Orissa High Court
Kanhaiya Lal Agrawal & vs State Of Odisha on 8 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 943 of 2020
Kanhaiya Lal Agrawal & .... Petitioners
Others
Mr. T. Nanda, Advocate
-Versus -
State of Odisha .... Opposite Party
Mr. P. Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER_
08.12.2021
Order No.
1.
This matter is taken up through hybrid mode.
04.
2. The petitioners in the present application filed under
Section 482 Cr.P.C. seek to challenge the order dated
19.10.2019 passed by learned S.D.J.M., Balangir in 2(c)CC
No. 1 of 2016, whereby cognizance of the offence under
Section 27(d) of the Drugs and Cosmetics Act, 1940
(hereinafter referred to the "Act") was taken and summons was
issued.
3. The brief facts of the case are that the Drug Inspector,
Bolangir Range, Bolangir conducted a raid on the petitioners'
pharmaceutical firm on 24.02.2016 and during such raid, it
was found that the petitioners had manufactured two drugs
without prior approval of the licencing authority. The stock of
the said drugs was seized after observing the formalities and
on the prima facie allegation that the accused persons had
violated Section 18(a)(vi) of the Act read with Condition-3 of
Manufacturing Licenses in Form-25 granted under Rule 71 of
the Drugs Rules, 1945, the prosecution report was submitted
on 25.02.2016 in the Court of learned S.D.J.M., Bolangir.
Long after i.e., on 18.10.2019 the Drug Inspector submitted
sanctioned P.R. on the basis of which learned S.D.J.M. vide
order dated 19.10.2019, took cognizance of the offence under
Section-27 (d) of the Act, which is impugned in the present
application.
4. Heard Mr. T. Nanda, learned counsel for the
petitioners and Mr. P. Tripathy, learned Addl. Standing
Counsel for the State.
5. It is submitted by Mr. Nanda that the order of
cognizance is bad in law since the same is barred by limitation.
Referring to the provision under Section 27(d) of the Act, it is
submitted by Mr. Nanda that the offence being punishable
with imprisonment for a term of one year which may be
extended to two years, the period of limitation for taking
cognizance as per Section 468(2)(c) of Cr.P.C. is three years. It
is further submitted that there is no explanation for the delay in
submitting the sanctioned PR and therefore, the learned
S.D.J.M., committed manifest error in mechanically accepting
such report and taking cognizance of the alleged offences.
6. Mr. P. Tripathy, on the other hand, referring to the
provisions of Section 470 of Cr.P.C. submits that Sub-Section
(3) thereof saves the limitation since the period was spent in
obtaining sanction and therefore, no illegality whatsoever has
been committed by learned S.D.J.M., Bolangir.
7. In order to appreciate the rival contentions, it is apt to
refer to the relevant provision of the Drugs and Cosmetics Act,
1940. Section 27(d) of the Act reads as under:
27. Penalty for manufacture, sale, etc., of drugs
in contravention of this Chapter.--Whoever,
himself or by any other person on his behalf,
manufactures for sale or for distribution, or sells,
or stocks or exhibits or offers for sale or
distributes,--
xx xx xx
(d) any drug, other than a drug referred to in
clause (a) or clause (b) or clause (c), in
contravention of any other provision of this
Chapter or any rule made thereunder, shall be
punishable with imprisonment for a term which
shall not be less than one year but which may
extend to two years and with fine which shall not
be less than twenty thousand rupees:
Provided that the Court may for any adequate and
special reasons to be recorded in the judgment
impose a sentence of imprisonment for a term of
less than one year.
Further, Section 36-AD of the Act reads as under:
36-AD. Application of Code of Criminal
Procedure, 1973 to proceedings before Special
Court.--(1) Save as otherwise provided in this Act,
the provisions of the Code of Criminal Procedure,
1973 (2 of 1974)(including the provisions as to
bails or bonds), shall apply to the proceedings
before a Special Court and for the purposes of the
said provisions, the Special Court shall be deemed
to be a Court of Session and the person conducting
the prosecution before the Special Court, shall be
deemed to be a Public Prosecutor:
Provided that the Central Government or the State
Government may also appoint, for any case or
class or group of cases, a Special Public
Prosecutor.
(2) A person shall not be qualified to be appointed
as a Public Prosecutor or a Special Public
Prosecutor under this section unless he has been in
practice as an advocate for not less than seven
years, under the Union or a State, requiring
special knowledge of law.
(3) Every person appointed as a Public Prosecutor
or a Special Public Prosecutor under this section
shall be deemed to be a Public Prosecutor within
the meaning of clause (u) of Section 2 of the Code
of Criminal Procedure, 1973 (2 of 1974) and the
provisions of that Code shall have effect
accordingly.
A bare reading of the above provision makes it clear that the
provisions of Cr.P.C. shall apply to the proceedings before
Special Court. There is thus, no doubt as regards applicability
of the provisions relating to limitation under the Code of
Criminal Procedure under Chapter-XXXVI.
8. Though it is submitted that the delay was occasioned
due to obtaining sanction, nothing whatsoever has been put
forth before this Court as to what caused such inordinate delay
in obtaining sanction which, needless to say is an
administrative order. It is however, observed that the learned
S.D.J.M. has not considered these aspects at all and appears to
have taken cognizance of the alleged offence, rather
mechanically. Since these are important aspects affecting the
rights of the parties, it is incumbent upon the learned S.D.J.M.,
to take into account law involved viz-a-viz the facts of the case
and thereafter pass orders in accordance with law.
9. In such view of the matter, this Court is inclined to
allow the CRLMC. The impugned order is set aside. The
matter is remitted to the Court below to pass orders afresh after
taking into consideration the provisions of law viz-à-viz the
facts of the case as discussed hereinbefore.
10. With these observations, the CRLMC is disposed of.
11. Issue urgent certified copy as per rules.
(Sashikanta Mishra)
Judge
A.K. Rana
