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2014 DIGILAW 383 (CHH)

State of M. P. v. Durga Prasad

2014-11-11

CHANDRA BHUSHAN BAJPAI

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JUDGMENT : Chandra Bhushan Bajpai, J. 1. This appeal is directed against judgment dated 31.7.98 passed by Judicial Magistrate First Class, Rajnandgaon in Criminal Case No. 352/97. By the impugned judgment, the learned trial Court acquitted accused/respondents from the charges levelled against them under Section 27A (i) of the Drugs and Cosmetics Act, 1940 (for short 'the Act'). The, State has filed this criminal appeal under Section 378(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') after obtaining permission of this Court for leave to appeal under Section 378(3) of the Code. This Court on 12.5.99 granted leave to appeal and admitted the appeal for final consideration. 2. Being aggrieved by the judgment and finding of Judicial Magistrate First Class, Rajnandgaon, the appellant/State has filed this Criminal Appeal on the ground that the learned Judicial Magistrate First Class has ignored the fact that sanction was granted vide letter dated 21.01.93, hence it ought to have considered from the date of receipt of the report, i.e. 13.8.89. The trial Court has wrongly appreciated and accepted the date of grant of sanction from 21.1.93. The trial Court has unnecessarily given weightage to minor omission and contradiction and it ought to have considered this case under Section 27A of the Act. Hence, the judgment is illegal and bad in law and it deserves to be set aside. 3. As per case of prosecution, on 12.8.88, concerned Inspector seized article in question with due procedure of law. Thereafter it was sent for relevant chemical analysis vide report dated 03.7.89. The State after concerned analysis reported that in the sample of Himraj Sunder Hair Oil, acid value was more than the IS requirement. After completion of investigation, complaint was filed before Chief Judicial Magistrate, Rajnandgaon on 16.3.93. The respondents including other co-accused Ram Prasad, who died during the pendency of this appeal, charged for the offence under Section 27A(i)of the Act. The accused denied the charges and prayed for trial. 4. In order to prove the guilt of the accused/respondents, the prosecution has examined as many as 7 witnesses, Statement of the accused/respondents were recorded under Section 313 of the Code, wherein they denied the circumstances appearing against them, pleaded innocence and false implication in crime in question. The accused/respondents have also examined two defence witnesses, Ram Prasad (DW-1) and Jodhamal (DW-2) in their defence who supported the case of the accused/respondents. The accused/respondents have also examined two defence witnesses, Ram Prasad (DW-1) and Jodhamal (DW-2) in their defence who supported the case of the accused/respondents. 5. After providing opportunity of hearing to the parties, the learned trial Court acquitted the accused/respondents from the charges framed against them. 6. I have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 7. Learned counsel appearing on behalf of the State/appellant vehemently argued that the trial Court erred grossly by considering minor omissions and contradictions. Since the sanction was awarded lately, the period of limitation should be counted from the date of sanction. The prosecution has proved the case against the accused/respondents that in the seized article acid value was more the IS mark which is an offence under relevant provisions of the act and is punishable under Section 27A (i) of the Act itself. Hence, order of acquittal be set aside, the accused/respondents be convicted adequately for the offence proved against them. 8. Per contra, learned counsel for the accused/respondents submitted that limitation was the core issue before the trial Court and after this issue other parts of the evidence are material. The prosecution has failed to prove that it filed the complaint within the limitation as required, there was no application for condonation of delay for filing the complaint under the relevant provisions of the Act, hence the trial Court rightly acquitted, the accused/respondents and there is no scope for interference, hence, appeal may be dismissed. 9. Further supporting his argument, he placed reliance on M/s. Wheezal Laboratories Pvt. Ltd. and others Vs. State of M.P.1997 (1) C.Cr.J. (MP) 225 on the point that the offence was punishable for three years, complaint was barred by period limitation and there was no application on record for condonation of delay, Single Bench of High Court of Madhya Pradesh held that the prosecution of the accused persons not permissible. 10. After appreciating the arguments advanced on behalf of both the parties, I have perused the evidence adduced on behalf of the prosecution and defence before the trial Court. I have also examined the legal position for the presentation of the complaint within or beyond limitation and its effect and value over the facts. 11. Undisputedly, limitation was the core issue in the present case. I have also examined the legal position for the presentation of the complaint within or beyond limitation and its effect and value over the facts. 11. Undisputedly, limitation was the core issue in the present case. As per Section 27A(i) of the Act, offence is punishable up to 3 years along with fine part. There is no specific limitation prescribed under this Act for the presentation of the complaint before the competent Court of law. With this situation, general law is applicable for the case. For general law, there is Section 468(2)(c) of the Code which is for bar to taking cognizance after lapse of the period of limitation which provides three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. As per this general provision which is applicable in the facts of this case within three years charge sheet or the complaint, as the case may be, has to be filed before the competent Court and no Court shall take cognizance of an offence after the expiry of the period of limitation. There is one more provision under Section 473 of the; Code wherein any Court may take cognizance of the Act after the expiry of the period of limitation if it is satisfied on the facts and the circumstances of the case that delay has been properly explained or that is necessary to do in the interest of justice. In the present case, no application under Section 473 of the Code was ever filed before the trial Court for extension of period of limitation. With this, the trial Court held that presentation of the complaint was beyond the limitation. Learned counsel for the appellant has failed to explain as to why the concerned application was not filed on behalf of the complainant. Failing in filing such application may not make the complaint competent for taking cognizance even after limitation. If there was some departmental procedure in which certain time has been elapsed, even then the complainant may in addition to his complaint, file an application for extension of period of limitation and the Court may have passed the order after providing opportunity to the appellant as per law. If there was some departmental procedure in which certain time has been elapsed, even then the complainant may in addition to his complaint, file an application for extension of period of limitation and the Court may have passed the order after providing opportunity to the appellant as per law. But not filing any such application for condonation of delay or for extension of time for delay as required under Section 473 of the Code, the trial Court has rightly acquitted the accused/respondents merely on the point of limitation. 12. In the present case, the appellant failed to explain as to how and why the concerned application for extension of period of limitation was not filed before the trial Court. Beyond the period of limitation no Court shall take cognizance. The prosecution/appellant utterly failed to prove the core issue of limitation failing which I do not see any scope for interference as the complaint itself was barred by limitation, no any application filed alongwith the complaint or even throughout the trial for the extension of period of limitation. Upon considering the entire facts of this issue, I also agree with the cited case law M/s. Wheezal Laboratories Pvt. Ltd. (supra) which is applicable with the facts of this case. This cited case law was also discussed in the judgment of the trial Court. In the considered opinion of this Court, the trial Court has not committed any error while acquitting the accused/respondents for the charges levelled against them. Consequently, the appeal filed by the State/appellant is liable to be dismissed and is hereby dismissed. The accused/respondents are on bail, their bail bonds shall continue for further period of six months from today as per the requirement of Section 437A of the Code.