Crl.R.P Nos.276 and 282 of 2018

## **“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,** ## **1945** **CRL.REV.PET NO. 276 OF 2018** **FROM CRL.M.P.NO.3291/2017 IN C.C.NO.2/2014 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -III,KOZHIKODE** **REVISION PETITIONERS/PETITIONERS IN M.C./ACCUSED 4 AND 5 IN C.C:** - **1 MITESHBHAI J.PATEL B-702, STATUS, OPPO. DOORDARSHAN KENDRA,THALTEJ, AHMEDABAD.** - **2 ARVINDBAI B. PATEL 11, HATKESH SOCIETY,NEAR DARPAN SIX ROAD,NAVRANGPURA, AHEMDABAD. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 THE DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUG CONTROLLER CIVIL STATION, KOZHIKODE - 673 020.** - **2 STATE OF KERALA REPRESENTED BY THEPUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM -31. BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 23.11.2023, ALONG WITH Crl.Rev.Pet.282/2018, THE COURT ON 05.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.R.P Nos.276 and 282 of 2018 ## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,** ## **1945** **CRL.REV.PET NO. 282 OF 2018** **FROM CRL.M.P.NO.3292/2017 IN C.C.NO. 1/2014 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-III,KOZHIKODE** **REVISION PETITIONERS/PETITIONERS IN M.C/ACCUSED 4 AND 5 IN C.C:** **1 MITESHBHAI J.PATEL B- 702, STATUS, OPP. DOORDARSHAN KENDRA, THALTEJ, AHMEDABAD. 2 ARVINDBAI.B. PATEL 11, HATKESH SOCIETY, NEAR DARPAN SIX ROAD, NAVRANGPURA, AHEMDABAD. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 THE DRUG INSPECTOR OFFICE OF THE ASSISTANT DRUG CONTROLLER, CIVIL STATION, KOZHIKODE - 673 020. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION** **SMT.MAYA M.N- PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 23.11.2023, ALONG WITH Crl.Rev.Pet.276/2018, THE COURT ON 05.12.2023 DELIVERED THE FOLLOWING:** 3 Crl.R.P Nos.276 and 282 of 2018 **P.G. AJITHKUMAR, J. “C.R.”** **----------------------------------------------------------Crl.R.P.Nos.276 and 282 of 2018 ----------------------------------------------------------Dated this the 5[th] day of December, 2023** ## **O R D E R** Common questions are involved and therefore these revision petitions are disposed of by this common order. ## 1. Crl.R.P 276 of 2018 The petitioners are accused Nos.4 and 5 in C.C.No.2 of 2014 on the files of the Judicial Magistrate of the First ClassIII, Kozhikode. That case arose on a complaint filed by the 1[st] respondent-Health Inspector alleging commission of an offence punishable under Sections 27 (d) of the Drugs and Cosmetics Act,1940 for the violations of the provisions of Section 18(a)(i). On receipt of summons, the petitioners entered appearance. The court below proceeded to record evidence under Section 244 of the Code and framed a charge. Thereafter the petitioners filed Crl. M.P No.3291 of 2017 seeking to drop all further proceedings in the case since the cognizance of the offence was taken beyond the period of limitation prescribed by Section 468(2)(c) of the 4 Crl.R.P Nos.276 and 282 of 2018 Code of Criminal Procedure, 1973. 1.1. The petitioners contended that punishment prescribed for the offence being two years, the period of limitation for taking cognizance of the offence is three years, and having the sample been taken on 29.01.2010 and a report of analysis obtained on 30.03.2010, the complaint filed only on 03.07.2013 was beyond period of limitation. Therefore the proceedings was sought to be dropped. 1.2. A written objection was filed by the Public Prosecutor. It was contended that the court had ample power to condone the delay under Section 473 of the Code. The further contention was that the 1st accused being a Company, its constitutional particulars were necessary to file complaint, which could be obtained only on 09.05.2013, and therefore there was no delay in filing the complaint. 2. Crl.R.P 282 of 2018: Accused No.4 and 5 in C.C.No.1 of 2014 on the files of the Judicial Magistrate of the First Class– III, Kozhikode are the petitioners. On 29.01.2010, samples of medicines were drawn from City Medicals, Kozhikode. Report from the Drug Analyst was obtained on 09.04.2010. The 5 ## Crl.R.P Nos.276 and 282 of 2018 medicines were not of prescribed standard. Hence, the complaint was filed on 24.06.2013. The offence alleged against the petitioners is punishable under Section 27(d) of the Drugs and Cosmetics Act, for which the maximum punishment prescribed is imprisonment for two years and also fine. Stating that the period of limitation for filing the complaint being three years as per Section 468(2)(c) of the Code, and the complaint was filed after that period, the petitioners sought to drop the proceedings against them. 2.1. The learned Public Prosecutor has filed a written objection. It was contended that the court had ample power to condone the delay in exercise of the powers under Section 473 of the Code. The further contention was that the 1[st] accused being a Company, its constitutional particulars were necessary to file the complaint and such particulars could be collected only on 09.05.2013. Accordingly, the respondent took the view that there was no delay in filing the complaint. Crl.R.P.Nos.276 and 282 of 2018: 3. The court below after considering the matter in detail took the view in both the cases that there was no 6 Crl.R.P Nos.276 and 282 of 2018 delay in filing the complaints. It was held that on getting the report of examination from the Drug Analyst, details of the manufacturer/supplier were to be collected and therefore the complainant issued notice under Section 18A of the Drugs and Cosmetics Act. The details were furnished by the City Medicals. As contemplated in Section 25(2) of the Drugs and Cosmetics Act, a copy of Form -13 report along with a sample was sent to the 1[st] accused-company. In terms of Section 25(3) of the Drugs and Cosmetics Act, a period of 28 days ought to be given to the 1[st] accused for it to avail the opportunity of getting the sample examined in the Central Drug Laboratory. It was further noticed by the court below that details of the constitutional particulars of the 1st accused-Company were necessary since the persons responsible for the affairs of the company are also liable to be prosecuted as per Section 31 of the Drugs and Cosmetics Act. If the said period was also excluded, there was no delay and accordingly the court below dismissed the petition filed in both the cases. 4. The learned counsel appearing for the petitioners 7 ## Crl.R.P Nos.276 and 282 of 2018 would submit that for two reasons the prosecution is invalid. The first is that the cognizance was taken beyond the period of limitation prescribed by Section 468(2)(c) of the Code. The second is that the court below issued summons to the petitioners who are residing beyond the territorial jurisdiction of the said court, without complying with the mandatory requirement of an inquiry as provided in Section 202 of the Code. It is submitted by the learned counsel that even if the date of receipt of the report of Analyst is taken as the date of commission of the offence, complaints in both cases were filed beyond the period of limitation. 5. It is the settled law that the date of filing of the complaint is the date and not the date of taking cognizance, to be reckoned for computing the period of limitation (See: **Sarah Mathew and others v. Institute of Cardio Vascular Diseases by its Director K.M Cherian and others [AIR 2014 SC 448]** ). 6. There is not much dispute regarding the facts. The complaints were filed before the court below, not within three years of the date of receipt of the report from Drug 8 ## Crl.R.P Nos.276 and 282 of 2018 Analyst. In Crl.R.P.No.276 of 2018, the report was received on 30.03.2010 and the complaint was submitted on 03.07.2013. In Crl.R.P.No.282 of 2018, the report was received on 09.04.2010 and the complaint was submitted on 24.06.2013. So both complaints were filed beyond the period of three years, which is the period of limitation as per Section 468(2)(c) of the Code. The question is whether any period is liable to be excluded in terms of the provisions of Section 470(3) of the Code or that the court ought to have condoned the delay in the interest of justice. 7. The learned counsel for the petitioners by placing reliance on the **Agron Remedies Pvt. Ltd.(M/s.) and others v. Drug Inspector, Vanchiyoor and Ors[2022 (2 KLT 728]** contended that the court below did not specifically condone the delay or order any period to be excluded and therefore the prosecution is illegal. It was observed that only on receipt of the report of the Drug Analyst, it could be understood that there was an offence and therefore, the complaint ought to be filed within three years of the date of receipt of the report. It was after observing that if there was 9 Crl.R.P Nos.276 and 282 of 2018 sufficient and satisfactory explanation for the delay, the delay should have been condoned before taking cognizance of the offence and once cognizance is taken on a time barred complaint, the court is prohibited from entertaining an application for condonation of delay, it was held that the cognizance taken beyond the period of limitation without a specific order for condonation of the delay was illegal. The accused were accordingly discharged by quashing the proceedings. 8. In the above case, apart from the bar of limitation, another reason to quash the proceedings was that no inquiry under Section 202 of the Code was conducted before issuing summons. It is seen that the complaint therein had no contention concerning the exclusion of time under Section 470(3) of the Code. Here the respondent contends that the period taken for enabling the accused to get a report from the Central Drug Laboratory as provided in Section 25(3) and (4) of the Drugs and Cosmetics Act was liable to be excluded from the period of Limitation. The further contention of the respondent is that a considerable 10 ## Crl.R.P Nos.276 and 282 of 2018 period was taken to gather the constitutional particulars of the 1[st] accused company which operates in the State of Gujarat and for that reason also the delay in filing the complaint was liable to be condoned in the interest of justice. Viewed so, the facts of **Agron Remedies Pvt. Ltd** (supra) and these cases are different. Therefore the contentions of the petitioners are to be considered in the light of the submissions made by the learned counsel on either side. 9. As stated, the respondent needed to have given notice along with a copy of the report to the City Medicals, and also the 1[st] accused company. A notice to the 1st accused company could be given by the 2nd respondent only after he got its details from the seller of the medicine, City Medicals. Under Section 470(3) of the Code, the period taken for giving notice of prosecution is liable to be excluded. Therefore the period taken for giving notice to the City Medicals as well as the 1[st] accused is liable to be excluded from the period of limitation. 10. The learned Additional Director General of 11 ## Crl.R.P Nos.276 and 282 of 2018 Prosecution would submit that this is a case where the prosecution was initiated regarding the distribution of substandard medicines and therefore it involves the interest of the public at large. When the question is condonation of delay in such a matter, the provision applicable is the second limb of the second part of Section 473 of the Code and the court ought to decide whether or not to condone the delay in the interest of justice. The learned counsel placed reliance in this regard on **Arun Vyas and another v. Anita Vyas [1999(4) SCC 690].** Section 473 of the Code reads: “473. Extension of period of limitation in certain cases: Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of 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 or that it is necessary so to do in the interests of justice.” 11. It was held in **Arun Vyas** referred to above that the second limb of the second part of Section 473 of the Code empowers a court to take cognizance of an offence if the Court is satisfied on the facts and in the circumstances of the case that it is necessary to do so in the interest of 12 Crl.R.P Nos.276 and 282 of 2018 justice. This principle was reiterated and explained by a Constitution Bench of the Apex Court in **Sarah Mathew and** ## **others v. Institute of Cardio Vascular Diseases by its Director K.M.Cherian and others[AIR 2014 SC 448].** 12. It was held that Section 473 of the Code has a non-obstante clause, which means that it has an overriding effect on Section 468. The Apex Court observed that there is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the applicant to satisfy the Court that there was sufficient cause for condonation of delay, whereas, Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether, justice requires to ignore such delay. These observations indicate the scope of Section 473 of the Code. 13. In the above context, the learned counsel for the petitioners submitted that the court below did not consider the question of limitation before taking cognizance and therefore it is well within the right of the petitioners to raise 13 ## Crl.R.P Nos.276 and 282 of 2018 that question at any stage. The learned counsel in that regard placed reliance on **Thomaskutty v. State of kerala [2020(4)KLT 815]** . In that case, this Court held that the question of limitation can be raised by the accused at any stage of the proceedings. It was so held in the light of the law laid down by the Apex Court in **State of Maharashtra** ## **v. Sharadhchandra Vinayak Dongre and Others [AIR** **1995 SC 231]** that the accused has a right of being heard before the court condoning the delay in taking cognizance of an offence. 14. In **Thomaskutty** (supra) the accused upon receipt of summons entered appearance and filed a petition to drop the proceedings on the ground of delay. It was before recording the plea of the accused or framing the charges. In that context, this court held that the court was bound to consider the question of delay. If no decision was taken by the court on the question of delay after giving the accused an opportunity of being heard, the question of delay can be raised by the accused even at the final stage of the proceedings. 14 Crl.R.P Nos.276 and 282 of 2018 ## 15. In **Cheminova India Ltd and Ors. v. State of Punjab** **[AIR 2021 SC 3701]** the Apex court considered the effect of the failure to conduct an inquiry under Section 202 of the Code before issuing summons to an accused who is residing beyond the territorial limits of the court in a case arose on a complaint filed by a public servant. It was held that with regard to the procedure contemplated under Section 202 of the Code, the same is to be viewed, keeping in mind that the complainant is a public servant who has filed the complaint in discharge of his official duty. The legislature in its wisdom has itself placed the public servant on a different pedestal, as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. The object of holding an inquiry/investigation before taking cognizance, in cases where the accused resides outside the territorial jurisdiction of such Magistrate, is to ensure that innocents are not harassed unnecessarily. By virtue of the proviso to Section 200 of the Code, the Magistrate, while taking cognizance, need not record the statement on oath of such public servant, who has filed the complaint in the discharge of his 15 ## Crl.R.P Nos.276 and 282 of 2018 official duty. The Apex Court assigned one more reason to hold the inquiry not mandatory. That, under Section 293 of the Code, a report of the Government Scientific Expert is, _per se,_ admissible in evidence. Accordingly, the Apex Court held that when a public servant has filed a complaint, enclosing several documents including reports of the Government Laboratory, it is always open for the Magistrate to issue process on such complaint without holding an inquiry under Section 202 of the Code. In the absence of showing any prejudice caused to the accused, particularly, such a ground is not available to hold the proceedings illegal. 16. When the law is explained so by the Apex court, the observations in **Agron Remedies** (supra) that the proceedings would be bad in the eye of law for want of an inquiry under Section 202 of the Code cannot be harped upon by the petitioners to assail the prosecution. 17. What emerges from the above is that: i) The date of filing of the complaint/report is the date and not the date of taking cognizance, to be reckoned for computing the period of limitation ii) A Magistrate, taking cognizance on a complaint filed by a public servant in the discharge of his official duty 16 Crl.R.P Nos.276 and 282 of 2018 need not record the statement on oath before issuing process. iii) When a public servant has filed a complaint, it is always open for the Magistrate to issue process on such complaint without holding an inquiry under Section 202 of the Code. In the absence of showing any prejudice to the accused, failure to conduct an inquiry under Section 202 of the Code does not make the proceedings illegal. iv) If the court took cognizance of the offence after the period of limitation without hearing the accused, the question of delay can be raised by the accused at any stage; even at the final stage of the proceedings v) Under Section 470(3) of the Code, the period taken for giving notice of prosecution is liable to be excluded from the period of limitation. vi) The second limb of the second part of Section 473 of the Code empowers a court to take cognizance of an offence if the Court is satisfied on the facts and in the circumstances of the case that it is necessary to do so in the interest of justice. 18. The petitions for dropping the proceedings were filed although after the commencement of the trial in both cases, the court below as per the impugned orders decided the question and held that there was no delay in filing the complaints. It was held so after excluding the period taken for giving notice of prosecution and condoning the delay, the 17 Crl.R.P Nos.276 and 282 of 2018 reasons for which are sound and sufficient. The view taken by the court below is correct and legal in the light of the statutory provisions and the propositions of law mentioned above. Therefore, I am of the view that the impugned orders are not liable to be interfered with on the ground of error, illegality or impropriety. These revision petitions therefore fail. The revision petitions are dismissed. Sd/- **P.G. AJITHKUMAR, JUDGE** PV/dkr