JAYANTHILAL DAVE Vs. STATE ASSISTANT DRUG CONTROLLER MYSORE

JUDGEMENT

(1.) The appellant was charge sheeted alleging violation of para 16 and 20(3) of Drugs (Price Control) Order 1995, which is punishable under s 7 and 7 of the Essential Commodities Act, 1995 and for those offences the appellant was tried before the 3rd Additional CJM, Mysore in C.C. No. 264/2003. By judgment dated 25.6.2008, the learned CJM acquitted the appellant - accused of all the charges levelled against him. Aggrieved by the said judgment of acquittal, the State filed appeal before the Sessions Judge in Criminal Appeal No. 252/2008 under Section 378(1)(a) Cr.P.C. as amended by Act 25 of 2005. The learned Sessions Judge, in exercise of his appellate power, by the judgment and order dated 1.12.2009, convicted the appellant for the aforesaid offences and sentenced him to undergo imprisonment and also to pay fine. Against the said judgment of conviction passed by the learned Sessions Judge, the appellant filed Revision Petition before this Court under Section 397 Cr.P.C. which came to be numbered as Crl.R.P. No. 324/2010. Registry, on scrutiny of the papers, raised objection regarding maintainability of the Revision Petition against the judgment of conviction. In the light of the said objection raised by the Registry, the learned Counsel for the appellant filed a memo seeking conversion of the said Revision Petition into an appeal under Section 374 Cr.P.C. In the light of such memo, this Court by order dated 23.3.2010, permitted the appellant to convert the Revision Petition into a criminal appeal. Pursuant to such order, the present appeal came to be registered. In the mean while, since there was delay in filing this appeal, the appellant also filed an application for condonation of delay. When the application was listed for orders, the question as to whether the appeal under Section 374 Cr.P.C. is maintainable, arose for consideration. It is at that stage, the learned Counsel for the appellant filed memo seeking permission to convert this appeal into a Revision Petition, presumably on the assumption that no appeal lies under Section 374(2) of Cr.P.C. and the remedy for the appellant is only by way of Revision Petition under Section 397 Cr.P.C.

(2.) In the light of the above, I have examined the provisions of Sections 374 and 378 of Cr.P.C. Prior to the amendment of Section 378 Cr.P.C, by Act 25 of 2005, State was required to file appeal before the High Court against the original or appellate order of acquittal passed by any court other than High Court, or an order of acquittal passed by the Court of Session in revision. In other words, there was no provision conferring appellate power to the court of Sessions against the judgment of acquittal passed by the inferior criminal court. By the Act 25 of 2005, Section 378 Cr.P.C. came to be amended, whereby the State is given right to prefer an appeal before the court of Sessions against an order of acquittal passed by a Magistrate in respect of cognizable and non bailable offence. It is in exercise of that power as amended by Act 25 of 2005, the State, in the case on hand, filed appeal before the Court of Sessions against the order of acquittal passed by the Magistrate. In exercise of the appellate power, the learned Sessions Judge reversed the judgment of acquittal and recorded conviction. Now the question is whether an appeal lies to this Court under Section 374 of Cr.P.C. against the judgment of acquittal passed by the Sessions Judge in exercise of appellate power under Section 378(1)(a) of Cr.P.C.