Gazette re-appointment not needed on Drugs Inspector’s transfer; Sessions trial requires Magistrate’s committal; Section 468 CrPC bar inapplicable where joint trial involves graver Drugs Act offences — Karnataka High Court in Vishwanath v. State of Karnataka

Introduction

This commentary examines the Karnataka High Court’s CAV order dated 26 September 2025 in Vishwanath S/o Doddabasappa Kadli v. State of Karnataka (CRL.P No. 103433 of 2024), delivered by the Hon’ble Mr. Justice S. Vishwajith Shetty at the Dharwad Bench. The petitioner (Accused No. 2), a licensed wholesale dealer of allopathic drugs, sought quashing under Section 482 of the Code of Criminal Procedure, 1973 (read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) of proceedings in C.C. No. 369/2023 arising from PCR No. 25/2023 for offences under Sections 18(a)(vi) and 27(d) of the Drugs and Cosmetics Act, 1940 (D&C Act).

The prosecution case alleged that Accused No. 1 ran “Sanjeevani Clinic” at Laxmeshwar without being a registered medical practitioner or holding a drug licence and procured allopathic drugs from Accused No. 2. The State alleged that Accused No. 2, a Form 20B and 21B licensee (wholesale dealer), violated express licence conditions prohibiting sale to persons not holding the requisite sales licence. The petitioner raised three principal legal objections:

Limitation: Cognizance barred under Section 468 CrPC since the maximum penalty under Section 27(d) is up to two years.
Competence of complainant: The Assistant Drugs Controller (complainant) was originally notified under Section 21 of the D&C Act for Shivamogga Circle; after transfer to Gadag Circle, no fresh Gazette notification under Section 21(1) appointed him for Gadag, rendering the complaint incompetent under Section 32.
Forum of cognizance/trial: Under Section 32(2) of the D&C Act, only the Sessions Court can try such offences; hence a Magistrate could not entertain the complaint.

The petition relied on decisions from Bombay and Himachal Pradesh High Courts, a Karnataka High Court order, and a Supreme Court decision (Miteshbhai J. Patel) to support these propositions. The State countered with the Bombay High Court’s decision in State of Maharashtra v. Ghanshyam K. Zaveri and a recent Karnataka decision clarifying that Sessions Courts cannot take direct cognizance under the D&C Act absent committal under Section 193 CrPC.

Summary of the Judgment

The High Court dismissed the petition. Its key holdings are:

Limitation: Section 468 CrPC does not bar cognizance where multiple offences “which may be tried together” include one punishable with imprisonment exceeding three years. Since Accused No. 1 faces offences punishable up to five years (Sections 18(c) and 27(b)(ii)), Section 468 is inapplicable to the joint trial; the Supreme Court’s decision in Miteshbhai J. Patel (on two-year maxima) was distinguished.
Inspector’s competence after transfer: A fresh Gazette notification under Section 21(1) is not required upon a Drugs Inspector’s transfer. An initial Gazette appointment as “Inspector” suffices; subsequent area assignment by transfer order (administrative act) is adequate. Narrow interpretations demanding re-notification on every transfer were rejected as impracticable and contrary to the Act’s purpose, with reliance on State of Maharashtra v. Ghanshyam K. Zaveri (Bom HC) and Bharat Damodar Kale v. State of A.P. (SC).
Sessions forum and committal: Section 32(2) D&C Act only stipulates that no court inferior to a Sessions Court shall try the offence; it does not authorize Sessions Courts to take direct cognizance. By Section 193 CrPC, Sessions Courts need committal by a Magistrate. The Court reaffirmed its own decision in M/s. Padma Pharmaceuticals v. State (2025 LiveLaw (Kar) 75). Here, the Magistrate had in fact committed the case on 26.05.2024; the procedure was sound.

Detailed Analysis

Precedents Cited and Their Influence

State of Maharashtra v. R.A. Chandawarkar (1999(2) Mh.L.J. 650)
– Cited by the petitioner to argue that an Inspector must be specifically notified for the relevant area to act. The Karnataka High Court did not adopt this restrictive reading in the transfer context; instead, it preferred the later Bombay view in Ghanshyam K. Zaveri, recognizing that area assignment can validly occur by administrative order without a fresh Gazette notification on transfer.
Marc Laboratories Ltd. v. Union of India (2019 SCC OnLine HP 2825)
– Relied upon to underscore strict compliance with Section 21 D&C Act for valid prosecution. The Court effectively distinguished its application, emphasizing pragmatic administration under Section 21 and the sufficiency of initial gazetted appointment plus transfer order.
S.A. Kishore v. State by Drug Inspector (Karnataka High Court, Crl.P. No. 5292/2010, 09.04.2013)
– Invoked to challenge the complainant’s authority. The present Court, however, held that the combination of the original Section 21(1) appointment by Gazette and subsequent transfer to Gadag Circle is compliant, especially in light of Ghanshyam K. Zaveri and the Supreme Court’s reasoning in Bharat Damodar Kale.
Miteshbhai J. Patel v. Drug Inspector (Supreme Court, SLP(Crl.) Nos. 3662–3663/2024)
– The petitioner used this to press the Section 468 CrPC limitation bar where the offence carries a two-year maximum. The High Court distinguished it because Section 468(3) CrPC directs that where offences which may be tried together are involved, limitation is governed by the most severe punishment among them. With Accused No. 1 facing up to five years under Section 27(b)(ii), the limitation bar was inapplicable.
State of Maharashtra v. Ghanshyam K. Zaveri (2000 SCC OnLine Bom 748)
– Central to the Court’s reasoning on Section 21. It held that: (i) gazette notification is required to appoint a person as Inspector; (ii) the specific “area” can be assigned later by a separate order; (iii) subsequent area postings need not be by Gazette notification; (iv) restrictions/conditions on powers fall within Section 21(2). The Karnataka High Court adopted this framework to uphold the complainant’s competence post-transfer to Gadag Circle.
Bharat Damodar Kale v. State of A.P. ((2003) 8 SCC 559)
– Though arising under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the Supreme Court endorsed avoiding narrow territorial interpretations that frustrate public interest in drug regulation. The Karnataka High Court invoked this approach to resist a constricted reading that would require fresh Gazette notification for every transfer, which would unduly hobble enforcement.
M/s. Padma Pharmaceuticals and Another v. State (2025 LiveLaw (Kar) 75)
– The Karnataka High Court’s own recent ruling clarifying that, unlike statutes such as the SC/ST Act (Section 14, second proviso) and the Prevention of Corruption Act (Section 5(1)), the D&C Act does not authorize Special/ Sessions Courts to take direct cognizance. Therefore, Section 193 CrPC applies, and committal by a Magistrate is required before the Sessions Court tries the matter. This decision was applied and reaffirmed.

Legal Reasoning

1) Limitation under Section 468 CrPC and joint trials

Section 468 CrPC bars cognizance for offences punishable with imprisonment up to three years, subject to prescribed limitation periods. Crucially, Section 468(3) directs that, for offences which may be tried together, limitation is pegged to the offence carrying the “most severe punishment.”

Here, Accused No. 2 faces Section 27(d) (up to two years) for violating licence conditions by supplying to an unlicensed person, but Accused No. 1 faces Section 27(b)(ii) (up to five years) for selling/stocking without licence under Section 18(c). Because the two are alleged to have acted within a connected factual matrix (supply to an unlicensed seller and dispensing by that unlicensed seller), a joint trial is permissible. Consequently, the five-year maximum attached to Accused No. 1’s charge governs the limitation calculus under Section 468(3), rendering Section 468 inapplicable. The Court therefore found the reliance on Miteshbhai J. Patel misplaced.

2) Appointment and territorial competence of Drugs Inspectors after transfer (Section 21 D&C Act)

Section 21(1) authorizes the Central or State Government to appoint Drugs Inspectors by Gazette notification “for such areas as may be assigned to them.” Section 21(2) contemplates that an Inspector’s powers, duties, and the conditions or limitations attached thereto “shall be such as may be prescribed,” acknowledging a measure of flexibility in how operational parameters (including areas) are allocated and administered.

In this case, the complainant had been duly appointed by Gazette notification (16.07.2011) as Inspector for Shivamogga Circle. He was subsequently transferred to Gadag Circle by a Government order dated 23.06.2022. The petitioner insisted that a fresh Gazette notification under Section 21(1) assigning Gadag Circle was indispensable. The Court disagreed for reasons of text, structure, and practicality:

Reading Sections 21(1) and 21(2) together, the Act permits initial appointment by Gazette and subsequent area assignment via administrative orders, without insisting on a fresh Gazette notification upon every transfer.
Administrative transfers are routine; requiring gazetting for each transfer would be impracticable, introduce avoidable delay, and undermine the Act’s enforcement objectives.
This approach aligns with the Bombay High Court’s reasoning in Ghanshyam K. Zaveri and with the Supreme Court’s caution in Bharat Damodar Kale against narrow interpretations that frustrate public-purpose regulation.

Accordingly, the Court held that the complainant’s authority to investigate and institute prosecution in Gadag Circle remained intact post-transfer.

3) Sessions to try; Magistrate to take cognizance and commit (Sections 32 D&C Act and 193 CrPC)

Section 32(1) of the D&C Act restricts who may institute prosecutions (including an “Inspector” under Section 21), while Section 32(2) provides that no court inferior to a Court of Session shall try such offences. The petitioner argued that this precluded a Magistrate from entertaining the complaint. The Court rejected this, clarifying:

Section 32(2) deals with “trial,” not “cognizance.”
Absent an express statutory authorization for direct cognizance by the Sessions Court (as seen, for example, in Section 14 of the SC/ST Act or Section 5(1) of the PC Act), Section 193 CrPC applies, requiring committal by a Magistrate.
Here, the Magistrate had in fact committed the case to the Sessions Court on 26.05.2024 under Section 209 CrPC. The procedural posture was correct.

This reasoning reaffirms the Karnataka High Court’s position in M/s. Padma Pharmaceuticals that D&C Act prosecutions must follow the standard committal route unless the statute expressly provides for direct Sessions cognizance.

Impact and Implications

Inspection and prosecution continuity: The ruling removes a technical defence that could obstruct regulatory prosecutions — namely, that Drugs Inspectors lose competence on transfer absent a fresh Gazette notification. By validating transfer orders as sufficient area assignment, enforcement can proceed without administrative delays.
Compliance expectations for wholesalers: Form 20B/21B licensees must diligently ensure that purchasers hold the requisite sales licence. The case underscores that supplying to unlicensed entities is a prosecutable breach under Section 18(a)(vi), punishable under Section 27(d), and may be pursued alongside graver offences against downstream actors.
Limitation in joint prosecutions: The application of Section 468(3) CrPC means that where a joint trial is permissible and includes an offence punishable beyond three years, limitation defences premised on lesser counts (e.g., two-year maxima) will fail. This curbs fragmented or tactical limitation challenges in supply-chain prosecutions.
Forum clarity: By reaffirming that Magistrates take cognizance and commit D&C Act cases to Sessions, the Court provides practical guidance across Karnataka. Registry and trial courts gain procedural certainty, reducing jurisdictional skirmishes and delays.
Transitional consistency under BNSS: Although the petition invoked Section 528 of the BNSS (analogous to inherent powers under Section 482 CrPC), the Court’s reliance on foundational CrPC principles (e.g., Section 193, committal) indicates continuity in core procedural architecture for special statute trials unless expressly altered by Parliament.

Complex Concepts Simplified

Section 18(a)(vi) D&C Act: Prohibits selling/stocking/exhibiting/distributing drugs except under and in accordance with a valid licence; breaching a licence condition (such as selling to an unlicensed person) is caught here.
Form 20B/21B licence conditions: Wholesale licensees must not sell to persons lacking the requisite licence to sell/stock/exhibit/distribute drugs. Violations attract Section 27(d) penalty.
Section 27(d) D&C Act: Penal provision (up to two years, among other consequences) for contraventions not covered by graver categories.
Section 27(b)(ii) D&C Act: Punishes certain violations of Section 18(c) (e.g., sale/stock without licence) with imprisonment that may extend to five years.
Section 468 CrPC (limitation): Bars cognizance for offences with punishment up to three years after a limitation period; but Section 468(3) says that if offences which may be tried together include a graver offence, the longest maximum governs limitation. Hence, a five-year maximum in a joint trial lifts the bar.
“Cognizance” vs “Trial”: Cognizance is the court’s acceptance of a case to proceed judicially; trial is the phase where evidence is recorded and guilt adjudicated. Under the D&C Act, Sessions Courts try offences, but Magistrates can (and usually must) first take cognizance and then commit cases to Sessions.
Section 21 D&C Act (Inspectors): Requires Gazette notification to appoint a person as an Inspector. According to this ruling, subsequent area assignment can be done by administrative transfer order without needing a fresh Gazette notification.
Section 32 D&C Act (prosecution and forum): Limits who may initiate prosecution (e.g., an Inspector) and mandates trial by Sessions; it does not permit Sessions to take direct cognizance unless another statute expressly so provides.
Section 193 CrPC (cognizance by Sessions): Sessions Courts cannot take cognizance as a court of original jurisdiction unless cases are committed by a Magistrate (unless another law says otherwise).
Inherent powers (Section 482 CrPC / Section 528 BNSS): Extraordinary jurisdiction to quash proceedings to prevent abuse of process or secure the ends of justice, used sparingly when legal bars or glaring infirmities exist. The Court found none here.

Critical Reflections

Textual balance in Section 21: The judgment reads Section 21(2) as accommodating area allocation via administrative orders after initial Gazette appointment under Section 21(1). Purists may argue “area” appears in Section 21(1), not 21(2). The Court’s approach, however, coheres with administrative practicality and the Bombay High Court’s purposive reading in Ghanshyam K. Zaveri. It is likely to be persuasive across jurisdictions focused on effective drug regulation.
Guardrails on Section 468(3): While the joint-trial rule justifiably prevents piecemeal limitation defences, courts must remain alert to artificial joinder. The statutory test is whether offences “may be tried together,” i.e., they are connected by the “same transaction” or otherwise fall within joinder provisions. Here, the supply chain nexus between Accused No. 2 (supplier) and Accused No. 1 (unlicensed dispenser) made joint trial plainly proper.
Scope of ruling: The Court decides threshold procedural objections and does not adjudicate the merits (e.g., whether Accused No. 2 in fact sold to an unlicensed person). Those factual issues remain for trial before the Sessions Court.

Conclusion

Vishwanath v. State of Karnataka settles three recurring process issues in Drugs and Cosmetics Act prosecutions:

Transfer orders validly assign jurisdictional areas to Drugs Inspectors previously appointed by Gazette; no fresh Gazette notification is necessary upon each transfer.
Limitation under Section 468 CrPC cannot be invoked where a joint trial properly includes a co-accused facing a higher maximum sentence (here, up to five years under Section 27(b)(ii)); Section 468(3) shifts the limitation reference to the graver offence.
Even though only Sessions Courts may try offences under Section 32(2) of the D&C Act, cognizance remains with the Magistrate, and committal under Section 193 CrPC is required absent an express statutory authorization for direct Sessions cognizance.

The judgment is significant for regulators and the pharmaceutical supply chain alike. It strengthens the enforceability of wholesale licence conditions, removes a procedural obstacle tied to inspector transfers, and clarifies the path of cognizance and committal. Together, these clarifications reduce litigation over technicalities and refocus attention on substantive compliance with the D&C Act — particularly the crucial duty of wholesalers to verify that purchasers hold the requisite licences before supplying drugs.