ORDER
Hemant Gupta, J.
1. The Challenge in the present revision petition is to the order convicting the present petitioner for an offence under Section 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1949 (hereinafter referred to as the Act).
2. Shri K. K. Maheshwari, District Drugs Inspector, Ambala received an information that the accused had been practicing in drugs without being a registered medical practitioner at village Baragaon. In order to investigate that complaint, the Drugs Inspector along with. Hari Om Parkash Gupta, the then Medical Officer, Civil Hospital Naraingarh and one Khaleel Rehman went to Village Baragan on 15-7-1983 and visited the premises of the accused. The accused was present in his shop along with number of patients. Many allopathic drugs were found lying on the racks and dispensing table in the shop premises. The accused was asked to show his registration certificate or sale licence which could have entitled him to sell or stock or exhibit or offer’ for sale or distribute the drugs lying in his shop premises. He was also asked to produce purchase vouchers of all these drugs to show the source of purchase of the same. The accused told the Drugs Inspector in the presence of the witnesses that he was neither a registered medical practitioner nor had a licence to sell the drugs. He had brought all the drugs to sell and dispense to his patients. On inspection, the accused was found having stocked and exhibited for sale and distribution many different types of allopathic drugs which were 44 in number. 45 different types of drugs were packed in their respective duly labelled containers and one was lying in an unlabelled container which was stated to be Digene tablet. The drugs were sealed in the presence of the accused and the witnesses. The sealed packets containing drugs were produced before the Chief Judicial Magistrate, Ambala, who put his seal and passed the order allowing the Drugs Inspector to keep the drugs in his possession. Subsequently, the complaint was filed before the Chief Judicial Magistrate, Ambala for keeping allopathic drugs without any licence and to disclose the source of purchase or acquisition of the drugs found in his possession punishable under Section 27(b)(ii) and 28 of the Act.
3. The trial of the case was concluded as a warrant case. The complainant was called upon to adduce pre charge evidence and on appreciation of pre charge evidence, charge was framed against the accused who pleaded not guilty and claimed trial. The prosecution witnesses were examined. Statement of the accused under Section 313, Cr.P.C. was recorded and the learned trial Court passed an order convicting the present petitioner for the offences aforesaid. The appeal against the said Judgment has been dismissed.
4. Challenge in the present revision petition against the order of conviction is two fold, namely that the learned trial Magistrate was not empowered to conduct the trial in terms of Section 36A of the Drugs and Cosmetics Act, 1940 as such power was conferred on 29-9-1991. The learned counsel for the petitioner in support of his contention has relied upon Jitendra Kumar Nagar v. State of Haryana, (1993) 2 Rec Cri R 92 (Pun) & Har), Bawa Singh v. The State of Punjab, 1982 Pun LR 560 : (1983 Cri LJ (NOC) 60) and Rang Lal v. State of Haryana, (1995) 3 Rec Cri R 212 (Punj & Har). In the case cited it has been held that trial by a Magistrate not empowered under Section 36A of the Act will vitiate the entire proceedings and the complaint was quashed exercising powers under Section 482 of the Code of Criminal Procedure.
5. Section 36A was inserted by Central Act No. 68 of 1982 wherein it was contemplated that notwithstanding anything contained in the Code of Criminal Procedure all offences under this Act whether punishable with imprisonment for a term not exceeding three years shall be tried in a summary way by a Judicial Magistrate specifically empowered by the State Government in this behalf. Prior to insertion or Section 36A of the Act and amendment in Section 32 vide Act No 68 of 1982 the cognizance of an offence under the Act was to be taken by a Presidency Magistrate or by a Judicial Magistrate. Sections 32, 36 and 36A of the Act read as under :
“32. Cognizance of offences– (1) No prosecution under this Chapter shall be instituted except by an inspector or by the person aggrieved or by recognised consumer association whether such person is a member of that association or not.
(2) No Court inferior to that or a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constituted an offence against this Chapter.
36. Magistrates power to impose enhanced penalties — Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act in excess of his powers under the said Code.
36-A. Certain offences to be tried summarily — Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act, punishable with imprisonment for a term not exceeding three years, other than an offence under Clause (b) of Sub-section (1) of Section 33I shall be tried in a summary way by a judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment of a term not exceeding one year :
Provided further that when at the commencement of, or in the course of, a summary, trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to her or rehear the case in the manner provided by the said Code.”
6. At this stage, it will be relevant to consider the provisions of summary trial under the Criminal Procedure Code (hereinafter referred to as the Code) as well. Chapter XXI of the Code deals with summary trials. Section 260 of the Code contemplates, that any Chief Judicial Magistrate, any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf of the High Court may try in a summary way all or any of the offences mentioned therein. Clause 1(i) contemplates that the offence not punishable with death, imprisonment for life or imprisonment for a term exceeding two years can be tried in a summary manner. It is further contemplated in Section 262 of the Code that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under the said Chapter. Sections 260 and 262 of the Code read as under :
“260. Power to try summarily, — (1) Notwithstanding anything contained in this Code —
(a) any Chief Judicial Magistrate ;
(b) any Metropolitan Magistrate ;
(c) any Magistrate of the first class specifically empowered in this behalf by the High Court.
may, if he thinks, fit, try in a summary way all or any of the following offences :–
(i) offences not punishable with death, imprisonment for the life or imprisonment for a term exceeding two years ;
(II) …………………
261. Summary trial by Magistrate of the second class. –The High Court may confer on any Magistrate invested with the (towers of a Magistrate or the second class power to try summarily any offence which punishable only with fine or with imprisonment for a term not exceeding six months with or without fine, and any abatement Of or attempt to commit any such offence.
262. Procedure for summary trials. –(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
7. The procedure of trial of a summons case is contained in Section XX of the Code. It is contemplated that when in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. The summons case are the one cases relating to offence not being a warrant case. The warrant case has been defined under Section 2(x) to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
8. It is, thus, apparent that in the course of trial of a summons case, relating to an offence punishable with imprisonment of a term exceeding 6 months, it is open to the Magistrate that the offence should be tried in accordance with the procedure for trial of a warrant case and the Magistrate has been empowered to proceed to rehear the case in accordance with the procedure for the trial of warrant case. It is, thus, apparent the trial of certain offences in summary manner is an enabling provision. All trials can be conducted in accordance with the procedure for trial of warrant cases. As a matter of fact, the restriction is only in respect of trial in summary manner which is required to be conducted either by Chief Judicial Magistrate, Metropolitan Magistrate or a Magistrate of the First Class specially empowered by the High Court under the Code.
9. Now the question which arises is whether insertion of provisions of summary trial under Section 36A of the Act oust the Jurisdiction of the Judicial Magistrate competent to try a case under Section 32 of the Act or that Section 36A of the Act is only enabling provision whereby specially empowered Magistrate is competent to try the offences punishable with Imprisonment for a term not exceeding 3 years in a summary manner.
10. A perusal of the provisions of Section 36A would show that it starts with non-obstante clause i.e. notwithstanding any thing contained in the Code of Criminal Procedure, all offences under this Act shall be tried in a summary way by a Judicial Magistrate specially empowered in this behalf by the State Government. Under the Code, the offences where Imprisonment of less than two years can be tried in a summary manner either by Chief Judicial Magistrate or by a Magistrate specially empowered in that behalf, therefore, by virtue of Section 36A of the Act an overriding effect was given whereby offences punishable with imprisonment not exceeding three years could be tried in a summary manner. However, such provisions only enable the State Government to empower Judicial Magistrate to try such offences in a summary manner. The provisions of Section 36A of the Act have to be read along with provisions of Sections 32 and 36 of the Act and not in isolation. A Magistrate is competent to take cognizance of an offence under Section 32 of the Act in terms of the provisions of the Code of Criminal Procedure. Only if the Magistrate is to exercise summary jurisdiction, he has to be specifically empowered by the State Government.
11. In Jitender Kumar Nagar’s case (1993 (2) Rec Cri R 92) (supra) relied upon by the petitioner on application moved by the accused the trial Court ordered the case to be tried as a summons case. However, it was found that the said Magistrate was not empowered by the State Government to conduct trial as a summons case and thus the complaint was quashed. Other judgment relied upon by the petitioner i.e. Surinder Kumar Tuteja v. State of Haryana (1995) 3 Rec Cri R 794 (Punj and Har) has relied upon the earlier judgment in Jitender Kumar’s case. However, the distinguishing factor that the trial in Jitender Kumar’s case was ordered to be conducted in summary manner, although the Magistrate was not empowered in that behalf was not brought to the notice of the Court, However, in Shiv Lal Yadav’s case this Hon’ble Court quashed the proceeding holding that Chief Judicial Magistrate has no Jurisdiction to entertain and take cognizance of the complaint prior to issuance of a Notification dated 20-9-1991. However, in the short judgment, the issue was not debated nor other provisions of law were brought to the notice of the Court and thus the said judgments without noticing the other statutory provisions is a Judgment does not lay down any binding precedent. The trial of the offences under the Act could be conducted in accordance with the provisions of Sections 32 and 36 of the Act. The Interpretation sought to be canvassed would result into situation where the trial for an offence under the Act could not be conducted either as a warrant case or as a summary case prior to 20-9-1991. Since in the present case, the trial of the accused has proceeded as a warrant case, therefore, there was no illegality in conducting of such trial by the Judicial Magistrate of the First Class.
12. Even otherwise, the judgments relied upon by the counsel for the petitioner were rendered in cases where the accused have approached this Court for quashing of the complaint at the threshold of the trial. However, in the present case, the accused has been convicted by the trial Court. His appeal has been dismissed. He has suffered to prejudice on account of his trial as a warrant case.
13. Faced with this situation, the learned counsel for the petitioner argued that there is no evidence that the drugs were for sale. In support of this contention, he relied upon Mohd. Shabir v. State of Maharashtra 1979 SCC (Crl) 356 : (1979 Cri LJ 466 : (AIR 1979 SC 564). However, the said case is clearly distinguishable. That was a case where the drugs were recovered from an accused from the railway station. It was found that the drugs were not for sale. However, in the present case, the drugs were recovered from the accused from the shop wherein accused was found in the shop with patients. The drugs were stocked in racks and was also found on dispensing table. There were 44 different kind of drugs. In this view of the matter, the reliance of the petitioner on the said judgment is clearly misconceived. The drugs were not only found stocked but also they were meant for sale in view of the evidence produced on record.
14. Consequently, I do not find any material illegality or irregularity in the findings recorded by the Courts below, Consequently, the present revision petition is dismissed . However, keeping in view the fact that the petitioner is suffering agony of trail since 1983, it will be just and proper to reduce the sentence to that already undergone by the petitioner. Consequently, I modify the sentence to that already undergone. With the said modification, the revision is dismissed.