The Allahabad High Court has reaffirmed that before proceeding further or issuing a summoning order in prosecution under the Drugs and Cosmetics Act, 1940, the Magistrate must afford an opportunity of hearing to the accused. Relying on recent Supreme Court and High Court precedents, this rule is now binding on subordinate courts in Uttar Pradesh and serves as persuasive authority nationwide for ensuring due process in criminal proceedings.
Summary
| Category | Data |
|---|---|
| Case Name | NA528/1086/2025 of MS SUPER CURE BIOTECH PVT. LTD THRU. M.D. VIRESH KUMAR Vs STATE OF U.P. THRU. THE PRIN. SECY. HOME DEPTT. LKO. AND ANOTHER |
| CNR | UPHC020656772025 |
| Date of Registration | 27-08-2025 |
| Decision Date | 02-09-2025 |
| Disposal Nature | Allowed on merits |
| Judgment Author | Hon’ble Saurabh Lavania, J. |
| Court | Allahabad High Court, Lucknow Bench |
| Bench | Single Bench — Saurabh Lavania, J. |
| Precedent Value | Binding on subordinate courts in Uttar Pradesh; persuasive authority elsewhere |
| Overrules / Affirms | Affirms the requirement identified in Yash Tuteja (2024), Tarsem Lal (2024), Kushal Kumar Agarwal (2025), and Mohd. Muzayyin (2025) |
| Type of Law | Criminal procedure (procedural safeguard in summoning process under Drugs and Cosmetics Act, 1940 and BNSS, 2023) |
| Questions of Law | Whether a Magistrate is obligated to provide an opportunity of hearing to an accused before issuing a summoning order under the Drugs and Cosmetics Act, in light of BNSS and Supreme Court precedents. |
| Ratio Decidendi | The Court held that in view of the proviso to Section 223(1) of the BNSS, 2023, and the Supreme Court’s decisions in Yash Tuteja, Tarsem Lal, and Kushal Kumar Agarwal, as well as the decision in Mohd. Muzayyin, an opportunity of hearing must be afforded to the accused by the Magistrate before passing a summoning order. The failure to provide such an opportunity vitiates the proceedings and renders the summoning order unsustainable. The impugned summoning order was thus quashed, with directions to the Magistrate to reconsider the matter after giving the applicant an opportunity to be heard. |
| Judgments Relied Upon | Yash Tuteja v. Union of India, 2024 SCC OnLine SC 533; Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61; Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221; Mohd. Muzayyn v. State of U.P. and Another, 2025:AHC:65284 [Application U/S 528 BNSS No.9725 of 2025] |
| Logic / Jurisprudence / Authorities Relied Upon by the Court | BNSS Section 223(1) first proviso; Supreme Court and High Court precedents; principle of audi alteram partem (right to be heard) in criminal procedure. |
| Facts as Summarised by the Court | The applicant was summoned in a complaint case under Sections 17A, 18a(I), 22cca, 27(a) of the Drugs and Cosmetics Act, 1940 based on a cognizance and summoning order dated 15.10.2024 by the CJM, Unnao. The applicant challenged this order alleging that no opportunity of hearing had been given before the order was passed. |
| Citations | 2024 SCC OnLine SC 533; (2024) 7 SCC 61; 2025 SCC OnLine SC 1221; 2025:AHC:65284 |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in Uttar Pradesh |
| Persuasive For | Other High Courts, Supreme Court, and courts in matters dealing with summons in criminal complaints under the Drugs and Cosmetics Act or similar statutes |
| Follows | Yash Tuteja v. Union of India (2024 SCC OnLine SC 533); Tarsem Lal v. Enforcement Directorate ((2024) 7 SCC 61); Kushal Kumar Agarwal v. Directorate of Enforcement (2025 SCC OnLine SC 1221); Mohd. Muzayyin v. State of U.P. (2025:AHC:65284) |
What’s New / What Lawyers Should Note
- The judgment clarifies that before issuing a summoning order in complaint cases under the Drugs and Cosmetics Act, the Magistrate must provide an opportunity of hearing to the accused, as per Section 223(1) first proviso of BNSS, 2023.
- Lawyers should check whether such an opportunity was provided; if not, the summoning order is open to challenge and likely to be quashed on this ground.
- This procedural safeguard finds strong support in recent Supreme Court rulings, making it a robust ground for defending accused in similar criminal complaints.
- The judgment serves as a binding precedent in Uttar Pradesh and persuasive authority elsewhere.
- Counsel must consider this ruling when advising clients on the maintainability and validity of summoning orders in criminal complaints.
Summary of Legal Reasoning
The Court first considered the applicant’s grievance—that the Chief Judicial Magistrate, Unnao, had issued a summoning order without affording an opportunity of hearing. It relied on the first proviso to Section 223(1) of the BNSS, 2023, which embodies the principle that an accused must have a chance to be heard before cognizance is taken and summons issued. The Court analysed relevant Supreme Court decisions: Yash Tuteja, Tarsem Lal, and Kushal Kumar Agarwal, as well as the Allahabad High Court’s own decision in Mohd. Muzayyin, all of which confirm the necessity for such an opportunity at the pre-summoning stage. The Court concluded that the absence of this opportunity vitiates the proceedings, quashed the summoning order, and directed the Magistrate to consider the matter afresh after hearing the applicant.
Arguments by the Parties
Petitioner
- The summoning order was passed without granting an opportunity of hearing as required under the law.
- The right to audi alteram partem was not observed, violating procedural safeguards provided under BNSS and relevant precedents.
- Requested quashing of the complaint proceedings and the summoning order.
Respondent
- No specific arguments detailed in the judgment other than representation by learned A.G.A. and reliance on record.
Factual Background
The case arose from a criminal complaint (Complaint Case No. 333/2025) filed against Ms Super Cure Biotech Pvt. Ltd. under Sections 17A, 18a(I), 22cca, 27(a) of the Drugs and Cosmetics Act, 1940. The learned Chief Judicial Magistrate, Unnao, took cognizance and issued a summoning order on 15.10.2024 against the applicant. The applicant challenged this order before the Allahabad High Court on the ground that the Magistrate had not provided any opportunity of hearing to the accused before issuing the summons.
Statutory Analysis
The judgment primarily turns on the interpretation and application of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The provision mandates that before a Magistrate proceeds further—specifically, before issuing a summoning order—the accused must be given an opportunity to be heard. The court also referred to corresponding procedural protections recognized in recent Supreme Court decisions.
Procedural Innovations
The judgment directs subordinate courts to strictly comply with the procedural requirement of affording a hearing before the issue of summons in complaint cases under the Drugs and Cosmetics Act, as per Section 223(1) of BNSS. No further innovations are recorded.
Alert Indicators
- ✔ Precedent Followed – The judgment follows and reinforces existing Supreme Court and High Court precedents.
Citations
- Yash Tuteja v. Union of India, 2024 SCC OnLine SC 533
- Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61
- Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221
- Mohd. Muzayyin v. State of U.P. and Another, Neutral Citation No.2025:AHC:65284 [Application U/S 528 BNSS No.9725 of 2025]