DR. SUNDER DAS VERMA AND OTHERS Vs. STATE

JUDGEMENT

(1.) Both these revisions involve common questions of fact and law and can be disposed of by a single judgment. They arise out of two complaints filed by Shri B.L. Dhawan, Senior Excise Inspector, Meerut under Sec. 60(a) of the U.P. Excise Act on the allegation that on June 10, 1963 the accused were found in possession of 2025 liters of rectified spirit in iron drums and others receptacles.

(2.) The cases were adjourned from time to time for one reason or the other. On March 5, 1964 the accused raised a preliminary objection that the cases in question having commenced on the complaint of the Senior Excise Inspector, they should be dismissed and the accused acquitted on account of the non-appearance of the complainant on that date. The learned Magistrate in his detailed order dated March 5, 1964 found that the Senior Excise Inspector, Shri B.L. Dhawan, who had filed the complaints, had since been transferred from Meerut district and was therefore not present in Court. However, in view of the fact that the accused themselves claimed that the alleged rectified spirit recovered from their possession was really Homoeopathic medicine of different potency and the complainant having already moved the court, as far back as July 30, 1963, that samples from various containers may be sent to the Chemical Examiner, Agra for his test and report, the Magistrate came to the conclusion that the cases materially depended upon the report of the Chemical Examiner. But the court found that the samples had not till then been extracted for being sent to the Chemical Examiner, who was bound to take appreciable time to submit his report, so it would cause unnecessary harassment to the accused if they were required to attend the court on various dates, which may be fixed in the cases from time to time. Hence on March 5, 1964, the Magistrate rejected the prayer of the accused for dismissal of the complaints and ordering their acquittal on the ground of the absence of the complainant and stayed 'the proceedings under Sec. 249 Crimial P.C. without pronouncing any judgment till the report of the Chemical Examiner is received'. The Magistrate further directed the accused to remain on bail already furnished by them.

(3.) The report of the Chemical Examiner was received in Nov. 1966, hence on Nov. 15, 1966 the prosecution moved an application praying for sending for the record from the Record Room and re-summoning the accused to stand their trial. By his order dated Nov. 26, 1966 the Magistrate summoned the accused for Dec. 13, 1966 but the cases had to be adjourned for one reason or the other from time to time. On Feb. 10, 1967 the accused reiterated their previous objection that on March 5, 1964 the complaints should have been dismissed and the accused acquitted, on account of the absence of the complainant and that the order passed by the Magistrate date staying the proceedings under Sec. 249 Crimial P.C. should be construed as an order of acquittal under Sec. 247 Crimial P.C. inasmuch a Sec. 249 did not apply to a complaint case. The learned Magistrate by his order dated March 15, 1967 rejected the above pleas of the accused and directed that the trial should proceed.