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Drugs Inspector Vs. Chimanlal and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal Nos. 259 and 389 of 1962
Judge
Reported inAIR1968MP238; 1968CriLJ1561; 1968MPLJ489
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 417(3); Drugs Act, 1940 - Sections 18, 22, 23 and 25(3)
AppellantDrugs Inspector
RespondentChimanlal and Co. and ors.
Appellant AdvocateBalwantsingh, Govt. Adv.
Respondent AdvocateG.L. Oza, Adv.
DispositionAppeal dismissed
Cases ReferredSee Jamuna Singh v. Bhadai Shah
Excerpt:
- - even so the magistrate taking cognizance of offences upon complaints made by the public servant or the court concerned may, under sections 202 and 203 of the code, postpone issue of process for attendance of the person complained against, direct an enquiry o' investigation and even dismiss them summarily if in his judgment there is no sufficient ground for proceeding. in view of these considerations, except in the case of a police report, a public servant instituting a prosecution in the discharge of his duty as such public servant must be regarded as a complainant and the allegations made by him for taking action against the person complained against must likewise be regarded as a complaint. 26 of 1955 was to give to a private person a right of appeal, who had before that.....pandey, j.1. this case comes before us on a reference made by newaskar and sen jj. who found themselves unable to concur in the view expressed in the following observations made by another division bench of this court in state v. daulatsingh, air 1957 madh pra 72.'there are two answers to this contention. the present application for leave to appeal and the proposed appeal are by the state and not by the forest ranger, the complainant, secondly, sub-section (3) of section 417, criminal procedure code, confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not upon the complaint of a public servant or of a court. the prosecution on the complaint of a court or of a public servant acting in the discharge of his official duties being one.....
Judgment:

Pandey, J.

1. This case comes before us on a reference made by Newaskar and Sen JJ. who found themselves unable to concur in the view expressed in the following observations made by another Division Bench of this court in State v. Daulatsingh, AIR 1957 Madh Pra 72.

'There are two answers to this contention. The present application for leave to appeal and the proposed appeal are by the State and not by the Forest Ranger, the complainant, Secondly, Sub-section (3) of Section 417, Criminal Procedure Code, confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not upon the complaint of a public servant or of a court. The prosecution on the complaint of a Court or of a public servant acting in the discharge of his official duties being one by the State, and the State having the right of appeal in any case under Section 417 (1), Criminal Procedure Code, the words 'complaint' and 'complainant' in Sub-section (3) can refer only to a private complaint and to a private complainant.'

2. The facts of the case so far as they are necessary for this reference may be shortly stated. In virtue of the powers conferred upon the Drugs Inspector under Section 32 of the Drugs Act, 1940, he instituted, by means of a complaint filed by him, a prosecution against the respondents for contravening the provisions of Section 18 of that Act and thereby committing offences punishable under Section 27 thereof. The respondents, who had been convicted and sentenced to pay fines for the offences committed by them, were acquitted in appeal. The Drugs Inspector then appealed against the acquittal after applying for, and obtaining, special leave so to do under Sub-section (3) of Section 417 of the Code of Criminal Procedure. When the appeal came up for hearing before Newaskar and Sen JJ. the respondents raised a preliminary objection grounded upon the observations reproduced earlier that the special leave obtained in this case could not have been given to the Drugs Inspector, who, being a public servant, had filed the complaint in the discharge of his duty as a public servant Thereupon, as indicated earlier, Newaskar and Sen JJ. made this reference.

3. We may state at the outset that in AIR 1957 Madh Pra 72 (Supra) the application for special leave under Sub-section (3) of Section 417 of the Code wan made by the State itself, Since, as provided by Sub-section (1) of Section 417 of the Code, the State could directly appeal against acquittal 'in any case' including a case instituted upon a complaint, without being obliged to obtain special leave, the application could be dismissed on that short ground and it was not necessary to consider whether a public servant, who had filed a complaint in the discharge of his duty as a public servant, was entitled to apply for special leave under Sub-section (3) of Section 417 of the Code. Even so, since the question arises directly and is of general importance, we proceed to consider it.

4. Section 417 of the Code reads;

'(1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.

(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(4) No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.

(5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).'

It is clear from Sub-section (3) that the complainant is entitled to appeal against 'the acquittal in any case instituted upon complaint' only if he has obtained special leave to do so. It is no doubt true that, under Sub-section (1), the State may also appeal against 'the acquittal 'in any case' including a case instituted upon complaint. However, the right of the State to appeal against the acquittal in a case instituted upon complaint is, as provided by Sub-section (5), subject to one limitation. Once an application for special leave has been made by the complainant and refused by the High Court, no appeal against the acquittal will He even at the instance of the State. The basis of this restriction appears to be that the right of appeal against the acquittal recorded in a case instituted upon complaint should not be exercisable at all once the High Court has examined it and not found it a fit one for grant of special leave.

5. Sub-section (1) of Section 190 of the Code, which provides for three wavs in which cognizance of offences may be taken by Magistrates, reads

'190 (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.'

As the opening words of the sub-section postulate, this general power is subject to restrictions such as those enacted in Sections 195, 196, 196A, 197 198 and 199 of the Code. Further, by virtue of Sub-section (2) of section and Sub-section (2) of Section 5 of the Code, this provision is also subject to special enactments providing for initiation of proceedings for offences created thereunder. Exceptions apart, generally speaking a Magistrate may take cognizance of offences upon receiving a complaint, or upon a report in writing made by a police officer, or upon information received from a person other than a police officer or upon his own knowledge or suspicion.

6. The word 'complaint'' as defined in Clause (h) of Section 4(1) of the Code means:

'Allegation made orally or in writing to a Magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.'

A complaint, which falls within this definition, does not cease to be such merely because it is made by a public servant in the discharge of his duty as a public servant. On the other hand. Section 195 of the Code forbids cognizance being taken of certain offences therein specified except upon a complaint made in writing by the public servant or the Court concerned. Even apart from this section, there are special statutes which enact that cognizance of certain offences punishable thereunder cannot be taken except upon a complaint made by the authority therein named. In all these cases, the public servant, the Court and the named authority are regarded as complainants initiating prosecution upon complaints made by them So, Section 200 occurring in Chapter VI which deals with complaints to Magistrates, provides;

'A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided as follows:-- (aa) When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;'

It is obvious that, but for the special exemption enacted in proviso (aa) for purposes of Section 200 it would have been necessary to examine at once the public servant or the Court concerned. Even so the Magistrate taking cognizance of offences upon complaints made by the public servant or the Court concerned may, under Sections 202 and 203 of the Code, postpone issue of process for attendance of the person complained against, direct an enquiry o' investigation and even dismiss them summarily if in his judgment there is no sufficient ground for proceeding. In Section 250 of the Code, we find the expression 'in any case instituted upon complaint' which may be contrasted with 'in any case instituted otherwise than upon complaint' occurring in Section 249 of the Code. It may be mentioned here that, in all cases instituted upon complaint, the complainant is amenable to action under Section 250 of the Code. Only the police officer who makes a police report, is exempted from the operation of that section because he should not be hampered in the performance of his duty by the fear of action being taken against him under that section: Mahomad Meera v. Dattatraya Balaji, ILR (19461 Bom 908 = (AIR 1947 Born 36) Finally, all cases instituted upon complaints, irrespective of whether they are filed by public servants of Courts or private persons, are dealt with alike in accordance with the procedure indicated by either Section 207 or Section 251 of the Code. In view of these considerations, except in the case of a police report, a public servant instituting a prosecution in the discharge of his duty as such public servant must be regarded as a complainant and the allegations made by him for taking action against the person complained against must likewise be regarded as a complaint.

7. The question before us is whether in Sub-section (3) of Section 417 of the Code, a narrower meaning is ascribable to the words 'complaint' and 'Complainant' in the sense suggested by the observations quoted in the opening paragraph. In the first place, there is a presumption that in a given statute the same words, are used in the same meaning in Shamrao Vishnu Parulekar v. District Magistrate, Thana, 1956 SCR 644 at p 649 = (AIR 1957 SC 23 at p. 26), the Supreme Court quoted with approval the following passage from Maxwell's Interpretation of Statutes. 10th Edition, page 522:

'It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.'

A word used in one part of an Act ought not to be construed in a sense different from that which it bears in another part of the Act unless sufficient reason can be assigned for taking that view Again, the word 'complaint' has been defined in the interpretation Clause (h) occurring in Section 4(1) of the Code When the Legislature has defined the meaning of the word, it has expressed most authoritatively its intent and this internal legislative construction must be accepted unless the subject or context makes it necessary to depart from that meaning. So. In Vanguard Fire and General Insurance Co. Ltd. v. Fraser and Ross, (1960) 3 SCR 857 at p. 863 = (AIR 1960 SC 971 at p. 975), the Supreme Court stated:

'Therefore in finding out the meaning of the word 'insurer' in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely unless there is anything repugnant in the subject or context. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.'

In the light of these principles of construction, we have examined the language of Sub-section (3) of Section 417 of the Code. Apart from the consideration that the word 'any' in the expression ''in any case instituted upon complaint' means 'each and every' we do not find anything either in the subject or context which makes it necessary for us to depart from the meaning given to the word 'complaint' by Clause (h) of Section 4(1) of the Code. This is also the view taken in Prasannachary v. Chikkapinachari. AIR 1959 Mys 106. It is no doubt possible for a public servant, who has instituted a prosecution by lodging a complaint, to make an endeavour to misuse the right of appeal but we do not consider that to be a sufficient reason for limiting the statutory meaning of the word 'complaint' so as to exclude from the purview of Sub-section (3) of Section 417 all complaints other than those made by private complainants I may add that, in such cases the need for having to apply for, and obtain from the High Court, special leave to appeal against acquittal is a sufficient safeguard against abuse of this right of appeal. I also think that this additional right of appeal has been cautiously given to the complainant to subserve special interests in cases in which the State Government is disinclined to prefer an appeal against acquittal.

8. Having regard to the considerations set out in the foregoing paragraphs, I am of opinion that Sub-section (3) of Section 417 of the Code applies to all acquittals recorded in cases instituted upon complaints, including those instituted by public servants in the discharge of their duty as public servants and such public servants are competent to apply for, and obtain, special leave to appeal against acquittal recorded in such cases. This, I may add, receives some support from the conclusions reached in Udit Narayan v. Ramrup, AIR 1957 Pat 687, Raja Ram v. Ram Achal. AIR 1962 All 6, and State of Uttar Pradesh v. Maiku Baldeo. AIR 1963 All 486. I would, therefore answer this reference accordingly

Dixit, C.J.

9. I regret I do not find myself in agreement with the opinion recorded by my learned brother --Pandey J. I adhere to the view expressed by me in AIR 1957 Madh Pra 72 that a prosecution instituted on a complaint of a court or a public servant acting in the discharge of its or his official duties is a prosecution by the State and, therefore, the Court or the public servant filing the complaint under a statutory provision is not entitled to apply for leave to appeal under Section 417(3) Criminal Procedure Code. In the case of AIR 1957 Madh Pra 72 (supra), the application under Section 417(3), Cr. P. C. was no doubt filed on behalf of the State, but it was through the Range Forest Officer who had filed a complaint in respect of offences under Section 26(f) and (h) of the Madhya Bharat forest Act, 1950. In order to understand correctly the effect of that decision, it is necessary to bear in mind that in that case what was urged on behalf of the accused person was that the proposed appeal being on behalf of the State it could only be filed under Section 417(1) Cr. P. C. by the Public Prosecutor under the directions of the State Government, and that this not having been done, the application under Section 417(3) Cr. P. C was incompetent. This contention did not raise the issue whether the State Government could appeal against acquittal in any case including a case instituted upon a complaint even when the complainant had not applied for leave to appeal under Section 417 (3).

The above contention raised on behalf of the accused was upheld in the case of Daulatsingh, AIR 1957 Madh Pra 72 (Supra). In that case, the important contention that was pressed on behalf of the complainant, the Range Forest Officer was that even if the State could have filed an appeal under Section 417(1), yet he, as a complainant, had a right to apply for leave to appeal under Section 417(3) Cr. P. C. This contention was overruled on the reasoning that prosecution, when instituted upon a complaint made by a public servant or a court acting in the discharge of his or its official duties, was a prosecution by the State and not a prosecution by a private person, and that having regard to the history of the amendment made in Section 417 of the Code by Act No. 26 of 1955, Section 417(3) must be construed as conferring a right of appeal on the complainant in a case instituted upon a complaint of a private person and not upon the complaint of a public servant or of a court. It is, therefore, erroneous to think that the view expressed in AIR 1957 Madh Pra 72 (supra) was obiter.

10. In the construction of Section 417 (3) Cr. P. C., general considerations as to the scope and effect of Sections 190, 200, 249 and 250 of the Code are wholly irrelevant. The question whether when under a statutory provision the court or a public servant is required to file a complaint for initiation of a prosecution, such a case can be regarded as one instituted upon a complaint for the purposes of Section 417 (3) turns solely on the meaning of the word 'complaint'. There is no doubt that the word 'complaint' has been defined in Section 4(1) (h) Cr. P. C. as meaning 'the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer'. But, as Section 4 of the Code itself says at the very beginning, the 'words and expressions' detailed therein shall have the meanings mentioned therein 'unless a different intention appears from the subject or context'. Therefore, the meaning to be given to the word 'complaint', as used in the provisions of the Code, would ordinarily be that given in the definition clause. But this is not a rigid rule. It can be varied where the subject or context of the provision makes it difficult to read the word 'complaint' in the sense given in the definition clause. In (1960) 3 SCR 857 : (AIR 1960 SC 971) the Supreme Court no doubt said that the meaning of a word used in various sections of an Act would ordinarily be that given to it in the definition clause. But at the same time the Supreme Court emphasized that 'this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context.' The Supreme Court, further pointed out that:

'In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.'

11. If it is borne in mind that, when a public servant or a court makes a complaint in the discharge of his or its official duties and does that by virtue of some statutory provision, the prosecution is by the State and not by the Public servant or the Court in his or its private capacity, and that the object of the amendment, made in Section 417 Cr. P. C. by Act No. 26 of 1955 was to give to a private person a right of appeal, who had before that amendment no such right, then Section 417 (3) is clearly a case in which the word 'complaint' cannot be understood in the sense given to it by Section 4 (1) (h) of the Code.

The view taken in the case of Daulat Singh, AIR 1957 Madh Pra 72 (supra) that there are only two prosecuting agencies, namely, the State and a private complainant, and a complaint instituted by a public servant or a court acting in the discharge of his or its official duties is a prosecution instituted by the State, is to a certain extent supported by the observation of the Supreme Court in Kaushalya Ram v. Gopal Singh. AIR 1964 SC 260. In that case, the Chief Justice, delivering the judgment of the Supreme Court, analysed the provisions of Section 417 Cr. P. C. thus--

'On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear namely. (1) that the legislature though it expedient in the interest of justice and public policy that the period of six months allowed to the State Government to appeal, from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal; and (2) that in certain cases the High Court should have the power of granting special leave to a complainant as distinguished from the State Government to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of the order of acquittal.'

Further it was observed--

''But in so far as appeal by 'private prosecutor' is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of order of acquittal.' (Underlining (here into ' ') is mine)

The use of the words 'private prosecutor' in the above observation is not without significance. It is only a pointer to the fact that Section 417 (3) is only concerned with the grant of leave to appeal in a case instituted upon a complaint by a private prosecutor and that it does not cover a case instituted upon a complaint made by a public servant or a court in the discharge of his or its official duties.

12. Some reference was made at the Bar to the decisions in AIR 1957 Pat 687; AIR 1962 All 6 and AIR 1963 All 486. In none of these decisions, the question, which has been raised in this reference, arose directly for determination. In AIR 1957 Pat 687 what was decided was that when a Sub-divisional officer makes a complaint as required by Section 195 Cr. P. C., then he, and not the person who moved the Sub-divisional Officer to file the complaint, is entitled to file an application for special leave under Section 417 (3) Cr. P. C. The question whether in such a case Sub-divisional Officer can at all file an application under Section 417 (3) and whether the State should have in that case filed an appeal under Section 417 (1) did not arise for consideration.

In AIR 1962 All 6 also the question that was decided was that when a Consolidation Officer makes a complaint under Section 195(1)(c) Cr. P. C., then he can apply for leave to appeal under Section 417 (3) and not the person who made an application to the Consolidation Officer with a view to his taking action under Section 195 (1) (c) Cr. P. C. In that case also the question, such as the one involved in the present reference was neither raised nor decided. The other decision of the Allahabad High Court, namely, AIR 1963 All 486 only holds that under Section 471 (1) Cr. P. C. the State Government is given the right of appeal to the High Court against any and even order of acquittal passed by subordinate court, regardless whether the acquittal has followed a Police prosecution or in a case instituted upon a complaint That case is no authority for the proposition that, Section 417 (3) Cr. P. C. applies even to cases of acquittals in cases instituted upon complaints filed by a public servant or a court acting in the discharge of his or its official duties, and the word 'complaint' as used in Section 417 (3) Cr. P. C has the meaning given to it by Section 4(1)(h) of the Code.

13. For all these reasons, following the view expressed by me in AIR 1957 Madh Pra 72 I hold that the application under Section 417 (3) Cr. P. C. filed by the Drugs Inspector, Indore, seeking leave to appeal from the decision of the First Additional Sessions Judge, Indore acquitting the respondents in appeal, was not maintainable.

OPINION

Golvalker, J.

14. I have had the benefit to read the opinions of My Lord the Chief Justice as also that of Pandey J. I gave my most anxious consideration to both the opinions and feel respectfully inclined to concur with that of Pandeny, J. that the complainant whether he be an official filing the complaint in his official capacity as such or he be a Court, has a right to apply under Section 417 (3) of the Code of Criminal Procedure for leave to file appeal against the acquittal of the accused who was prosecuted on his or its complaint.

15. Although the right to have an offender punished by due process of law is well and equally recognised both in the State as also in the injured, there are, however, certain acts, both of commission and omission, which are made indictable only at the instance of and by certain named authorities or officials and of no others. Instances of such penal acts can be found in sections 195 to 199 of the Code of Criminal Procedure as also in certain laws and orders, contravention of the provisions of which are mode punishable. Their cognizance for purposes of punishing the offenders can only be taken on the complaints of certain named officials and of no others, even if the others may be aggrieved by those offensive acts. Even the State is not entitled to initiate any criminal proceeding against such offenders. Even if the offending acts may be cognizable or non-bailable, within the meaning of the Code of Criminal Procedure, position with respect to the aforesaid procedure for initiation of prosecution remains unaffected.

16. Then, it will also have to be borne in mind that such officials or Courts are not only riot entitled to delegate their right of proceeding against the offender to any other person or authority but also that no other authority, however, superior it may be to such officials or Courts, can proceed to bring the so-called offender to book in a criminal Court unless a right to do so is expressly granted to such superior authority: See Krishna Tukaram Jadhav v. Secy, to the Chief Minister, Bombay State, AIR 1955 Bom 315. It may be that the State may bring pressure on the named official or authority concerned to initiate such proceedings, but legally the official or the authority concerned shall be fully within his or its rights to decline to do so, if in his or its opinion such initiation is not called for or desirable. How far it would be possible to successfully resist such pressure is a different matter. This legal disability on the part of the State at the initial stage, it must be accepted, does not, however, come in its way of filing an appeal in its own right, if and when it deems necessary to exercise such right of filing an appeal against the adverse decision of the trial Court.

17. It will thus be seen that the officials or authorities or Courts who alone are recognised by certain laws to be entitled to initiate criminal proceedings, form by themselves into a separate but additional class of complainants, havins exclusive jurisdiction to bring the offender to book. This distinct class of complainants, before the amendment of the Code of Criminal Procedure in the year 1955, had also no right of appeal against the adverse decision in the criminal prosecution initiated by it It was placed for that purpose on the same footing as any other complainant, and similarly had to move the State authorities concerned to file such appeal.

The complainants were thus found to be at the mercy of the State in that matter and by themselves were helpless unless they could successfully move the higher Courts to exercise revisional jurisdiction and disturb the adverse decisions. Even then such interference by the revisional Courts in these revisional proceedings was not only rare but exceptional and limited. The higher superior Courts could only disturb that adverse decision and call upon the lower subordinate Courts to rehear the matter and decide afresh. It was, therefore, to remove this unfair and unwarranted disability, that the Code of Criminal Procedure was suitably amended by providing a right of appeal to the complainants also. But it is subject to this safeguard that such right has been made subject to prior leave to appeal being granted by the appellate Court. This safeguard had to be provided so as to prevent Court's prestige being made the sport of personal passions, while in the case of prosecution by the State it being always presumed that appeal would be filed with due deliberations and circumspection and to exercise right of appeal always in furtherance of the cause of justice rather than for personal ends.

This exceptional privilege of filing an appeal, with leave, it will be seen, is conferred in the case instituted on a complaint, the provision in that respect makes no distinction, in its own terms, between one complainant and another, whether the complainant is an official or a Court or a common person. A case can be said to be instituted on a complaint in a Court only when the Court takes cognizance of the offence alleged therein. It is the taking of the cognizance by the Court of an offence alleged in the complaint which is the deciding factor while considering whether a case is or is not instituted on a complaint. See Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541

18. It the Legislature intended to equate the official or the Court with the State in the matter of exercise of right of appeal as provided under Section 417 (1) of the Code of Criminal Procedure, it could easily do so at the time of amendment of Section 417 in 1955 It cannot be said that such complainants could before the amendment file appeal in their own name or rights. It cannot also be urged that such complaints still continue to be under the mercy of the State in the matter of filing an appeal against the acquittal Therefore, if such a right of appeal was conferred with the aforesaid avowed purpose, and since the law in this matter makes no distinction as such between one complainant and another it is not understood why one of the species of complainant, meaning officials and Courts, should be separated from its genus and equated with the State and denied right of appeal in its own rights but only to be exercised through the State.

19. The use of the expression ''private complainant'' in the case of AIR 1964 SC 260, if I may say so with greatest respect, was only with a view to distinguish that class of prosecuting agency from the 'State'' which is another such agency but without excluding the officials or Courts from the category of 'complainants'. The expression 'private complainant' has no recognition as such in law, and in my humble opinion it has been used, as one may be used in the common parlance though in law not accurately, as one distinct from the State. In the context of that case also, in my opinion, no other meaning can be ascribed to that expression.

20. Thus, respectfully agreeing with my learned brother Pandey J., I hold that the word 'complainant' in Sub-section (3) of Section 417 of the Code of Criminal Procedure refers to all those who file or are entitled to file a complaint as defined in Section 4(h) of the said Code, without any exception with respect to those who file complaints in the discharge of their duty as public servants.

[Order of Division Bench D/- 8-11-65 on receipt of opinion of Full Bench].

Sen, J.

21. Naginchandra and Maganlal are partners of a Firm known as M/s. Chimanlal and Co. They are also partners in a concern called Relief Drug House Ahmedabad which holds a drug manufacturing license on loan to Messrs. Cadilla Laboratories Ahmedabad. On 6-10-1959 and 13-11-1959 Manorama Raje T. B. Hospital Indore placed an order with the accused for the supply of 3,00.000 tablets of Isonicotinic Acid Hydrazide of 100 mg. strength.

22. The respondents supplied the tablets in bottles which had labels of Messrs. Relief Drug House. The labels showed the strength of the tablets to be 100 mg. On 19-12-1959 Shri Kulkarni the Drug Inspector inspected the Manorama Raje T. B. Hospital. He took samples of the drug supplied by the aforesaid persons and sent the same to the Government Analyst for analysis. The tablets were found to be 51-29 mg. strength.

23. On the above allegations the Drug Inspector M.P. Indore filed a complaint against Messrs Chiman Lal and Co.. Messrs. Relief Drug House, Shri Maganlal and Shri Naginchandra in the Court of the Additional District Magistrate Indore under sections 18 (i) and (ii) read with Section 27 of the Drugs Act 1950.

24. The accused denied the guilt. They threw the responsibility for the supply on Maganlal in his individual capacity. It was also pleaded that partnership of Relief Drug House was dissolved prior to the supply of tablets. The Additional District Magistrate convicted the accused and sentenced Maganlal and Naginchandra to a fine of Rs. 200/- on each count. In appeal the Additional Sessions Judge acquitted all the accused. The Drug Inspector filed an application under Section 417 (3) of the Criminal Procedure Code for leave to appeal which was granted.

25. When the case came before us for hearing on merits some time back question was raised regarding the competency of appeal on the basis of leave granted on a petition by a public officer acting in discharge of his duties. It was contended that it was only a private complainant who can move the Court under Section 417(3) of the Criminal Procedure Code. In this case the Drug Inspector being a public servant application for leave was not competent.

26. The accused placed reliance on a Division Bench case of this Court reported in 1957 MFC 273 : (AIR 1957 Madh Pra 72) As we did not agree with the view taken in that case we referred the matter to the Full Bench. It was held by the majority of the Full Bench (Pandey and Golwalkar JJ.) that Section 417 (3) applies to all acquittals recorded in cases instituted upon complaints, including those instituted by public servants in the discharge of their duty as public servants and as such public servants are competent to apply for special leave to appeal against acquittal recorded in such cases. The third Judge (Dixit C.J.) stuck to the view held in 1957 M.P.C. 273= (AIR 1957 Madh Pra 72). However as the matter has been settled by the Full Bench we now proceed to hear the appeal. It is not necessary for us to repeat the reasons given by the Full Bench

27. The acquittal has been on the ground that there cannot be any conviction under any of the provisions under Section 18 of the Drugs Act as no sample was taken from the respondents while manufacturing or selling as required under Section 22 of the Drugs Act It was also held that it is only when the sample is taken under Section 22 that a conviction can be made. The Court held that in the instant case the samples were taken from the purchaser viz Manorama Raje T. B. Hospital Indore. Though we do not agree with the reasons given by the appellate Court for acquittal we uphold the same for reasons that follow

28 After taking the samples from the Manorama Raje T.B. Hospital on 9-12-1959 they were sent to the Government Analyst P.W 2. Shri Prakash Kulkarni is the Drug Inspector who took the samples. According to him the tablets were stated to contain 100 mg. on the labels manufactured by Relief Drug House. The samples were taken in 4 bottles which Shri Kulkarni Drug Inspector sealed on the spot in presence of one Dr. J.P. Shukla. One of the bottles was given to Dr. Shukla, another was sent to the Government Analyst M.P. Indore and the remaining two he retained. The latter two were produced before the Court. There was a stock with the hospital of 222 bottles which were seized They were kept in an almirah sealed by the witness After receipt of the reports from the Government Analyst Ex. P 5, he sent copies of them to the accused by registered post.

29. I need not detail the evidence of the other witnesses examined in this case. The conviction is based on the report of the analyst Exs. P. 5 and P. 6 giving the details of the analysis by the Government Analyst M.P. Indore.

30. The charges against the accused are that on 15-11-1959 the accused at Ahmedabad manufactured for sale a drug Isonicotinic Acid Hydrazide which was not of standard quality and that the accused sold on 15-11-1959 to Manorama Raje T.B. Hospital 3,00,000 tablets of Isonicotinic Acid Hydrazide which are not of a standard quality. There was also a third charge saying that between 23-10-1959 to 15-11-1959 the accused manufactured the above mentioned tablets without obtaining a licence for its manufacture.

31. Now as regards the third charge the evidence of the prosecution is that the accused had a licence, called a loan license. On the basis of this loan license they were entitled to get the drug manufactured only from Cadilla Laboratories Ahmedabad. It was alleged by the prosecution that the Cadilla Laboratories did not manufacture the Drug, they got these manufactured elsewhere which was against the condition of license.

32. There is no legal evidence to establish this charge. The only evidence is that of P. W. 1 Bhat who is the senior Drug Inspector of Baroda District. He says that he had visited the Cadilla Laboratories on 11-3-1960 with a view to check whether they had manufactured the, drug on behalf of the Relief Drug House. He was told by one Mr. Modi one of the partners of the Laboratory that no such drug was manufactured there. The evidence of Shri Bhat P.W. 1 is hearsay. Shri Modi has not been examined. Besides that statement of P. W. 1 Bhat there is not an iota of evidence that the accused did not manufacture the drug from the Cadilla Laboratories. Therefore, there cannot be any conviction under Section 18(o) of the Act which says that no person shall manufacture for sale any drug without a license issued for such purpose. The prosecution admits that they had a loan license. It was for the prosecution to establish by examining a responsible person from the laboratory that the accused did not get the tablets in question manufactured from the Cadilla Laboratories. Therefore, there cannot be any conviction of the respondents under Section 18(c) of the Act.

33. The other charges are under Sections 18(a)(i) and 18(a)(ii) of the Drugs Act. We have already quoted the charges. The section under which the licensees have been charged are as follows:

'Section 18; -- From such date as may be fixed by the State Government by notification in the official Gazette in this behalf, no person shall himself or by any other person on his behalf,

(a) manufacture for sale, or sell or stock or exhibit for sale, or distribute (i) any drug which is not of standard quality.

(ii) any misbranded drug.'

34. Under Section 3(1) of the Act 'manufacture' is defined. In relation to any drug it includes any process or part of process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise etc. The crux of the offence is that the drug must be of standard quality. So far as standard quality is concerned it has been defined under Section 16 of the Act. It means that the drug complies with the standard set out in the Schedule. As per schedule the standard prescribed for the drug in question should be :

''The standards of identity, purity and strength specified in the current edition for the time being of the British Pharmacopoeia or the British Pharmaceutical Codex or any other prescribed Pharmacopoeia are adopted by the Permanent Commission on Biological Standardisation of the World Health Organisation.'

35. The above are the standards for the comparison. No doubt the reports of the Analyst Exs. P. 5 and P. 6 mention that the tablets in question were of 51-29mg. whereas the standard according to British Pharmacopoeia should be between 95 to 105 mg. Apart from the fact that the sample should have been compared not only with British Pharmacopoeia but also with other standards mentioned in the Schedule the report of the Government Analyst cannot be made use of without examining him. The Government Analyst who sent the report has not been examined. He is an expert and his evidence can only be used as an expert after he is examined in the Court

36. The learned Government Advocate pointed out that the evidence of the analyst is admissible under Section 25(3) of the Drugs Act, which runs as follows :

''Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within twenty-eight days of the receipt of a copy of the report, notified in writing the inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.'

37. The Government Advocate contends that it is not necessary that the Government Analyst should be examined and his report can be taken as evidence. We are not at all in agreement with this interpretation of Section 25(3). Section 25 has to be read along with Section 22 of the Act which describes the powers of Inspectors. Under Section 22(b) the Inspectors are authorised to take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed. It is after taking samples that the Inspector has to send them to the Government Analyst. Section 23 speaks of procedure how the Inspectors would take samples. It is after observing all these formalities, that Section 25(3) comes into operation.

38. In the instant case the evidence disclosed that no such steps were taken. In fact it is not disputed that the samples were not taken while the drug was being manufactured or sold or from a place where it was stocked for sale or distribution under Section 22(b). Therefore, there cannot be any question of the report of Analyst being a conclusive evidence. Therefore, if the report cannot be made available under Section 25(3) of the Act it cannot be read as evidence without the Government Analyst being examined.

39. The acquittal by the appellate Court is on the ground that there has been no seizure under Section 22 of the Drugs Act. It is wrong to say that a person cannot be convicted of selling or manufacturing a sub-standard drug if samples are not taken at the stage mentioned in Section 22(b). It will be laying too broad a proposition. There can be a conviction under Section 18 notwithstanding the fact that the Inspector did not take the sample as contemplated under Section 22(b) of the Act, if the prosecution can establish otherwise the ingredients of offence under Section 18 of the Act.

40. It was argued by the learned counsel for the State that in the evidence that has been laid the accused can be convicted under Section 18(a)(ii) of the Act for misbranding. Apart from the fact that the accused were never asked to meet the charge, nor was any question put tothem with the knowledge that they had to meet the same, the offence of misbranding also depends on the tablet containing 51 mg. of the Isonicotinic Acid Hydrazide. As the report is inadmissible, no conviction can be made for this offence as well.

41. However as stated above as we donot find any legal evidence for convictingthe accused, the appeal is dismissed.


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