2022 (3) TMI 1648 - HC - Indian Laws

Summons under Drugs and Cosmetics Act set aside for failure to conduct mandatory Section 202 CrPC inquiry and reasoned order

Manmohan Singh Thr. Its POA Harsh Vardhan Garg & 3 Ors. Versus State of Goa, Thr. Public Prosecutor & 11 Ors.

HC found that summons under the Drugs and Cosmetics Act were issued without first conducting the mandatory Section 202 CrPC inquiry, despite the accused ... Cognizance taken and summons issued against the Petitioners under Section 27 of the Drugs and Cosmetics Act, 1940 - offences under Sections 18(a)(i), 18(c), 16(1)(a) read with Rules 124-b, Sections 27(b) (ii), 27(c), 27(d) and 28 of the aforesaid Act - HELD THAT:- As per the law laid down by the Supreme Court in the case of Vijay Dhanuka Etc vs Najima Mamtaj Etc. [2014 (3) TMI 1103 - SUPREME COURT], it has been held that in a case where the accused is residing in a place beyond the area in which the concerned Court is exercising jurisdiction, an inquiry as contemplated under Section 202 of the Cr.P.C. is mandatory. In the present case, there is nothing to show that such an inquiry was conducted before issuance of summons to the Petitioners, despite the fact that, admittedly, the Petitioners are residents of a place beyond the jurisdiction of the concerned Court. In the case of Mehmood Ul Rehman vs. Khazir Mohammad Tunda & Ors. [2015 (3) TMI 1349 - SUPREME COURT], the Supreme Court has reiterated the position of law that while taking cognizance of a complaint and issuing summons/process, the concerned Court is not to do so as a matter of course and that a speaking order is expected. It is also clarified that the Court is not just a post office in such matters and that application of mind should be evident from the order issuing summons/process. The concerned Court has issued summons without recording any reasons even briefly to indicate application of mind for issuance of summons/process - the Petitioners have made out a case for interference. Petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether issuance of summons under Section 27 of the Drugs and Cosmetics Act, 1940, by a Court situated within a territorial jurisdiction is valid where the accused reside beyond that jurisdiction without conducting the inquiry mandated by Section 202 Cr.P.C. 2. Whether a Court, when taking cognizance of a complaint and issuing summons/process, must record reasons evidencing application of mind (i.e., whether a 'speaking order' is required) and whether a bare order stating 'cognizance taken' and 'issue summons' suffices. ISSUE-WISE DETAILED ANALYSIS Issue 1: Requirement of Section 202 Cr.P.C. inquiry before issuing summons against persons residing beyond the Court's territorial jurisdiction Legal framework: Section 202 Cr.P.C. empowers a Magistrate to conduct an inquiry when it appears from a complaint that an offence has been committed and that further inquiry is necessary, particularly where the accused are outside the territorial jurisdiction of the Court. Section 27 of the Drugs and Cosmetics Act, 1940, authorizes summons for offences under that Act. Precedent Treatment: The Court applied and followed the law as laid down by the Supreme Court in Vijay Dhanuka (as relied upon by the petitioners), which holds that where accused reside beyond the territorial jurisdiction of the Court, an inquiry as contemplated under Section 202 Cr.P.C. is mandatory before issuing process. Interpretation and reasoning: The Court examined the factual record and found no indication that any Section 202 inquiry was conducted prior to issuance of summons, despite the admitted fact that the petitioners reside beyond the concerned Court's jurisdiction. The absence of such inquiry was held to be a legal deficiency rendering the issuance of summons vulnerable to quashing. Ratio vs. Obiter: Ratio - where accused reside beyond the territorial jurisdiction of the Court, mandatory compliance with Section 202 Cr.P.C. is required before issuance of summons; failure to do so invalidates the order issuing summons. This principle was applied decisively to the facts. Conclusions: The Court concluded that the failure to conduct the mandatory Section 202 inquiry warranted interference; the impugned order issuing summons was quashed insofar as it related to the petitioners, and the matter was remanded for compliance with law. Issue 2: Necessity of a speaking order / application of mind when taking cognizance and issuing summons/process Legal framework: When a Court takes cognizance of a complaint and issues summons/process, it must apply its mind to the material on record and record reasons for its action to demonstrate that cognizance was not taken as a matter of course. The expectation of a 'speaking order' follows from principles of judicial function and precedential standards. Precedent Treatment: The Court followed the Supreme Court's reiteration in Mehmood Ul Rehman (as relied upon by the petitioners) that a Court is not a mere post office and that the order taking cognizance and issuing process must reflect application of mind; issuance of process without reasons is impermissible. Interpretation and reasoning: The Court reviewed the impugned order which merely recorded receipt of complaint, hearing of the Public Prosecutor, 'Cognizance taken' and 'Issue S/s to the accused u/s 27 of the Drugs of Cosmetics Act, 1940,' without any recorded reasons or analysis. The Court held that such a terse order did not demonstrate application of mind and therefore did not meet the legal standard required when issuing process. Ratio vs. Obiter: Ratio - a Court must pass a reasoned order reflecting application of mind when taking cognizance and issuing summons/process; a bare order recording only reception of complaint and issuance of summons is inadequate. This was treated as essential to the validity of the cognizance/process order. Conclusions: The Court concluded that the impugned order failed to satisfy the requirement of being a speaking order and therefore warranted quashing insofar as it affected the petitioners. The matter was sent back for appropriate proceedings in accordance with law, including the need to apply mind and record reasons before issuing process. Interrelation and remedial direction Legal framework & Reasoning: The two issues were considered conjunctively: the absence of a Section 202 inquiry (when accused reside beyond territorial jurisdiction) and the absence of recorded reasons together rendered the cognizance/summons order legally deficient. The precedents relied upon establish both requirements as mandatory safeguards. Ratio vs. Obiter: Ratio - both compliance with Section 202 Cr.P.C. (where territorial residence is beyond the Court's jurisdiction) and issuance of a reasoned/speaking order demonstrating application of mind are necessary conditions for validly taking cognizance and issuing summons. The Court applied these principles to quash the impugned order as it related to the petitioners. Conclusions and directions: The impugned order issuing summons was quashed and set aside qua the petitioners; the matter was remanded to the trial Court to take appropriate steps in accordance with law, which includes conducting any mandatory Section 202 inquiry where required and issuing a reasoned order demonstrating application of mind before taking cognizance or issuing process.