J KAMALA Vs. DRUG INSPECTOR WYNAD

JUDGEMENT

(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:

(2.) S.473 of the Code of Criminal Procedure reads as follows:

(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.