P.T.HAMZA Vs. DRUGS INSPECTOR

JUDGEMENT

(1.) THE revision petitioners herein are the accused numbers 1 and 4 in a prosecution before the Judicial First Class Magistrate Court - II, Peermade under the provisions of the Drugs and Cosmetics Act. The complaint was filed before the trial court by the Drugs Inspector, Idukki alleging that on 19/06/2008 the petitioners were found selling some drug without licence. Detection was made on 19/06/2008, but complaint was made by the Drugs Inspector only on 09/12/2011. Finding that the complaint is delayed the Drugs Inspector also filed CMP No.1931/2011 for condonation of delay. The petitioners entered appearance in the said proceedings and resisted CMP 1931/2011 on the ground that the petition does not contain any satisfactory explanation for the delay. The learned Magistrate heard both sides and decided CMP 1931/2011 in favour of the Drugs Inspector, finding that the delay stands explained. The reason stated for the delay by the Drugs Inspector is that enquiry had to be made to trace out the correct address and details of the manufacturer, such enquiry continued for about three years, and filing of complaint was thus delayed. Finding that the explanation is acceptable, the learned Magistrate condoned the delay under Section 5 of the Limitation Act by order dated 05/05/2014. Consequently, cognizance was taken by the court on the complaint of the Drugs Inspector. Aggrieved by the order in CMP No.1931/2011, the two accused have come up in revision.

(2.) THE learned counsel for the revision petitioners submitted that the delay was wrongly condoned by the court below under Section 5 of the Limitation Act. That the provision was wrongly quoted, is not at all material. It is true that Code of Criminal Procedure itself contains provision for extension of period of limitation. What is provided therein is extension of period of limitation if the court finds the necessity of such an extension, and not condonation of delay as provided under Section 5 of the Limitation Act. The law is that even in cases where proper explanation is not there for delay, the court can extend the period of limitation if the court finds the absolute necessity of prosecution in larger public interest. This means that wide discretion is given to the court in the matter of delay. In this case, the explanation given by the complainant is well acceptable that details of the manufacturer could be traced out only after three years.

(3.) OF course, trial of the case will involve a warrant procedure when the offence is punishable with imprisonment for three years. If the revision petitioners are really confident that sufficient materials are not there against them for prosecution, they can very well make application for discharge before the trial court. It is submitted that the revision petitioners have otherwise licence to sell drugs and cosmetics, but a prosecution happened to be launched against them just because there is no specific licence for the drug seized by the Drugs Inspector. Such aspects will be considered by the trial court while deciding the question of discharge. Consequent to the extension of period of limitation cognizance was taken by the trial court on the complaint of the Drugs Inspector, but the said cognizance is not under challenge. Anyway, the revision petitioners can be said to be aggrieved by the order of the trial court extending the period of limitation, because that will substantially effect their rights. Without prejudice to their right to make application for discharge this revision can be dismissed. This court directs the trial court to examine the provisions of the Drugs and Cosmetics Act before proceeding further in the matter. The trial court may not be mis guided by the provisions quoted in the complaint by the Drugs Inspector. The trial court will have to examine the whole complaint and see whether the complaint in fact discloses any definite offence, and if any such offence is disclosed, the trial court will decide what exactly is the correct provision involved. In the result, this revision petition is dismissed, without prejudice to the right of the revision petitioner to apply for discharge in the court below.