Rajan Bhardwaj and Ors. Vs. State of Haryana - (High Court of Punjab and Haryana) (08 Mar 2018)

An amendment which affects vested rights is prospective in nature unless legislature makes it retrospective expressly or by necessary implication

MANU/PH/0179/2018

Narcotics

The Petitioners were held guilty of manufacturing/sale of spurious and mis-branded drugs. Consequently, sentence of RI for three years was imposed under Section 27(c) of Drugs and Cosmetics Act, 1940 apart from other sentences. The judgment of conviction and order of sentence was challenged by way of appeal, however, the appeal was dismissed. This has led to the filing of the present revision petitions. The Petitioners has raised two substantive contentions namely, (i) the trial is vitiated because it was conducted by a Court, which did not have the jurisdiction to try such an offence under the Act, and (ii) the conviction under Section 17B of the Act is illegal because at best only a case of mis-branding has been made out in the trial.

By now it is well settled that an amendment which affects vested rights is prospective in nature unless the legislature makes it retrospective expressly or by necessary implication. On the other hand, an amendment which relates to procedure only is presumed to be retrospective unless such a construction is textually impossible. A provision relating to forum is procedural in nature and therefore, Section 36 AB of the Act would apply retrospectively i.e. it would even apply to pending complaints. From the facts of the instant case, it is evident that, the Petitioners had not even been served when the amended provision came into force. The Petitioners put in appearance after service on or about 27th September, 2012, whereas the amendment came into force w.e.f. 10th August, 2009. Thus, the Court of learned Chief Judicial Magistrate, Hisar had no jurisdiction to try this complaint as the petitioners were inter alia accused of manufacturing/selling spurious drugs.

It is evident from the judgment of the learned trial Court that, when the Petitioners were charge-sheeted, the amendment had already come into force. The charges included alleged violation of Section 17B of the Act and the said provision relates to spurious drugs. At that stage, the learned trial Court should have taken note of the amendment and should have transferred the case to the appropriate forum. However, the trial Court failed to notice the amended provision resulting in the present situation. The trial in the present case has been conducted by a Court without jurisdiction and therefore, the trial is vitiated. The judgment of the learned Chief Judicial Magistrate, is nullity as he did not have the authority to decide the present complaint.

The Supreme Court in 'Chandrawati v. Ramji Tiwari, held that, the trial was vitiated on account of non-framing of relevant charge, and the request of the prosecution for remand was turned down on the ground that a long period had elapsed since the inception of the trial.

It is not in doubt that, a long period has elapsed since the complaint was instituted. The Petitioners cannot be held responsible for the long trial because the prosecution is to blame for the delay. It failed to bring the correct provision of law to the notice of the Court and therefore, the Petitioners cannot be made to suffer on account of the inefficiency of the prosecution. Moreover, charge under Section 17B of the Act is not sustainable in law as none of the ingredients of the said section are made out in the present case. The learned State counsel was repeatedly asked whether the allegations of impurities in the sample were true but he always replied in the negative. It would therefore, not be justified to subject the Petitioners to another trial by a competent Court of law. The judgments of the trial Court as well as that of the appellate Court are consequently set aside and the Petitioners are acquitted.

Relevant : Chandrawati v. Ramji Tiwari, MANU/SC/0821/2010: 2011 (5) RCR (Crl.) 95

Tags : CONVICTION VALIDITY TRIAL DELAY