HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 23.9.2015 Delivered on 02.11.2015 Court No. - 36 Case :- APPLICATION U/S 482 No. - 22832 of 2015 Applicant :- Amit Mittal And Another Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- Govt. Advocate With Case :- CRIMINAL REVISION No. - 548 of 2011 Revisionist :- Amit Mittal And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Mithilesh Kumar Shukla,Avanish Kumar Shukla Counsel for Opposite Party :- Govt. Advocate Hon'ble Ramesh Sinha,J.
1. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 31.3.2011 passed by Additional Sessions Judge, Court No. 12, Agra in S.T. No. 230 of 2011, under Sections 419, 420, 274, 275, 276 I.P.C. and 18/27 Drugs and Cosmetics Act, P.S. Kotwali Agra, District Agra. Earlier to the filing of the aforesaid 482 Cr.P.C. Application, the applicants also filed the revision against the judgment and order dated 6.1.2011 passed by Special C.J.M., Agra in Criminal Case No. 825 of 2010 arising out of Case Crime No. 80 of 2010 (State Vs. Sumit Mittal and another), under Sections 274, 275, 276, 419, 420 I.P.C. and 18/27 Drugs and Cosmetics Act, P.S. Kotwali, District Agra.
2. The brief facts of the case are that on 18.3.2009, the opposite party no. 2 Jagvir Singh posted as Drug Inspector along with Assistant Drug Controller jointly inspected the shop of the applicant no. 1 Amit Mittal and during inspection the licensee of the shop Amit Mittal was not present and his brother applicant no. 2 Sumit Mittal was found sitting in the shop and selling the medicine. The applicant no. 2 Sumit Mittal could not produce the sale / purchase records of the drugs. The sample were collected for chemical analysis. During inspection, the applicant no. 2 signed all the documents. As per report of the public analysis, the sample was found spurious as does not confirm to I.P. in respect of identification, in pursuance of the aforesaid report a complaint against the applicants were instituted in the Court of C.J.M., Agra on 11.3.2010 under Section 18/27 Drug and Cosmetics Act, 1940 and Rules 1945. The applicant no. 1, on 23.6.2009 had given a detail application before the Drug Inspector, Agra in which he had stated that he had purchased the said medicine from Bhavna Medicos situated at B-25 Preet Vihar, Meerut. The other sample which had been sent for examination was found to be sub-standard and as per report of the public analysis dated 30th June, 2009, it was reported that "the same does not confirm in respect of I.P. ASSAY." The applicants were summoned on 11.3.2010 in Complaint Case No. 313 of 2010 lodged by opposite party no. 2 under Section 18/27 Drug and Cosmetics Acts and in which they have got themselves bailed out and the applicants are facing trial in the said case.
3. In the meantime, on similar allegations a first information report was also lodged against the applicants on 6.6.2010 which was registered as Case Crime No. 80 of 2010, under Sections 419, 420, 274, 275, 276 I.P.C. and 18/27 Drug and Cosmetics Act. The Investigating Officer recorded the statement of the informant / complainant under Section 161 Cr.P.C. and other witnesses including the Assistant Drug Controller and thereafter, on the basis of evidence collected during the course of investigation submitted charge sheet against the applicants under Sections 419, 420, 274, 275, 276 I.P.C. and 18/27 Drug and Cosmetics Act, P.S. Kotwali, District Agra. Thereafter, charges were framed against the applicants for the aforesaid offence on 31.3.2011 by the Additional Sessions Judge, Court No. 12, Agra. The statement of P.W. 1 has been examined till date and as examination in chief has been recorded and the evidence of the said witnesses has not been concluded as yet.
4. Heard Sri Gaurav Kakkar, learned counsel for the applicants and Sri Mithlesh Kumar Shukla, learned counsel for the revisionist in the aforesaid revision as well as Sri Imran Ullah, learned Additional Advocate General assisted by Sri Nikhil Chaturvedi, learned AGA for the State.
5. It has been argued by the learned counsel for the applicants that a complaint under Section 18/27 Drug and Cosmetics Act had already been filed against the applicants for which they are already facing trial and in view of the same there was no occasion for the charge have been framed under Section 18/27 Drug and Cosmetics Act, in the present case which has been initiated on the basis of F.I.R. specially keeping in view of the fact that the offence under Drug and Cosmetics Act provides filing of complaint not of an F.I.R.
6. Learned counsel for the applicants pointed out that the applicants had earlier approached this Court and filed a Writ Petition No. 10550 of 2010 for quashing of the F.I.R. as well as Application U/S 482 Cr.P.C. No. 33359 of 2010 for quashing of the entire proceeding of Case No. 826 of 2010 and also Criminal Revision No. 548 of 2011 out of which the writ petition had become infructuous and charge sheet has been filed in the writ petition. Moreover, the 482 Cr.P.C. Applications was disposed of by this Court with direction to the Special Chief Judicial Magistrate, Agra that the applicants should have filed application before him within three weeks from today along with certified copy of this order taking all the grounds which have been raised by him before this Court. Thereafter, the applicants had filed the aforesaid Criminal Revision before this Court in which an interim order was passed that no coercive action shall be taken against the applicants in the present case vide order dated 21.2.2011.
7. Learned counsel for the applicants next argued that during the course of investigation, no charge against the applicants could even be remotely made out under Section 419 I.P.C. and there is no whisper in the entire evidence that the applicants cheated any person by personation and in view of the same charge framed against the applicants under Section 419 I.P.C. has no basis and liable to be set aside. Similarly, he urged that there is nothing in the F.I.R. or evidence collected by the I.O. to indicates that the applicants dishonestly induced any customer by practicing deception and in view of the same no prima facie case against the applicants would be made out under Section 420 I.P.C. hence on this count also the charge against the applicants for the said offences is absolutely illegal and unsustainable in the eyes of law. It is further argued that the applicants are not manufacturer of medicine (drugs) which has been recovered or sent for examination after sampling they are only the retailers, who had purchased the stock of medicine from Bhavna Medicos Meerut hence, there is not an iota of evidence on record to show that the applicants have been involved in adulteration of any drug or medical preparation. Thus, no charge against the applicants can be maintained under Section 274 I.P.C. He further submitted that there is no evidence collected by I.O. to prove that the applicants have knowledge about the medicine being adulterated or sub-standard quality and in view of the same the basic ingredients of Section 275 I.P.C. does not stand spelled out against the applicants thus the charge under the said offence is wholly illegal and unwarranted in the eyes of law. He vehemently submitted that there is also no evidence on record to show that the applicants knowingly were selling or exposing for sale any drug or medical preparation as a different drug or medical preparation in view of which there appears to be no justification for the trial court to have been framed charge against the applicants under Section 276 I.P.C.
8. So far as, delay regarding challenge the impugned order of framing charge is concerned, they were not properly advised for challenging the said charge before this Court. Hence, merely delay in filing the present application against the impugned order does not take away the right of the applicant to challenge the same before this Court. In support of his argument, he has placed reliance on the judgement of the Delhi High Court reported in the case of Gurdeep Singh Sudan Vs. State LAW (DLH)-2013-7-424. He has drawn the attention towards para 8 of the said judgement which is as follows :-
8. It is equally true that a party should not remain complacent or reckless while challenging any order of the subordinate court and any unexplained delay or ambivalence on the part of such a party, in the given facts of the case can debar his remedy under Section 482 Cr.P.C. But in any case the ultimate test which must prevail upon the courts is the principle of ex debitio justitiae. The powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of such powers require great caution in its exercise and the same must be exercised to impart real and substantial justice, for the administration of which alone the Court exists. In a case where the Court is satisfied that there is a great miscarriage of justice or abuse of the process of the Court is writ large on the very face of it or there is a bizarre violation of any statutory provision in passing any order and there is no specific remedy provided under law to challenge such an order or there is a need for immediate intervention to secure the ends of justice, in such extraordinary circumstances, it is but the duty of the Court to interfere in the exercise of inherent powers vested under Section 482 of the Code of Criminal Procedure or in the exercise of extraordinary power of judicial superintendence vested under Article 227 of the Constitution of India.
However, intentions of the legislature behind engrafting this special provision in the statute cannot be defeated. The court examining the delay while deciding a petition under Section 482 Cr.P.C must examine and weigh the propensity of the offence or wrong been done to any party. Here the principles of natural justice would come into play. The interest of justice demands that the court should protect the oppressed and punish the offender. Therefore, if any in discrepancy is noticed in the order passed by the lower court, the high court is duty bound to rectify and decipher the error by directing certain necessary steps which would be appropriate for a just decision. The ends of justice are higher than the ends of law and justice must reign supreme. Justice has to be done to all the contending parties and its dispensation by the courts must be based on consideration of the entirety of facts and circumstances of case. A person must invoke the provision of Section 482 Cr.P.C within a reasonable period of time. The law of limitation prescribes for filing of an appeal within 60 days and revision within 90 days, but what would constitute reasonable period of time would vary from case to case and no straight-jacket formula can be laid down in this regard when remedy under 482 Cr.P.C. is availed and the ultimate parameter is to do justice between the parties and it is for the court to see in the facts of each case whether to invoke such powers, irrespective of the stage of the case."
9. In support of the argument that the charges which has been framed against the applicants also suffers from error and there is misjoinder of charges of framing charge against the applicants by the trial court which is liable to be quashed by this Court and in support of his argument he has placed reliance of the judgement of Apex Court in the Case of Mohan Singh Vs. State of Bihar Law(SC)-2011-8-66.
10. Learned Additional Advocate General has strongly refuted the arguments of learned counsel for the applicants and submitted that the proceedings which has been instituted on the basis of F.I.R. and charges framed against the applicants by the trial court, cannot be set aside by this Court simply because the complaint under Section 18/27 Drugs and Cosmetics Act has been filed and proceedings against the applicants before the Magistrate is going on in view of Section 32(3) of Drugs and Cosmetics Act. In support of this contention he has placed reliance of the judgement of Apex Court passed in S.L.P. (Crl.) Nos. 3411-3412 of 2009 passed on 1st December, 2010 in the case of The Institute of Chartered Accountants of India Vs. Vimal Kumar Surana and another. He submitted that the basic argument of learned counsel for the applicants is that the applicants cannot be tried for the same offence on the basis of charge sheet as well as on the complaint which has been filed by the opposite party no. 2 is not legally sustainable. He next submitted that so far as the argument of learned counsel for the applicant that no offence has been disclosed against the applicants under Sections 274, 275, 419, 420 I.P.C. are concerned, it is also wholly unfounded as the order of framing charge by the trial court categorically spelled out of the offence which has been committed by the applicants. Hence, the charges which have been framed against the applicants is in accordance with law and no interference is called for by this Court and the petition is liable to be dismissed.
11. Considered the submissions of learned counsel for the parties and perused the record. So far as the first submission of learned counsel for the applicants is concerned has no substance in view of Section 32(3) of Drugs and Cosmetics Act quoted herein below : -
"32 (3)-Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."
12. Thus, in the instant case, the allegation against the applicants is of committing other offences under Sections 419, 420, 274, 275, 276 I.P.C. besides the offence under Section 18/27 of the Drugs and Cosmetics Act, hence, there can be no bar of the prosecution of the applicants in pursuance of the charges framed by the trial court in a case initiated on the basis of police report.
13. Moreover, in view of the judgement of of Apex Court in the case of The Institute of Chartered Accountants of India Vs. Vimal Kumar Surana and another (supra), the Supreme Court has dealt with the said issue and in this regard para 16 to 21 are relevant which are quoted hereinbelow :-
"16. In T.S. Baliah's case, the Court considered the question whether the appellant could be simultaneously prosecuted under Section 177 IPC and for violation of Section 52 of the Income Tax Act, 1922. After noticing Section 26 of the General Clauses Act, the Court held:
"A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."
17. In State of Bombay v. S.L. Apte (1961) 3 SCR 107, the question that fell for consideration was whether in view of an earlier conviction and sentence under Section 409 IPC, a subsequent prosecution for an offence under Section 105 of Insurance Act, 1935, was barred by Section 26 of the General Clauses Act and Article 20(2) of the Constitution. This Court answered the question in following words:
"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. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. . . .
... Though Section 26 in its opening words refers to `the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked."
18. In V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467, this Court considered the question whether the acquittal of an accused charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act, 1962 create a legal bar to the subsequent prosecution of the said accused under Section 85 of the Gold (Control) Act, 1968. The Gujarat High Court answered the question in affirmative. This Court reversed the order of the High Court and observed:
"It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi-finished form. In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters. Mere possession of gold of purity not less than 9 carats in any unfinished or semi-finished form would be an offence under the Gold Control Act. It is therefore stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act.
.........In the present case the concerned Respondents could be found guilty of both the offences in the context of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to confiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of at least 9 carats. He would have violated the provisions of "both" the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It is not as if in case he was found guilty of an offence under the Customs Act, he could not have been found guilty under the Gold (Control) Act or vice versa. Upon being found guilty of both the offences the court may perhaps impose a concurrent sentence in respect of both the offences but the court has also the power to direct that the sentence shall run consecutively. There is therefore no question of framing of an alternative charge one, under the Customs Act, and the other, under the Gold (Control) Act. If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act. Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr.P.C. at the time of the former proceedings. The submission urged in the context of Section 403(1) cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236."
19. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, the question considered by the Court was whether the complaint lodged by the competent officer alleging commission of offence under Section 9(1) read with Section 51 for killing elephants and removing its husk was maintainable notwithstanding the pendency of police investigation for an offence under Section 447, 429 and 479 read with Section 54 and 39 of the Act. After adverting to the relevant provisions, this Court held:
"What emerges from a perusal of these provisions is that cognizance of an offence under the "Act" can be taken by a court only on the complaint of the officer mentioned in Section 55. The person who lodged complaint dated June 23, 1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210(1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable.
We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 IPC on the one hand and Section 9(1) read with Section 50(1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this Act" in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also.
The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutary principles that permeate penology and reflected in analogous provisions of Section 26 of General Clauses Act, 1897; Section 71 IPC; Section 300 CrPC 1973, and constitutionally guaranteed under Article 20(2) of the Constitution. Section 26 of the General Clauses Act, 1897 provides:
"26. Provision as to offences punishable under two or more enactments.--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re- prosecution after acquittal, a protection against re- prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by "same offence". The principle in American law is stated thus: "The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if `each provision requires proof of an additional fact which the other does not' (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States)" The expression "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence". Friedland in Double Jeopardy (Oxford 1969) says at p. 108:
"The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are `substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible...."
In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Supreintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827) "The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."
20. In State of Rajasthan v. Hat Singh (2003) 2 SCC 152, the Court considered the question whether the High Court was right in taking the view that the respondent could have been prosecuted either under Section 5 or Section 6(3) of the Rajasthan Sati (Prevention) Act, 1987 and not under both the sections. The High Court had ruled in favour of the respondent. This Court reversed the judgment of the High Court, referred to Article 20(2) of the Constitution, the judgments in Maqbool Hussain v. The State of Bombay (supra), State of Bombay v. S.L. Apte (supra) and observed:
"The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides:
"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Section 300 CrPC provides, inter alia,--
"300. (1) 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 sub-section (1) of Section 221, or for which he might have been convicted under sub- section (2) thereof."
Both the provisions employ the expression "same offence"."
The Court then proceeded to analyze the relevant sections of the Act and held that the offences under Section 5 and 6(3) of the Act were distinct and there was no bar against prosecution of the respondent under Section 5 even though his prosecution under Section 6(3) had failed.
21. In view of the above discussion, the argument of the learned senior counsel appearing for the respondent that the Act is a special legislation vis- `-vis IPC and a person who is said to have contravened the provisions of sub-section (1) of Section 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the IPC, which found favour with the High Court does not commend acceptance."
14. Hence, in view of law laid down by the Apex Court as discussed above, the contention of the learned counsel for the applicants is not sustainable in the eyes of law, particularly taking note of the provision of Section 32(3) of the Drugs and Cosmetics Act read with Section 26 of General Clauses Act.
15. So far as arguments of learned counsel for the applicants, no offence under Sections 419, 420, 274, 275, 276 I.P.C. is made out and against the applicants is also not convincing as the trial court has prima facie found evidence against the applicants on the basis of police report submitted against them has rightly framed charges against them. Hence, no interference is required by this Court in the order of framing charge against the applicants in exercise of its inherent power under Section 482 Cr.P.C.
16. In view of the above, the impugned order dated 31.3.2011 challenged in the present 482 Cr.P.C. Application as well as the impugned order dated 6.1.2011 challenged in the aforesaid connected criminal revision do not call for any interference by this Court as the same do not suffer from any illegality or infirmity. Hence, the prayer for quashing of the same is hereby refused.
17. However, the trial court is directed to expedite the trial and conclude the same preferably within the period of six months from the date of production of the certified copy of this order before the trial court, if there is no legal impediment.
18. With the aforesaid directions the 482 Cr.P.C. application is disposed of and the aforesaid criminal revision which has been filed by the applicants stands dismissed.
Order Date :- 2.11.2015 Manoj