Delhi District Court
(Subir Dutt Sharma vs . State) on 25 August, 2015
-: In the matter of :-
Crl.Rev.No.31 / 13.
(Subir Dutt Sharma vs. State)
Dated : 25th August 2015.
IN THE COURT OF : SH. KANWALJEET ARORA :
ADDL. SESSIONS JUDGE 03 : NORTH WEST
ROHINI COURTS : NEW DELHI.
Crl.Rev.No. : 31 of 2013.
Under sec. : 397 r/w sec. 399 Cr.P.C.
(1) SUBIR DUTT SHARMA,
S/o.: Sh.Birbal Sharma,
R/o.: D83, Lord Krishan Road,
Adarsh Nagar, Delhi 110053.
(2) NAVTEJ SHARMA,
S/o.: Sh.Birbal Sharma,
R/o.: D79, Lord Krishan Road,
Adarsh Nagar, Delhi 110053.
[...Revisionists]
versus
STATE
(Through Sh.S.K.Sharma)
Drug Inspector,
Ayurvedic Drug Control Department,
Delhi Administration,
15, Sham Nath Marg, Delhi.
[.... Respondent]
Date of Institution of Revision : 03.10.2011.
Date of Allocation : 01.10.2011.
Date of conclusion of arguments : 12.08.2015.
Date of Order : 25.08.2015.
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-: In the matter of :-
Crl.Rev.No.31 / 13.
(Subir Dutt Sharma vs. State)
Dated : 25th August 2015.
[Particulars related to impugned order]
C.C. No. : 56 / 1 / 93.
Under Section : 33 E.E.C.(a) (i) & (b)
r/w sec. 33 (I) of Drugs
and Cosmetics Act,1940.
Date of Impugned Order : 12.09.2011.
Name of Ld.Trial Court : Sh.Vishal Singh,
Ld.MM, North West,
Rohini Courts, Delhi.
Memo of appearance:
Sh.Wahaz Ahmed, Advocate, Ld.Counsel for the
revisionists.
Ms.K.Kiran, Advocate, Ld. Counsel for the Respondent
with Sh.T.Santhil Kumar, Drug Inspector.
O R D E R :
1. Aggrieved by orders dated 12.09.2011 passed by Sh.Vishal Singh, Ld.MM, Rohini Courts whereby the application / submissions raised on behalf of the revisionists herein, who are arrayed as accused in the complaint case, titled "State through Dr.S.K.Sharma Drug Inspector vs. Subir Dutt Sharma & Ors.", were dismissed by Ld.Trial Court, the revisional jurisdiction of this Court had been invoked, by filing the present revision petition. Page 2 of 20
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(Subir Dutt Sharma vs. State) Dated : 25th August 2015.
2. Notice of the revision petition was ordered to be issued to the respondent. Trial court record was also summoned.
3. Pursuant to service of notice, Ms.K.Kiran, Advocate alongwith Sh.T.Santhil Kumar Drug Inspector, has tendered appearance on behalf of respondent.
4. I have heard the arguments advanced on behalf of revisionists by Sh.Wahaz Ahmed, Advocate and on behalf of respondent by Ms.K.Kiran, Advocate, Ld.Counsels for the respective parties.
5. I have also gone through the trial court record as well as the impugned order dated 12.09.2011 passed by Sh.Vishal Singh, Ld.MM. Page 3 of 20
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6. Facts in nutshell which led to passing of the impugned order dated 12.09.2011 by Ld.Metropolitan Magistrate, as emanating out of the revision petition and trial court record, necessary for disposal of present revision petition are delineated as under:
(i) That, an FIR No.380 / 91 dated 06.11.1991 was registered with PS Jahangir Puri under section 284 / 304 / 34 IPC and on conclusion of the investigations, the same was filed in Court which was subsequently committed to the Court of Sessions on 07.04.1992.
(ii) It is alleged in the complaint that both the revisionists were arrayed as accused in the said FIR. It is submitted that in November 1991, on account of "Sura Kaand", prosecution had submitted 254 challans / charge sheets against manufacturers/ suppliers / sellers of "Karpoor Asav", for Page 4 of 20
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(Subir Dutt Sharma vs. State) Dated : 25th August 2015.
various offences.
(iii) It is alleged in the revision that against revisionist no.1 namely Subir Dutt Sharma and revisionist no.2 Navtej Sharma charges under section 61 of Punjab Excise Act were framed by Ld.ASJ.
(iv) It is alleged in the revision that revisionist no.1 had pleaded not guilty and claimed trial in the said case and after undegoing trial he was acquitted by Ld.ASJ, vide orders dated 26.04.1999 of the said charge.
(v) It is alleged that revisionist no.2 Navtej had pleaded guilty to the charge under section 61 of Punjab Excise Act and he was convicted and sentenced to undergo imprisonment "Till rising of the Court" and to pay a fine of Rs.3,000/ ID, 6 months RI vide Page 5 of 20
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orders dated 02.08.1995, passed by Ld.ASJ.
(v) It is alleged that during the course of investigations of said case, Dr.S.K.Sharma, Inspector, Drug and Cosmetics Department had drawn 2 samples from the bottles, which were taken into custody by police of PS Jahangir Puri in relation to FIR No.380 / 91 registered with PS Jahangir Puri on 07.11.1991 which was submitted to CFSL on 15.11.1991, wherein a report dated 06.01.1992 was received and was made part of the charge sheet of said case.
(vi) It is alleged that the same report is being relied upon by the Drug Inspector, the complainant for initiating criminal complaint against the present revisionists, for different offences under Drugs and Cosmetics Act,1940. Page 6 of 20
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(vii) It is alleged in the revision petition, that once the revisionists had underwent trial for alleged possession of "Karpoor Asav", for which revisionist no.1 was acquitted and revisionist no.2 was convicted, they cannot be prosecuted again for a different offence on the basis of same facts.
(viii) It is alleged in the revision petition, that during the proceedings of the complaint so filed against the revisionists, by the Drug Inspector, revisionists had taken this plea which did not find favor with Ld.Trial Court and resulted in dismissal of their submissions vide impugned order dated 12.09.2011.
7. It is this order which has been challenged / impugned by the complainant by way of the present revision petition.
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8. Sh.Wahaz Ahmed, Advocate, Ld.Counsel for the revisionists while assailing the impugned order, had contended that there was no reason with Ld.Trial Court for dismissing their submission. He contended that Ld.Trial Court has failed to consider that filing of the complaint case by the respondent drug inspector against the revisionist amounts to "double jeopardy".
9. Ld.Counsel for the revisionists had contended that on same facts, a person who has already been prosecuted and punished, cannot be tried for a different offence on the basis of same facts. In support of his contention, he had relied upon the precedent titled "Kolla Veera Raghav vs. Gorantla Venkateswara Rao & Anr." reported as I (2011) CCR 394 (SC).
10. Countering these contentions raised by Ld.Counsel for the revisionists, Ms.K.Kiran, Advocate Ld.Counsel for respondent vociferously Page 8 of 20
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defended the impugned order. It is submitted by Ld.Counsel for the respondent that Ld.Trial Court had not only appreciated all the contentions raised before it, on behalf of the revisionists, who are accused therein, but had also considered their statutory and constitutional rights agitated before Ld.Trial Court. It is submitted by Ld.Counsel for the respondent that Ld.Trial Court has given clear and specific reasons for dismissing the submissions urged on behalf of the revisionists.
11. Administration of Criminal Justice System rests on sound and well established legal principles. We are governed by a "Codified Law"
as all the procedural aspects have been duly codified in Code of Criminal Procedure. The object of the Code is to ensure that accused persons gets a fair trial on certain well established and well understood lines in accordance with the notions of Principles of Natural Justice. These procedures have been duly codified in the Code, so as to have a Page 9 of 20
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uniform applicability. It is expected of every criminal court entrusted with responsibility of criminal adjudication to follow the duly prescribed procedure for adjudication of any matter pending before it, and not to come up with different procedures for different cases, so as to spring surprises for the parties to a petition.
12. Further, it is established principle of adjudication of Criminal Justice System that wherever any statutory or constitutional right is conferred on an accused, the same has to be extended to him and for that, a duty has been enjoined on the trial court to ensure that the requisite benefit is given to the accused. However, while extending the benefit, the Court is further obligated to see that the same is extended to the extent provided and not any further.
13. It is pertinent to mention that the scope of this Court, in its revisional jurisdiction is Page 10 of 20
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limited and is required to be exercised only if, it is found that some injustice has resulted due to impugned order passed by Ld.Trial Court. Further, if the Trial Court, while passing the impugned order has acted, contrary to the well established principles of Law, or the order has been passed without any evidence to support the finding or if the finding arrived at, by Ld.Trial Court is perverse or such as no reasonable man could have arrived at on the same, on the basis of evidence, so produced before it.
14. In the backdrop of above, I have considered the rival contentions and have perused the statutory provisions in this regard in the light of precedents cited.
15. The short question which is required to be considered for disposal of present revision petition is, as to whether the complaint case filed by Drug Inspector against the accused persons, who are Page 11 of 20
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revisionists herein for proceeding against them for offences under Section 33 E.E.C.(a) (i) & (b) read with section 33 (I) of Drugs and Cosmetics Act 1940, would amount to "double jeopardy". More particularly when the revisionists namely Subir Dutt Sharma and Navtej Sharma, had already underwent trial for offence under section 61 of Punjab Excise Act.
16. In order to find out the answer to this question, it is pertinent to mention relevant statutory and constitutional provision as has been prescribed in Article 20 (2) of Constitution of India, and Section 300 (1) of Code of Criminal Procedure.
17. Article 20 (2) of the Constitution lays down a constitutional right which states that, "No person shall be prosecuted and punished for the same offences more than once".
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18. Section 300 (1) of Code of Criminal Procedure gives a statutory right and the same is worded as under :
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Subsection (1) of Section 221, or for which he might have been convicted under Subsection (2) thereof."
19. The fundamental right which is guaranteed under Article 20 (2) enunciates the principle of "autrefois convict" or "double jeopardy" i.e. a person must not be put in peril twice for the same offence.
20. This "Doctrine of double jeopardy" is based on the ancient maxim "nemo debet bis punire pro uno delicto", that is to say that no one ought to be punished twice for same offence. The pre Page 13 of 20
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requisite for raising the pleas of "autrefois convict"
or "autrefois acquit" is that the person should be previously convicted or acquitted with respect to the charge for same offence, for which or in respect of which, he has now been sought to be prosecuted again as an accused.
21. The relevant test for invocation of this plea is whether the former offence and the offence with which he is now charged, have the same ingredients in the sense, that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials.
22. A plea of "autrefois acquit" is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.
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23. To operate as a bar, the second prosecution and the consequential punishment thereunder, must be for the same offence. The crucial requirement therefore, for attracting the Article is that the offences are the same i.e. they should be identical.
24. In case, the two offences are distinct and different, then notwithstanding that the allegations of facts in the two cases ie. the initial charge sheet and the subsequent complaint case, might be substantially similar, the benefit of the ban mentioned in Section 300 (1) of Code of Criminal Procedure, cannot be invoked.
25. This issue propped up before Hon'ble Apex Court in the case titled "Sangitaben Mahindrabhai Patel vs. State of Gujarat & Anr" reported as III (2012) SLT 354, wherein the precedent relied upon by Ld.Counsel for revisionist ie. Kolla Veera Raghav Rao (supra), was also Page 15 of 20
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considered by Hon'ble Apex Court. In the said case, Hon'ble Apex Court, took into consideration the constitutional as well as statutory right so prescribed and had held as under: In view of the above, the law is well settled that in order to attract the provisions of Articles 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.PC or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
26. It is apparent that the above mentioned ratio of Hon'ble Apex Court squarely applies to the fcts of the present case. Whereas, the judgement relied upon by Ld.Counsel for revisionist ie. Kolla Page 16 of 20
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Veera's Case (supra) does not apply to the facts of present case.
27. There may be some overlapping facts in the initial prosecution against the revisionists for offence under section 61 of Punjab Excise Act and the subsequent complaint case filed by the respondent Drug Inspector, for proceeding against them for offences under section 33 E.E.C.(a) (i) &
(b) read with section 33 (I) of Drugs and Cosmetics Act 1940. However, the ingredients of both the offences are entirely different.
28. In view thereof, the subsequent complaint case is not barred by section 300 (1) of Code of Criminal Procedure.
29. Another attempt was made by Ld.Counsel for revisionist to challenge the impugned order, wherein it is urged that Ld.Trial Court has failed to take into consideration the doctrine of Page 17 of 20
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issue estopple or resjudicata.
30. This contention of Ld.Counsel for the revisionist to my mind, is also devoid of any merits as the doctrine of issue estopple or resjudicata is different and distinct from the doctrine of double jeopardy. This principle does not prevent the trial of any offence, but only precludes evidence being led during the course of subsequent trial, in order to prove a fact in issue, as regards which, evidence has already been led in the previous trial and a specific finding has been recorded by the Court at an earlier criminal trial. It is evident from the annexures annexed alongwith the revision petition on behalf of the revisionists, that no specific finding has been recorded by the Court in the earlier criminal trial which was initiated against the revisionist, for an entirely different offence, than the one for which the present complaint case has been filed by the respondent.
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31. In view of the above discussion, I do not find any infirmity in the impugned order passed by Ld.Metropolitan Magistrate dated 12.09.2011, as Ld.Trial Court has aptly considered all these aspects in the said order and has rightly dismissed the submissions advanced before it by the revisionists herein.
32. Consequently, there are no grounds in the present revision petition for interfering with the impugned order dated 12.09.2011. Revision Petition accordingly stands dismissed.
33. Copy of this order be kept in file of the revision petition.
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34. The Trial Court record along with copy of this order be sent to the concerned Court.
35. The revision file be consigned to Record Room.
Announced in open court on 25th Day of August, 2015.
(KANWAL JEET ARORA) ADDL. SESSIONS JUDGE03 :
NORTH WEST, ROHINI COURTS, NEW DELHI.
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