J KAMALA Vs. DRUG INSPECTOR WYNAD
HIGH COURT OF KERALA
DRUG INSPECTOR, WYNAD
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(1.) Scope, manner and extent of power of the court under S.173 of the Code of Criminal Procedure in taking cognizance of an offence after the period of limitation are the issues to be decided in this case. Petitioners are accused 1 to 4 in S.T.No.697 of 2000, on the file of the Judicial First Class Magistrate, Sulthan Bathery. The first respondent / complainant filed a complaint under S.32 pf the Drugs and Cosmetics Act, alleging that petitioners committed offence punishable under S.27(d) of the Act. Annexure I is the copy of the complaint. The allegation in the complaint is that petitioners 1 to 3 are partners of the fourth petitioner firm and are manufacturers of drugs. On 22.1.1996, the first respondent drew sample of the drug called Macknil batch No.ME 31 from M/s. Meenangadi Pharmacy and the same was despatched to Government Analyst Drug Testing Laboratory, Trivandrum. On analysis, it is informed that the sample is not of standard quality, as per report dated 26.2.1997. As per the label, the contents of the product is Magnesium Sulphate IP 40% WAV Glycerin IP sufficient quality. On analysis it was found that the content of Magnesium Sulphate in the sample is only 20.0189% WAV. This is seen from Annexures HI and IV. Petitioners filed an objection before the Magistrate stating that the complaint is time barred. It is their contention that the offence, even if proved, is punishable for a term not exceeding one year. Therefore, the complaint ought to have been filed within one year, in view of S.468(2)(b) of the Criminal Procedure Code, 1973. There is a delay of 75 days in filing the complaint. That objection was overruled by the Magistrate by a speaking order. It is also noticed that along with the complaint itself the complainant also requested for condoning the delay. So both the objection and the request were considered together. The court below found as follows:
"The complainant, has filed an objection to this petition. The reasons for the delay is explained therein. The report filed along with the complaint and the complaint also gives detailed explanation for the delay. According to the complainant, on 4.3.1997, his office received information that Maknill batch ME 31 is not of standard quality, by letter dated 26.2.97 of the Government Analyst. Thereupon an investigation was undertaken to determine the person from whom the drug was acquired. Hence on 12.3.1997, the test report and laboratory protocol was forwarded to the Meenangadi Pharmacy, from where the drug was purchased. The proprietor of that firm by his reply informed that the drug was purchased from M/s. Shine Agencies, Kannur on 19.1.96. Though complainant has tried to contact M/s. Shine Agencies, the letter was returned. Hence the services of Drugs Inspector Kannur was sought and on 13.10.1997 they replied stating that the drug was supplied by the 4th accused firm. The ownership of 4th accused firm was not available. It was also found that the Drugs Controller in his letter dated 18-10-1999 has not given any specific instruction regarding initiation of prosecution in (his matter. Therefore clarification was sought and on 29.4.2000. the drugs controller informed that action is warranted in this case also and thus the complaint was filed after obtaining the partnership details of 4th accused through drug control authorities in Tamil Nadu. In the report filed along with the complaint and in the objection it is sought to condone the delay caused in filing the complaint......" .
After considering the documents the court below found as follows:
"......I am of the opinion that there is no wilful latches or negligence on the part
of the complainant in filing (he complaint in time. Hence the delay caused in filing the complaint is condemned and this application for dismissal of complaint as time barred, is dismissed."
(2.) S.473 of the Code of Criminal Procedure reads as follows:
"473. Extension of period of limitation in certain cases: - Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence alter the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it necessary so to do in the interests of justice."
The Court's power to make cognizance of an offence alter the expiry of the period of limitation should be exercised judicially on well recognised principles. Power to condone delay is discretionary. Judicial discretion can be exercised only when the reason for condoning the delay is sufficiently explained and to do substantial justice. Delay cannot be condoned as a matter of routine without sufficient reasons, It is the duty of the Magistrate to state expressly the grounds by which he is satisfied that delay is properly explained or how he came to the conclusion to condone the delay in (he interest of justice. (See State of Maharashtra v.Shamdchandra Vinayak Dengre and Others 1995 (1) SCC 42 . Merely because process has been issued it cannot be presumed that delay has been condoned. The Supreme Court in State of H.P. v. Tara Dutt and another 2000 (1) SCC 230 held that the absence of non speaking order will not ipso facto vitiate the order condoning the delay unless the circumstances warrant. In that decision the Apex Court held as follows:
7. S.473 confers power on the court taking cognizance after the expiry of the period the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in S.468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the court taking cognizance, wherever the court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence ......
8. ... The said provision being an enabling provision, whenever a Magistrate
invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay. But without such an order being there or in the absence of such positive order, it cannot be said that the Magistrate has failed to exercise jurisdiction vested in law. It is no doubt true that in view of the fact that an offence under S.498 - A is an offence against the society and, therefore, in the matter of taking cognizance of the said offence, the Magistrate must liberally construe the question of limitation but all the same the Magistrate has to be satisfied, in case of period of limitation for taking cognizance under S.468(2)(c) having expired that the circumstances of the case require delay to be condoned and further the same must be manifest in the order of the Magistrate itself......"
In this case, a speaking order was passed after hearing both sides. It is true that when the nature of offence is trival and there is enormous delay, the Court will not exercise its power under S.473 to condone the delay. In the case of rash and negligent driving the Supreme Court held that after nine and a half years there is no point in condoning the delay. But it was also observed that if it is a heinous crime or the period sought for condonation is short, it is for the Court to decide on its discretion.
(3.) Once the discretionary power under S.473 is properly exercised, High Court will be reluctant to interfere in the matter. In this case, the allegation is that the drug was of substandard quality. If it is proved it is offence against society. This will affect the public interest and the Magistrate has given valid reasons for condoning the delay. Magistrate found that there are sufficient reasons to condone the delay and also found that in the interest of justice, he is satisfied that delay has to be condoned. In the circumstances, I am of the opinion that this is not a fit case to interfere or quash the order of the Magistrate under S.482 of the Code of Criminal Procedure.;
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