2026:HHC:38483 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 35 of 2015 Reserved on: 03.09.2026 Decided on: 10.09.2026 Mahinder Singh …. Petitioner Versus State of HP …. Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr Vivek Thakur, Advocate. For the Respondent/State : Mr Jitender Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition against the judgment dated 19.12.2014 passed by learned Additional Sessions Judge, Hamirpur, Circuit Court at Barsar (learned Appellate Court), vide which the judgment of conviction dated 26.11.2011 and order of sentence dated 01.12.2011 passed by learned Judicial Magistrate First Class, Barsar, District Hamirpur, H.P (learned Trial Court) were upheld. (The parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:38483 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present revision are that the complainant, Drug Inspector, filed a complaint before the learned Trial Court under Section 18(c) and Section 18A read with Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940 (Drugs Act). It was asserted that the complainant visited the premises of the accused, being run in the name and style of M/s Jaswal Clinic-cum-Medical Store at VPO, Behru, Tehsil Barsar, District Hamirpur. The accused was present in the premises and was dealing in allopathic drugs. The complainant demanded the license for stocking and exhibiting the allopathic drugs for sale, and the accused produced a photocopy of the certificate of Hindi Sahitya Sammelan, Allahabad, which does not authorise anyone to practice the modern system of medicine. The complainant asked the accused to show the purchase record and disclose the name, address and other particulars of the person from whom he had acquired the drugs, but he failed to do so. Hence, the complainant seized the drugs, obtained the custody order and filed a complaint before the learned Trial Court. 3 2026:HHC:38483 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Section 27(b)(ii) and Section 28 of the Drugs Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined Nishant Sareen (CW1), Jagdish Chand (CW2) and Shambhu Ram (CW3) to prove the complaint. 5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC), denied the complainant's case in its entirety. He claimed that he was campaigning in the elections in Madhya Pradesh. He was not running any shop. He had produced a certificate for getting a license. His signatures were obtained on the blank papers. A false case was made against him due to political rivalry. He claimed that he was innocent. He examined himself (DW1), Ajay Kumar (DW2) and Banku Ram (DW3) to prove his defence. 6. Learned Trial Court held that the statement of the complainant and his witnesses proved that the accused was found in possession of the allopathic drugs. He could not produce 4 2026:HHC:38483 any document authorising him to keep the drugs. The plea taken by him that he was not present at Hamirpur at the time of the inspection or that he had submitted the certificate for obtaining a license was not established. Hence, the learned Trial Court convicted and sentenced the accused as under: Sections Sentence Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940. To undergo rigorous imprisonment for one year, pay a fine of ₹5000/- and in default of payment of fine, to undergo simple imprisonment for four months. Section 28 of the Drugs and Cosmetics Act, 1940. To undergo rigorous imprisonment for three months, pay a fine of ₹1000 and in default of payment of fine, to undergo simple imprisonment for two months. Both the substantive sentences of imprisonment were ordered to run concurrently. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Additional Sessions Judge, Hamirpur, Circuit Court at Barsar (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused was running a clinic. He had stocked the drugs in the clinic. He could not produce any 5 2026:HHC:38483 document authorising him to stock and exhibit the drugs for sale. The learned Trial Court had rightly convicted and sentenced the accused. Therefore, the appeal was dismissed. 8. Being aggrieved by the judgments and order passed by learned Courts below, the accused has filed the present revision asserting that learned Courts below erred in appreciating the material on record. The plea taken by the accused that he was not present at Hamirpur was not properly appreciated by the learned Courts below. The mandatory provisions of the Drugs Act were not complied with. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside. 9. I have heard Mr Vivek Thakur, learned counsel for the petitioner/accused, and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State. 10. Mr Vivek Thakur, learned counsel for the petitioner/accused, submitted that the complaint was filed before the learned Trial Court on 18.03.2010 when the amended provisions of the Drugs Act were in force, and jurisdiction was conferred upon the Sessions Court to try the cases. The learned 6 2026:HHC:38483 Magistrate should have committed the case to the Court of Sessions instead of trying it. The learned Trial Court had conducted the proceedings without jurisdiction, and the learned Appellate Court erred in upholding the proceedings. Therefore, he prayed that the judgments and order passed by the learned Courts below be set aside. 11. Mr Jitender Sharma, learned Additional Advocate General for the respondent/State conceded that the complaint was filed after the enforcement of the Amendment Act, vide which the exclusive jurisdiction has been conferred upon the Court of Sessions to try the complaint under the Drugs and Cosmetics Act. He prayed that an appropriate order be passed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The record of the learned Trial Court shows that the complaint was filed before the learned Trial Court on 18.03.2010. The legislature amended Section 32 of the Drugs Act by Act No.26 of 2008, which came into force on 10.08.2009, and provided that no Court inferior to the Court of Sessions shall try an offence punishable under this Chapter. Therefore, an exclusive 7 2026:HHC:38483 jurisdiction was conferred upon the Court of Sessions on the date of presentation of the complaint. 14. In Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696: 2013 SCC OnLine SC 185, the State of Madhya Pradesh amended the first schedule of the Code of Criminal Procedure by the Code of Criminal Procedure (Madhya Pradesh Amendment Act), 2007 and provided that the offences punishable under Sections 467, 468 and 471 would be triable by the Court of Sessions. This amendment was published in Madhya Pradesh Gazette Extraordinary on 22.02.2008. An FIR was registered against the accused on 18.05.2007. These facts were noticed by the Hon’ble Supreme Court as under at page 699: 2. The factual matrix in which the controversy arises may be summarised as under: Crime No. 129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 IPC was registered against the appellant on 18-5-2007, at Bheraghat Police Station. On the date of the registration of the case, the offences in question were triable by a Magistrate of the First Class in terms of the First Schedule of the Code of Criminal Procedure, 1973. That position underwent a change on account of the Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007, introduced by Madhya Pradesh Act 2 of 2008, which amended the First Schedule of the 1973 Code and, among others, made offences under Sections 467, 468 and 471 IPC triable by the Court of Session instead of a Magistrate of the First Class. The amendment received the assent of the President on 14-2-2008 and was published in Madhya Pradesh Gazette (Extraordinary) on 22-2-2008. 8 2026:HHC:38483 15. It was held by the Hon’ble Supreme Court that the Magistrate was bound to commit any case filed after the Amendment to the Court of Sessions as per the Amendment Act. It was observed at page 701: 8. Applying the test judicially recognised in the above pronouncements to the case at hand, we have no hesitation in holding that no case was pending before the Magistrate against the appellant as on the date the Amendment Act came into force. That being so, the Magistrate, on receipt of a charge- sheet which was tantamount to institution of a case against the appellant, was duty-bound to commit the case to the Sessions as three of the offences with which he was charged were triable only by the Court of Session. The case having been instituted after the Amendment Act had taken effect, there was no need to look for any provision in the Amendment Act for determining whether the amendment was applicable even to the pending matters, as on the date of the amendment no case had been instituted against the appellant nor was it pending before any court to necessitate a search for any such provision in the Amendment Act. The Sessions Judge as also the High Court were, in that view, perfectly justified in holding that the order of committal passed by the Magistrate was a legally valid order and the appellant could be tried only by the Court of Session to which the case stood committed. 16. It was further held that the change of law was procedural and the accused would be tried by the Court of Session and not by the Court of Magistrate. It was observed at page 705: 14. The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of the Magistrate, First Class to the Court of Sessions. Apart from the fact that, as on the date the amendment came into force, no case had been instituted against the appellant nor had the Magistrate taken cognisance against the appellant, any amendment shifting the forum of the 9 2026:HHC:38483 trial had to be, on principle, retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial, for no such right is recognised. The High Court was, in that view of the matter, justified in (sic not) interfering with the order passed by the trial court. 17. It was laid down by the Kerala High Court in C.P. Udayadivakaran v. State of Kerala, 2012 SCC OnLine Ker 20028 that even though the offence has been committed before the commencement of the amending Act, the case has to be tried by the Special Court, except for the cases which are pending before the Magistrate. It was observed: - 5. I do not find any merit in the submissions made by the counsel that the amendment to the Act brought in by Act 26 of 2008, so far as the trial of the offences in pending cases, even if such offences after the amendment are to be tried by the Special Court, can be given effect to only prospectively. Section 36AB of the Act, inserted by amendment under Act 26 of 2008, mandates the constitution of special courts for trial of certain offences covered by the Act. Section 36AB of the Act reads thus: “36AB. Special Courts - (1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of Section 13, sub- section (3) of Section 22, clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and clause (b) of sub-section (1) of Section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas for such case or class or group of cases as may be specified in the notification. 10 2026:HHC:38483 Explanation: In this sub-section, “High Court” means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.” Other than the offences referred to in Section 36AB of the Act, which are exclusively triable by the special court, the rest of the offences punishable under the Act can be taken cognisance of and tried by the magistrate as before. Amendment by inserting Section 36AB to the Act came into force from 10.8.2009. Once such an amendment has come into effect, and by notification a special court has been constituted, cases involving the offences referred to under Section 36AB of the Act, whether their commission was before or after the amendment, if not already finally disposed of by the magistrate, can be tried only by that special court alone. On Annexure A1, the complaint, the magistrate has taken cognisance, and the case is pending trial before him, will not confer jurisdiction on the magistrate to proceed further with the trial of the case when, by virtue of the amendment and insertion of Section 36AB, the offences involved, or any of them, are triable only by a special court. The accused proceeded in the case by the magistrate would lose a right of appeal or revision; even if that be so, it will have no impact in considering the scope of the amendment, whether it is prospective or retrospective. So far as change or amendment to any forum or course of procedure, none can claim any vested right. Where there is a change in law of forum or procedure, it operates retrospectively unless otherwise specifically provided. The Supreme Court in “Hithendra Vishnu Takkur and Others” (1994 (4) SCC 602), dilating on various aspects over the scope of an amending act and its retrospective operation, has held thus: “i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an 11 2026:HHC:38483 extended meaning and should be strictly confined to its clearly defined limits. ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” 6. So far as the forum is concerned, even if it is changed midway by an amending Act, pending a proceeding, it cannot be contended that the party thereto has a vested right to continue such proceedings where it was commenced. Change of forum by an amending Act cannot amount to an invasion of the right of the accused except in a case where there is any objection by way of discrimination or the failure of any other fundamental right. By the Amendment Act 26 of 2008, the magistrate has ceased to have jurisdiction to try the offences covered by Section 36AB of the Act even if such offences had been taken cognisance, as exclusive jurisdiction to try such offences has been conferred on a different forum, a special court. When that be so, such special court constituted as mandated under Section 36AB alone can try the offences referred to in that Section. 7. The decisions relied upon by the counsel in no way assist the petitioner to contend change of forum under the amendment Act after cognisance of the offence is taken can be given only prospective effect. In Zile Singh's case, referred to above, the effect of an amending Act in relation to the impact on a vested substantive right of a party was considered, and it was held that such amendment has to be treated as prospective unless it is expressly or by necessary implication made to have a retrospective operation. That is not the case here. In Basheer's case referred to above, the constitutional validity of the proviso to sub-section (1) of Section 41 of the Narcotic Drugs and 12 2026:HHC:38483 Psychotropic Substances (Amendment) Act, which was challenged as discriminatory, arose for consideration. The challenge was repelled, holding that cases which had already been tried and disposed of before the amendment have to be disposed of in accordance with the provisions covered by the unamended Act. In National Commission of Women v. State of Delhi, the Supreme Court, negativing the challenge canvassed by the petitioner in that case, dilating upon the nonentertainability of the petition, made an observation over the proviso added to Section 372 of the Code of Criminal Procedure. The observation made that the “proviso may not be applicable” to the facts of the case, without anything more, does not lay down any proposition or throw light on the effect of an amendment Act over the change of forum or procedure. 8. If the magistrate had disposed of the case finally after trial before the amendment inserted under Section 36AB of the Act came into effect, then alone, the unamended Act can have application. Pending trial before the magistrate, amendment having been inserted under Section 36AB of the Act conferring exclusive jurisdiction on the special court over some offences of the Act, the magistrate has no jurisdiction to proceed with further trial of the case involving such offences. If the offences under the Act taken cognisance of are shown to be exclusively triable by the Special Court, the magistrate has to commit the case, and that alone was done in the present case. 18. This Court differed with the conclusion of the Kerala High Court that the magistrate can try the offences other than those triable by the Special Court in SBS Biotech v. State of H.P., 2024 SCC OnLine HP 6578, which was approved by the Hon’ble Supreme Court in SBS Biotech v. State of H.P., (2026) 6 SCC 353. 19. In the present case, the complaint was filed after the enforcement of the Amendment Act, and the complaint was to be 13 2026:HHC:38483 committed to the Court of Sessions in terms of Section 32 of the Amended Drugs Act. Hence, there is force in the submission of learned counsel for the petitioner that the learned Trial Court had no jurisdiction to try and convict the accused. 20. Therefore, in view of the above, the present revision is allowed and the judgment of conviction dated 26.11.2011 and order of sentence dated 01.12.2011 passed by learned Judicial Magistrate First Class, Barsar, District Hamirpur, H.P as affirmed by learned Additional Sessions Judge, Hamirpur, Circuit Court at Barsar vide judgment dated 19.12.2014, are ordered to be set aside. 21. The matter is remitted to the learned Trial Court, which shall proceed as per the amended Drugs Act. The parties through their learned counsel are directed to appear before the learned Trial Court on ________. 22. The record along with a copy of this judgment be sent forthwith to reach the learned Trial Court well before the date fixed. 14 2026:HHC:38483 23. The observation made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 10th September, 2026 (Nikita)