State
of Rajasthan Vs. Sanjay Kumar & Ors [1998] INSC
270 (1 May 1998)
M.K.
Mukherjee, Syed Shah Mohammed Quadri Quadri, J.
ACT:
HEAD NOTE:
Special
leave is granted.
The
state of Rajasthan has assailed the validity of the judgment and order of the
High Court of Rajasthan in S.B.
Crl.
Misc. Petition No. 293 of 1996 dated April 11, 1996.
On February 29, 1988, the Senior Drugs Inspector (I.B.),
collected samples of (i) tenokap suspension B. No.303 and (ii) Tab. Oxyphenbutabne
I.P. B. No. 1114 from M/s .Jayshree Medical Centre, Baroda (Gujarat), meant for public sale . He sent those samples for
chemicals analysis to Government Analyst, Food and Drugs Laboratory, baroda on March 2,1988. In his report of July 2,1988, the Government Analyst opined that
those drugs were not of standard quality. After due enquiry and investigation
the Drug Controller ordered prosecution of t he respondents on February 3, 1990
and accordingly the Drugs Inspector (IB), Directorate, Medical and Health
Services, Rajasthan, Jaipur, filed complaint under Section 18(A) read with
Sections 16,17 and 17A punishable under Sections 27(d) and 27(b)(i) of the
Drugs and Cosmetics Act, 1940, on June 28,1991. On the same day, the learned
Additional Civil Judge & C.J.M., Court No.6, Jaipur City jaipur took cognizance on the said
complaint as Criminal Case No. 247/91 and issued summons to all the
respondents. That order of the learned magistrate was questioned by the
respondents before the High Court in S.B.Crl. Misc. Petition No. 293 of barred
by limitation under Section 468(2)(c) Cr. P.C. By order of April 11, 1996, the learned Single Judge of the
High Court who dealt with that petition accepted that contention and quashed
the proceeding in the said criminal case initiated by the learned Magistrate on
June 28, 1991.
Shri Aruneshwar
Gupta, the learned counsel appearing for the State, contends that the High
Court was in error in computing the period of limitation from the date of
collecting samples instead of from the date of the report dated July 2, 1988 of the Government Analyst. Learned
counsel for the respondents while supporting the order of the High Court argued
that the date when the samples were collected was the date of the offence so it
was rightly taken as the starting point of limitation and from that date the
complaint was clearly barred by limitation.
The
only question that arises for consideration is:
whether
the complaint in question is barred by limitation under Section 468 Cr. P.C.
In the
Code of Criminal Procedure, 1973, Chapter XXXVI has been added prescribing
limitation for taking cognizance of certain offences with a view to expedite
the process of detection and investigation of crimes and also to ensure
observances of the principle of fairness in the total of the offences by
barring belated prosecution. Delay in prosecution of offences causes undue
hardship as it keeps the sword handing on the heads of accused persons and it
also results in the material evidence getting vanished. This chapter applies to
all such offences for which punishment prescribed is less than three years. But
it does not apply to offences for which punishment prescribed is more than
three years and to economic offences under various Acts, which are excluded
under Central Act 12 of 1974 or any State Acts. It contains seven sections
(467-473). Section 467 defines the expression 'period of limitation' used in
the chapter. Section 468 creates bar to taking cognizance of offences after
lapse of period of limitation. Sections 469 to 473 deal with various aspects of
computation of limitation. Of the aforementioned provisions, we are concerned
with Sections 468 and 469. Sub-section (1) of Section 468 ordains that no Court
shall take cognizance of an offence of the category specified in sub-section
(2), after the expiry of the 'period of limitation' prescribed thereunder.
This, however, is subject to the other provisions of the Code. Sub-section (2)
postulates different period of limitation for offences with reference to the
punishment provided for them; if the punishment provided for an offence in any
Act is only fine, the period of limitation fixed is six months; if the offence
is punishable with imprisonment for a term not exceeding one year, the period
of limitation prescribed is one year and if the offence is punishable with
imprisonment for a term exceeding one year but not exceeding three years, the
period of limitation laid down is three years. And sub-section (3) spells out
the rule of limitation in cases of joinder of charges; if a person is tried for
more offences than one, then the period of limitation will be determined with
reference to the offence which is punishable with the more severe punishment
or, as the case may be, the most severe punishment; for example, if a person is
tried for various offences and some of them are punishable with fine and some
with imprisonment for a term less than a year and some for which the punishment
is provided upto three years, then the period of limitation for all the
offences, if they are tried together, will be three years.
Section
469 deals with commencement of the period of limitation and it reads thus:
"
469. Commencement of the period of limitation –
(1)
The period of limitation, in relation to an offender, shall commence –
(a) on
the date of the offence; or
(b)
where the commission of the offence was not known to the person aggrieved by
the offence or to any police officer, the first day on which such offence comes
to the knowledge of such person or to any police officer, whichever is earlier;
or
(c) where
it is not known by whom the offence was committed, the first the day on which
the identity of the offender is known to the person aggrieved by the offence or
to the police officer making investigation into the offence, whichever is
earlier."
A
plain reading of the provision extracted above shows that in sub-section (1)
three alternative starting points of limitation have been specified –
(a) the
date of the offence;
(b)
the first day on which an offence came to the knowledge of the person aggrieved
by the offence or to any police officer, whichever is earlier, in a case where
the commission of the offence was not known to any of them, or
(c)
the first day on which the identity of the offender is known to the person
aggrieved by the offence or to the police officer making investigation into the
offence, whichever is earlier, but this can be called in aid in a case where it
is not known by whom the offence was committed. basically from the date of the
offence the period of limitation will start but there will be cases where the
commission of offence or identity of the offender comes to knowledge of those
concerned with it long thereafter so in such situations clauses (b) and (c), as
the case may be, would be the date of commencement of period of limitation.
Now we
shall see which clause of sub-section (1) of Section 469 is attracted to the
facts of the case. For this purpose it will be necessary to revert to the facts
of this case. The essence of the offences charged is manufacture of
adulterated, sub-standard, misbranded, spurious drugs within the meaning of the
relevant provisions of the Act and/or storage, distribution and sale of such
drugs in contravention of the provisions of the Act. On the date of collection
of samples from respondent No.16, on February 29, 1988, it could not have been said that
any offence was committed as selling of drugs per se is no offence and the
quality of the drugs was not known to the Drugs Inspector, the complainant on
that date. It is only, when the report of the Government Analyst was receive,
that it came to light that the provisions of the Act are violated and offence
is committed. So on the facts of this case it cannot be said that Clause (a) of
Section 469(1) is attracted. That the drugs which were offered for sale were
sub- standard/adulterated, within the meaning of the Act, came to the knowledge
of the Drugs Inspector only on July 2, 1988
when the report of the Government Analyst was received by him; and therefore,
clause (b) of Section 469(1) will be attracted.
Under
cognate legislations of different States, similar questions arose before the
High Courts. In R.S. Arora vs. The State (1987) Crl. Law Journal 1225, the
question which fell for consideration of Delhi High Court was whether for
prosecution under Sections 7, 19 and 16(1) of the Seeds Act, 1966, the period
of limitation of six months would start from the date of collection of samples
under clause (a) or from the date of Seed Analyst report for purposes of clause
(b) of Section 469(1) Cr.P.C. The learned Single Judge of the Delhi High Court
took the view that the limitation commences from the date of submission of the
report by the Seed Analyst to the Inspector, so Section 469(1) (b) would apply.
The same view was taken by the Bombay High Court in Omprakash Gulabchandji Partani
vs. Ashok & Anr. (1992) Crl. L. J. 2704.
In
M/s. Satyanarayana General Traders & Ors. vs. State (1993) 2 Crimes 203, a
learned Single Judge of the Andhra Pradesh high Court held that for prosecution
of offences of mis-branding under Insecticides Act, the period of limitation
would start from the date on which the report of the Analyst was received but
not from the date of taking samples and thus Section 469(1) (b) would be
attracted.
We are
in entire agreement with the views expressed by the learned Judges of the High
Courts in the above cases.
For
the above reasons, in the instant case, the limitation for the purpose of
Section 468(2) (c) will commence from July 2, 1988, the date of knowledge of
the commission of offence to the concerned officer under Section 469(1) (b) but
not from February 29,1988 (the date of collection of samples by the Drugs
Inspector) and as the complaint was filed on June 28, 1991 which is within
three years so the complaint is not barred by limitation under Section 468(2)
(c). The High Court has missed this germane aspect erroneously took the date of
commencement of the limitation as February 29,1988 , the date on which the samples
were collected by the Drugs Inspector form accused No. 16. It is thus clear
that the High Court has committed illegality in so computing the period of
limitation, which results in miscarriage of justice.
In the
result, we set aside the impugned order of the learned Single Judge of the High
Court dated April 11,1996, allow the appeal and remand the case to the learned
Additional Civil Judge and Chief Judicial Magistrate, Court No. 6 Jaipur City Jaipur,
for disposal in accordance with law.
Back