DRUGS INSPECTOR M P Vs. CHIMANLAL AND CO

JUDGEMENT

(1.) THIS ease 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*.- "There are two answers to this contention. The present application for leave to appeal and the proposed appeal are by the State and Dot by the Forest Banger, 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 complain 1 of a private person and Dot 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 beiDg 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 complaiot 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 Durgs 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.) SUB-section (1) of section 190 of the Code, which provides for three ways in which cognizance of offences may be taken by Magistrates, reads: