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2014 DIGILAW 64 (GUJ)

State of Gujarat on Behalf of Makwana Natvarlal Danabhai Dru v. Pravinbhai Jethalal Thakkar Sharda Bhuvan NR Vrundavan Nag

2014-01-17

S.H.VORA

body2014
ORDER : S.H. Vora, J. Issue raised for consideration in present application filed under Section 5 of the Limitation Act, 1963, is for condonation of delay of 1927 days in filing captioned revision application by the State of Gujarat, which occasioned for the sufficient cause or not. 2. Briefly stated, the State has filed a complaint against the accused for the offence committed under sections 18(a)(i)(c), 18(a)(27)(b)(ii), 27(d) and 28 of the Drug and Cosmetic Act, 1940 (for short "the Act"). In the said complaint, the summons were issued and served upon the accused. According to the State, the accused persons gave an application on 31.12.2013 vide Exh.26 to consolidate hearing of Criminal Case No.2108 of 2000 with Criminal Case No.1692 of 2002. As the complainant did not remain present, the impugned complaint being Criminal Case No.1692 of 2002 came to be dismissed on 17.7.2006. 3. Heard the submissions of learned APP Ms. Jhaveri for the State and learned advocate Mr. Qureshi for the opponent. 4. According to learned APP Ms. Jhaveri, delay caused in preferring captioned revision application is due to the fact that the Drug Inspector Mr. N.D. Makwana filed Criminal Case No.1692 of 2002 under the Act against the present opponent. Pending hearing of the said complaint, one Mr. T.L. Patel, Drug Inspector also filed a complaint before the Bhuj Taluka Police Station being C.R. No.219 of 2000 under the Indian Penal Code and in the said case, charge sheet was filed and case came to be registered being Criminal Case No.2108 of 2000. According to learned APP, as both the cases were against the same accused i.e. present opponent herein, the accused gave an application to hear both the cases together. It is stated that both the matters were listed together before the learned JMFC on several occasions and therefore, the authority remained under impression that both the aforementioned cases would be heard together. It is further stated by learned APP that one officer Mr. T.L. Patel inquired about Criminal Case No.1692 of 2002 on 17.7.2011 from the concerned Public Prosecutor with regard to the status of the said case. In reply, the Public Prosecutor informed that the case has already been dismissed in the year 2006. Upon such reply, the authority applied for certified copy of order dated 17.7.2006 on 1.10.2011 and the same was received on 17.10.2011. In reply, the Public Prosecutor informed that the case has already been dismissed in the year 2006. Upon such reply, the authority applied for certified copy of order dated 17.7.2006 on 1.10.2011 and the same was received on 17.10.2011. Therefore, delay of 1927 days has been caused. 5. Per contra, learned advocate Mr. Qureshi filed affidavit in reply on behalf of the opponent and submitted that inordinate delay of 1927 days has been caused in preferring Criminal Revision Application and the reasons/grounds shown in the application and also furnished by way of supporting affidavit are neither satisfactory nor sufficient explanation to condone the delay. It is also stated by the opponent that Criminal Revision Application is filed on 24.1.2013 and there is no explanation whatsoever is forthcoming for the period from 17.7.2006 till filing of the application for condonation of delay i.e. on 24.1.2013. In support of his submissions, he has relied upon decision rendered by the Hon'ble Apex Court in Esha Bhattacharjee v. M.G. Commit Raghunathpur Nafar Acad and another delivered in Civil Appeal No.8183-8184 of 2013. 6. Before merit is considered, it is worthwhile to reproduce observations made by the Hon'ble Apex Court in case of Office of Chief Post Master General & Ors. v. Living Media India Ltd. & Anr., reported in AIR 2012 Supreme Court 1506, more particularly para 12 and 13 which read as under : "(12) It is not in dispute that the persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona-fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona-fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. (13) In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona-fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay." 7. On the aspect of exercising discretion under Section 5 of the Limitation Act for condonation of delay, there is a long delay of 1263 days and therefore, it cannot be said to be a delay for short period. In the catena of decisions, it is well settled that there is delay for short period, the Court may take lenient view to condone the delay, but if the delay is for a long period, strict approach is called for in exercise of discretion of power under Section 5 of the Limitation Act. 8. In the catena of decisions, it is well settled that there is delay for short period, the Court may take lenient view to condone the delay, but if the delay is for a long period, strict approach is called for in exercise of discretion of power under Section 5 of the Limitation Act. 8. The words "sufficient cause for not making the application within the period of limitation" should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case and type of the case. The word "sufficient cause" in Section 5 of the Limitation Act needs a liberal construction so as to advance substantial justice when the delay is not on account of any dilatory tactics, want of bona fides or deliberate inaction on the part of the applicant. In nut shell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation. 9. The liberal construction of expression "sufficient cause" is indicated to advance substantial justice which itself presupposes no negligence and/or no inaction on the part of the applicant. The expression "sufficient cause" implies the presence of legal and adequate reasons as may be necessary to answer the purpose intended. The sufficient cause should be such as it would be persuade the Court to treat the delay as an excusable one. The applicant invoking discretionary powers of Court under Section 5 of the Limitation Act should show that besides acting bona fide, it had taken all possible steps within its power and control to approach the Court without any unnecessary delay. In other words, in order to give liberal construction to the expression "sufficient cause", it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. Needless to say that the law of Limitation is a substantive law and has definite consequences on the right and obligation of the party to arise. Once a valuable right has accrued in favour of one party, as a result of the failure of the other party to explain the delay by showing sufficient cause and on its own conduct, it will be unreasonable to take away such right on the mere asking of the applicant, particularly, when the delay is directly result of negligence, default or inaction of that party. The Court is required to give or impart justice to both the sides equally. In case, a party throughout remains negligent or careless in persuading the legal remedy/right then it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law. 10. If we examined the averments made in the application, then it seems that the applicant has not stated true facts, because there is no explanation as to what authority did during the period between the year 2006 and 2011 with regard to the said criminal case. Not only that though the authority received certified copy on 17.10.2011, Criminal Revision Application came to be filed on 24.1.2013, for which no sufficient explanation is given by the State except as stated in para 3 of the application. In para 3 of the application, the State tried to point out as to how file moved from one table/department to another table/ department, but if we look at the time gap between each process, there is no justifiable explanation as to the delay caused during the intervening period. This Court is of the considered opinion that the conduct of the applicant do not exhibit normal behaviour of a common prudent person and the delay caused could have been avoided by the applicant, if acted with normal care and caution. There is nothing on record to show as to any action or steps taken by the applicant, can be considered as 'sufficient cause' in preferring captioned revision application. 11. So, in light of observation recorded by the Hon'ble Apex Court in case of Office of Chief Post Master General & Ors. (Supra) and Esha Bhattacharjee (supra), no case is made out to accept the application filed under Section 5 of the Limitation Act, 1963. Therefore, present application stands dismissed. Rule is discharged. 12. Consequently dismissal of the Criminal Misc. Application, Criminal Revision Application No.64 of 2013 also stands disposed. Application dismissed.