCEEDINGS BEFORE PRONOUNCEMENT OF JUDGEMENT, THE CASE BY SPEAKING ORDERS CAN BE CONVERTED INTO WARRANT TRIAL. DE NOVA TRIAL HAS TO BEGIN

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IMPORTANT FEATURES OF SUMMARY TRIAL

• THE SUMMARY TRIAL FROM START TO BEGINNING TILL PRONOUNCEMENT OF JUDGEMENT MUST BE HEARD BY THE SAME PRESIDING OFFICER (JMIC).
• IF THE PRESIDING OFFICER IS CHANGED THEN DE NOVA TRIAL HAS TO BE DONE. COMPLAINANT DI MUST BE AWARE OF THIS FACT.
• HE CAN ALSO MOVE AN APPLICATION AT THE BEGINNING FOR WARRANT TRIAL AND AVOID SUMMARY TRIAL

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RAJINDER KUMAR HARNA

M.PHARM, LLB

RETIRED ASSISTANT STATE DRUGS CONTROLLER FDA HARYNA

THANKS

THE LEARNED AUDIENCE

FOR

PATIENT LISTENING