Karnataka High Court
Mohammed Javeed Ikbal S/O Mohd. Usman vs The State Through Asst. Drug ... on 24 January, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 24th DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.15652/2012
BETWEEN:
Mohammed Javeed Ikbal,
S/o Mohd. Usman, Age: Major,
Occ: Owner of Bharat Medical Stores
Main Road, Devadurga,
R/o Devadurga. .. PETITIONER
(By Shri Avinash A Uploankar, Advocate)
AND:
The State through
Assistant Drug Controller,
Raichur. .. RESPONDENT
(By Shri Sanjay A Patil, Additional State Public Prosecutor)
This Criminal Petition is filed under Section 482 of the
Criminal Procedure, 1973 praying to exercise the inherent
powers under Section 482 of the Criminal Procedure Code,
2
1973 examine the records and quash the order passed in
C.C.No.171/2005 by the trial court of JMFC at Deodurga dated
3.7.2012.
This Criminal Petition coming on for admission this day,
the Court made the following :-
ORDER
The petition coming on for admission is considered for final disposal.
2. It is the case of the petitioner that a private complaint was lodged against the petitioner, who is the owner of a Medical Store, at Devadurga, Raichur District. On inspection by the complainant - Drug Inspector, attached to the Assistant Drug Controller, Raichur, it was alleged that the said Drug Inspector had found the petitioner having sold drugs, namely, two vials of Streptokinase, 12 vials of Cosamine and 10 ampules of Tramazac under bill No.355 on 26.3.2002 to one Laxmi Bai, wife of Laxminayak, but had not disclosed the name of the manufacturer of the above drugs and also did not 3 maintain the record of purchase of the above medicine and thereby, it was alleged that the petitioner had committed offences punishable under Sections 18A and 18B read with Sections 28 and 28A of the Drugs and Cosmetics Act, 1940 (Hereinafter referred to as the 'DC Act', for brevity). On the basis of the complaint, the trial court having taken cognizance, a case was registered against the petitioner in CC 171/2008 and the court below had recorded the plea of the petitioner on 1.6.2006. During the pendency of the case, the complainant is said to have filed an application for "alteration of plea" after a delay of 3 years on 23.5.2012. The petitioner had resisted the said application, but the court below had allowed the application by its order dated 3.7.2012. It is that which is under challenge in the present petition.
3. The learned Counsel for the petitioner would urge several grounds. He would, firstly, contend that the proceedings having taken their course on the basis of a 4 complaint brought for offences punishable under Sections 18A and 18B read with Sections 28 and 28A of the DC Act, the so- called application for 'alteration of plea' was, in effect, to add to the allegations against the petitioner of violation of Rule 65(4)(4)(i) of the Drugs and Cosmetics Rules, 1945, as amended by the Drugs and Cosmetics (Fifth Amendment) Rules 2006 (Hereinafter referred to as the '2006 Rules', for brevity), which is punishable under Section 27(d) of the DC Act. The court below has opined that the further accusation made would make out a triable case and therefore, there was no prejudice caused to the petitioner if the same is incorporated and has allowed the application in the face of the objections by the petitioner.
The learned Counsel would submit that the procedure followed in the above case is as provided for summary trials, which envisages the procedure to be followed in respect of summons cases and Chapter XX of the Criminal Procedure Code, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) 5 would therefore be relevant. There is no provision, under which, the court below could record a plea of the petitioner and thereafter on further accusations, hold that the petitioner was answerable in respect of the same as well and to record a plea for the second time in respect of an additional offence that is sought to be urged.
He would next contend that the DC Act provides for the punishment in respect of offences that are alleged and therefore, the question of invoking Section 27(d) of the DC Act, which generally provides for punishment, which is not otherwise provided for under the Act, would not be capable of being invoked by hindsight and with reference to an offence, which was not even alleged in the first instance. The learned Counsel would also contend that even if it is possible for the complainant to institute fresh proceedings in respect of the allegation now made, the same would not be permissible, as it would be barred by limitation, in that, the punishment that can be imposed under Section 27(d) of the DC Act, is maximum of 6 two years and in terms of Section 468 of the Cr.PC, the limitation for the court to take cognizance of an offence, for which, punishment is attracted, is more than one year but less than three years, is two years. In the instant case, cognizance, as already stated, was taken on 28.4.2005, the plea of the petitioner was recorded on 1.6.2006 and the present impugned order is dated 3.7.2012. Therefore, if the same has been incorporated and if it is allowed to date back, it would lead to a time barred case being instituted against the petitioner insofar as the additional allegation is concerned and hence, the learned Counsel would submit that on all the three grounds, the petition would have to be allowed.
4. Insofar as the first contention that the petitioner's plea having been recorded, it was impermissible for the court below to thereafter incorporate additional allegation of violation of Rule 65(4)(4)(i) of the 2006 Rules, is concerned, is not prohibited under the 7 Cr.P.C. As seen from the provisions under Chapter XX of the Cr.P.C., the court is required to state to the accused the particulars of the offence of which he is accused and he shall be asked whether he pleads guilty and has any defence to make and it is not necessary to frame a formal charge. Therefore, the intention in law is to make the accused aware of what he is standing trial for and hence if the accusations are capable of making out a triable case, there is no bar to furnish the said particulars to the accused and ask whether he pleads guilty or has any defence to make in respect of that additional allegation. The petitioner's right to defence in respect of such additional allegation, however, cannot be taken away and he would have to be given all opportunity to defend himself insofar as any such additional allegation is concerned. Therefore, the contention that the additional allegation was at the fag end of the proceedings after the evidence has been recorded and so on and so forth, is not a situation where the petitioner would be prejudiced to his disadvantage. On the 8 other hand, it would avoid fresh proceedings being initiated in respect of such additional allegation, if indeed, it leads to a triable case and it would be to the advantage of the petitioner if any such additional allegation is also tried in the same case.
Insofar as the second contention that the punishment is prescribed in respect of the offences alleged under independent provisions of the Act and that Section 27(d) being invoked to impose punishment, which is not otherwise provided for, is not with reference to the violation of the Rule, which has been alleged as an additional accusation. Therefore, that ground may also not hold water.
Insofar as the third contention that the additional allegation is made at a point of time, where if an independent allegation were to be made on the same ground, the same would not enable the court to take cognizance, on account of sheer lapse of time as Section 468 of the Cr.PC does lay down the time frame, within which, the court could take cognizance of particular classes of offences and particular offences which 9 attract certain period of punishment. In the instant case, the additional allegation, if punishable under Section 27(d) of the DC Act, would attract a punishment of not more than two years and the limitation under Section 468 of the Cr.P.C does contain a specific bar to take cognizance of offences for which, the punishment does not exceed three years, if any such complaint is made after the lapse of two years. Hence, in the instant case, the petitioner having pleaded not guilty to the allegations in respect of certain offences as early as in the year 2006 and the additional allegation being made in the year 2012, which has been allowed by the court below, would result in the court having taken cognizance of an offence which was clearly barred under Section 468 of the Cr.P.C. Therefore, on the above ground that the court could not have taken cognizance of any such additional allegation after much lapse of time, will have to be conceded in favour of the petitioner. 10
Accordingly, the petition is allowed in part. The order dated 3.7.2012 in CC No.171/2005, passed by the Court of the JMFC, Deodurga is set aside and there shall be no trial in respect of the offence alleged under Rule 65(4)(4)(i) of the 2006 Rules, punishable under Section 27(d) of the DC Act, which has been permitted by the court below. The court below may however proceed further with the case, as it originally stood.
It is noticed that in the impugned order, the phrase 'substance of accusations" is stated as 'subsistence of acquisition' in three places and the court below has overlooked the same. This should be avoided. The court should take more care in vetting its orders before affixing its seal on such orders.
Sd/-
JUDGE nv