ORDER
S.C. Datta, J.
1. This is an application under Section 482, Criminal Procedure Code praying for quashing the order dated 18-4-1995 passed by the learned Judicial Magistrate Frist Class, Jaleswar, rejecting the petitioner’s application for quashing the proceeding on the ground that the trial Court had no jurisdiction to try the case.
2. The present case was initiated by the Drugs Inspector, Balasorc Range, representing the State of Orissa against the present petitioner under Sections 27(b)(ii), 28, 28A and 27(d) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’). After the initial statements of the complainant and the witnesses were taken, the learned Magistrate framed charges against the accused persons and fixed a date for hearing. At that stage, the petitioner filed a petition before the trial Court for quashing the case on the ground that the procedure adopted by the learned Magistrate was beyond the scope of law and the Court had no jurisdiction to try the case under warrant procedure. However, the learned Magistrate by the impugned order dated 13-4-1995 rejected the petition and fixed a date for further hearing.
3. As against the said order of rejection, the petitioner has moved this Court by filing a petition under Section 402, Cr.P.C. It has been contended that after the incorporation of Section 36A in the Act by the amending Act of 1982, all offences under the Act punishable with imprisonment for a term not exceeding three years, other than an offence under Clause (b) of Sub-section (i) of Section 33(1) shall be tried in a summary way by a Judicial Magistrate, First Class, specially empowered in this behalf of the State Government or by a Matropolitan Magistrate and the provision of Sections 252 to 255 (both inclusive) of the said Code shall as far as may apply to such trial. It has further been contended that the offences for which charges have been framed i.e., Sections 27(b), 28, 28A and 27(d) of the Act. prescribed punishment for less than 3 years. Thelearned Counsel appearing for the petitioner contends that since the trial Court has not been vested with the power to try summarily by the State Government, the trial by the learned Judicial Magistrate, First Class, Jaleswar is without jurisdiction and as such, illegal. It has also been contended that the learned Magistrate was wrong in proceeding with the trial under warrant procedure. It is claimed that the petitioner has been prejudiced thereby.
4. In spite of service of notice upon the opposite party none appears to contest the case. Anyway, it does not apper that the learned Magistrate has been specically empowered as is enjoined in Section 36A of the Act. In this case, the learned Magistrate proceeded with the trial of the case under warrant procedure and after initial statement of (he complainant’s witnesses was taken, he framed charges and thereupon issued summons to the witnesses for cross-examination. Section 36A provides that all offences under the Act punishable with imprisonment fora term not exceeding three years, other than an offence under Clause (b) of Sub-section (1) of Section 33(1), shall be tried in a summary way by judicial Magistrate of the first class specially empowered in this behalf by the State Government. But here in this case, there is nothing to indicate that the learned Magistrate has been specially empowered by the State Government. Accordingly, the learned Magistrate proceeded trial with this case under warrant procedure. In a trial under warrant procedure, the accused would get enough opportunity to cross-examine the prosecution witnesses at length which is not available in a trial of offences in a summary way. There is no substance in the contention raised by thelearned Counsel for the petitioner that the petitioner has been prejudiced by the procedure of trial adopted by the learned Magistrate. Therefore, there cannot be any hesitation to reject the contention raised by thelearned Counsel for the petitioner.
5. The petitioner has taken another ground of attack. It has been submitted that for initiation of the case sanction is necessary and there being no specific sanction order, the entire proceeding is without jurisdiction.learned Counsel appearing for the petitioner submits that the Drugs Controller, Orissa, is not the authority to sanction the prosecution. The prosecution has filed one letter dated 6-3-1991 to indicate that the Drugs Controller, Orissa, has sanctioned prosecution of the complainant.learned Counsel for the petitioner contends that the Director of Health of the State Government is the proper authority and not the Drugs Controller as mentioned in Section 33C of the Act. He has, however, failed to produce any document to show that the Director of Health of the State Government is the authority to sanction the prosecution. The letter dated 6-3-1991 of the Drugs Controller, shows thai the prosecution against the petitioner as recommeded by the Drugs Inspector, Balasore Range, has been approved. On scrutiny of this document, it appears that it is not a proper sanction for prosecution. There has been total non application of the mind. The Drugs Controller did not apply his mind but in a mechanical manner approved the recommendation of the Drugs Inspector for prosecution of the petitioner. It has been mentioned therein that before final submission of the prosecution report, the matter should be got properly examined by the A.P.P. who could take up the case on behalf of the prosecution. There is nothing to indicate that the Drugs Controller applied his mind to the facts of the case and considered the materials placed before him to come to the conclusion and then approved of the sanction. It may be observed that for sanction to be valid, it must be proved that the sanction was given in respect of the facts constituting the offences charged. The sanctioning authority is placed somewhat in the position of the sentinel at the door of the Criminal Courts in order that no irresponsible or malicious prosecution can pace the portale of the Court of justice. Therefore, considering the facts and circumstances of the case and the law in this regard, it can safely be concluded that there is no valid sanction for prosecution and on this ground only, the petitioner is entitled to succeed.
6. For the reasons aforesaid, the application under Section 482, Criminal Procedure Code is allowed and the entire proceeding is quashed.
The Criminal Misc. case disposed of accordingly.