Sikkim High Court
Union Of India vs M/S Mukul Enterprises And Anr on 22 May, 2024
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
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DIVISION BENCH: THE HON'BLE MRS JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No. 01 of 2023
in
CRL. L.P. No. 7 of 2023 (Filing No.)
Union of India,
Represented by:
Mr. Bikramaditya Chowdhury, Drugs Inspector,
Central Drugs Standard Control Organisation (CDSCO),
East Zone.
..... Applicant
versus
1. M/s Mukul Enterprises,
13, Rifle Range Road,
(Near Bondel Gate Flyover),
Ground Floor, Kolkata,
P.O. Ballygunge,
Pin 700019.
2. Md. Mohdul Islam,
Proprietor of M/S Mukul Enterprises,
13, Rifle Range Road,
(Near Bondel Gate Flyover),
Ground Floor, Kolkata,
P.O. Ballygunge,
Pin-700019 ..... Respondents
Application under Section 5 of the Limitation Act, 1963.
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Appearance:
Ms Sangita Pradhan, Deputy Solicitor General of India with Ms Purnima
Subba and Ms Natasha Pradhan, Advocates for the applicant.
Mr. Sudesh Joshi, Advocate for the respondents.
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Date of hearing : 6th May, 2024
Date of judgment : 22nd May, 2024
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I.A. NO. 1 of 2023 in Crl. L.P. No.7 of 2023 2
Union of India vs. M/s Mukul Enterprises & Another
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The Union of India (Applicant) has moved this
application under Section 5 of the Limitation Act, 1963 seeking
condonation of delay of 54 days in filing the Leave to Appeal under
Section 378(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.).
The period of 54 days delay has been computed by the Applicant in
terms of Section 378(5) of the Cr.P.C. on the ground that the
complainant was a public servant.
2. The application states that by virtue of Section 378(5)
Cr.P.C., the Applicant had time till 30.11.2022 to file the appeal but
was filed on 24.1.2023 with a delay of 54 days. It is stated that the
Applicant came to know about the judgment on acquittal on
21.6.2022 when the conducting counsel telephonically informed the
Applicant. Thereafter, as mandated by rule 50 of the Drugs Rule,
1945, the Applicant sought permission through letter dated
28.6.2022 from his higher authorities, i.e., the Drugs Controller
General of India, for necessary direction. It is stated that permission
to challenge the impugned judgment was given vide letter dated
17.10.2022 which was received by the Applicant on 31.10.2022.
Thereafter, it is stated by letter dated 1.11.2022 that a request was
made to the Ministry of Law and Justice for engagement of counsel
for filing appeal and the Ministry vide letter dated 7.11.2022
informed the Applicant that the Deputy Solicitor General of India
may be contacted for filing the appeal. The Deputy Solicitor General
Union of India vs. M/s Mukul Enterprises & Another
of India was thereafter telephonically informed who requested the
applicant to forward the entire case papers for perusal and further
course of action. The applicant vide letter dated 11.11.2022
forwarded the case papers to the Deputy Solicitor General of India
who received it on 23.11.2022. On 1.12.2022, the Deputy Solicitor
General of India had a conference with the Applicant where it was
revealed that the documents sent by post were incomplete and
accordingly on 5.12.2022, the case papers were again sent to her.
The Deputy Solicitor General of India was, however, out of station
since 14.12.2022 for the yearly death rites of her father-in-law at
Siliguri. The Deputy Solicitor General of India had to proceed to
Delhi on 25.12.2022 for an official conference. Although the
documents sent on 5.12.2022 reached the address of the Deputy
Solicitor General of India, it could not be received, as the entire
family was out of station. It was only on 8.01.2023 that the
documents could be collected from her neighbour. As the Deputy
Solicitor General of India was engaged only on 1.12.2022, she
applied for certified copy of the judgment on 5.12.2022 and
received it on 14.12.2022. After receiving the case papers, the
Deputy Solicitor General took some time to prepare the appeal and
the connected applications. During this period, the Deputy Solicitor
General of India was undergoing treatment for back pain and
cervical spondolysis. Her child was also unwell and undergoing
treatment at Siliguri. In the circumstances, she could not prepare
the appeal till 18.01.2023. The draft appeal was sent to the
Applicant on 21.01.2023 for approval which was received and
Union of India vs. M/s Mukul Enterprises & Another
forwarded to her on 23.01.2023. Ultimately the appeal was filed on
24.01.2023.
3. The application is further supported by affidavits dated
28.07.2023 and 18.04.2024. According to the learned Deputy
Solicitor General of India, paragraphs 4 and 5 of the affidavit dated
18.04.2024 summarises the reasons for the delay. Paragraphs 4 and
5 seek to explain the grounds for delay as narrated in the
application in greater detail.
4. The respondents did not file any response to the
Application or the two affidavits in support thereof. Therefore, the
assertions made in the application and the two affidavits remain
unassailed. Mr. Sudesh Joshi, learned counsel for the respondents,
sought to contest the application for condonation of delay on the
ground that the Applicant fails to explain the delay on a day to day
basis. Although, the application seeks to cover up the delay on the
personal medical grounds of the counsel, the records do not fully
support this contention. It is also submitted that Section 5 of the
Limitation Act, 1963 would not be applicable as Section 378(5)
Cr.P.C. provides a timeline to prefer leave to appeal. It is submitted
that sub-clause (5) provides that no application under sub-section
(4) for the grant of special leave to appeal from an order of acquittal
shall be entertained by this Court after the expiry of six months only
where the complainant is a public servant and since in this case the
applicant is the Union of India and not the Drug Inspector only sixty
days is provided for filing the appeal as per the second part of sub-
clause 5. In support of his contention, Division Bench judgments of
Union of India vs. M/s Mukul Enterprises & Another
the Delhi High Court and Punjab and Haryana High Court, i.e.,
Municipal Corporation of Delhi vs. Ramesh Chand and Haryana
State Board for Prevention and Control of Water Pollution vs. M/s
Jai Bharat Woolen Finishing Works, Panipat and Others , were
relied upon.
5. In response, the learned Deputy Solicitor General of
India relied upon a Single Bench judgment of the Karnataka High
Court in Serdia Pharmaceuticals (India) Private Limited, Mumbai
vs. Union of India, Bangaluru3.
6. The application under Section 5 of the Limitation Act, 1963,
the application under Section 378(3) Cr.P.C. for grant of leave to
appeal to challenge the impugned judgment and the appeal under
Section 378(2) Cr.P.C. have all been filed by the Union of India
represented by Mr. Bikramaditya Chowdhury, Drug Inspector,
CDSCO. It is to be noticed that the Applicant has sought "leave" to
appeal under Section 378(3) Cr.P.C. instead of "special leave" to
appeal under Section 378(5) Cr.P.C. However, in the application
under Section 5 of the Limitation Act, 1963, while computing the
period of limitation, the Applicant has sought condonation of delay
of 54 days computed under Section 378(5).
7. Section 378 Cr.P.C. for convenience is extracted
hereinbelow:-
1987 SCC OnLine Del 391
1991 SCC OnLine P&H 1046
AIRONLINE 2021 KAR 308
Union of India vs. M/s Mukul Enterprises & Another
"378. Appeal in case of acquittal.-- (1) Save as
otherwise provided in sub-section (2) and subject to the
provisions of sub-sections (3) and (5),--
(a) the District Magistrate may, in any case, direct
the Public Prosecutor to present an appeal to the
Court of Session from an order of acquittal
passed by a Magistrate in respect of a
cognisable and non-bailable offence;
(b) the State Government may, in any case, direct
the Public Prosecutor to present an appeal to the
High Court from an original or appellate order of
an acquittal passed by any Court other than a
High Court not being an order under clause (a)
or an order of acquittal passed by the Court of
Session in revision.
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi Special
Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency
empowered to make investigation into an offence under any
Central Act other than this Code, the Central Government may
subject to the provisions of sub-Section (3), also direct the Public
Prosecutor to present an appeal-
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court from an original or appellate
order of an acquittal passed by any Court other
than a High Court not being an order under
clause (a) or an order of acquittal passed by the
Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or
sub-section (2) shall be entertained except with the leave of the
High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an application
made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six months,
where the complainant is a public servant and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4)
for the grant of special leave to appeal from an order of acquittal
is refused, no appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2)."
8. We are of the view that the issue sought to be raised by
the learned counsel for the respondents is no longer res integra and
it has been well settled by the Supreme Court. In State (Delhi
Administration) vs. Dharampal4, a complaint was filed under
(2001) 10 SCC 372
Union of India vs. M/s Mukul Enterprises & Another
Section 20 of the Prevention of Food Adulteration Act against the
respondent. The respondent who was convicted after a trial and
sentenced, filed an appeal. The Sessions Judge acquitted the
respondent. Against this acquittal, the State (Delhi Administration)
filed an appeal to the High Court of Delhi. The High Court dismissed
the appeals on two grounds, one of them being that the appeals
were barred by limitation as they were not filed within a period of
sixty days. The Supreme Court examined this ground in the appeals
against the Delhi High Court's judgment and held the contention to
be untenable. The submission made before the High Court was that
the appeal had not been filed by a public servant and therefore the
limitation for filing such an appeal was sixty days. Before the
Supreme Court, it was submitted by a counsel that the appeals
should have been filed within ninety days from the date of the order
as provided in Article 114 of the Limitation Act, 1963. The Supreme
Court examined Section 417 as it stood in the Criminal Procedure
Code, 1898 as well as Section 378 of the Code of Criminal
Procedure, 1973. On such examination, it was held:-
"19. The second question had only been urged before the High
Court. The submission made before the High Court was that the
appeal had not been filed by a public servant and therefore the
limitation for filing such an appeal was 60 days. This submission
found favour with the High Court. In all fairness, to counsel
appearing for the respondents before us, it must be stated that
such a contention was not canvassed before this Court, as it is
clearly an untenable contention. Before us it was submitted by Mr
Lalit, that the appeals should have been filed within 90 days from
the date of the order as provided in Article 114 of the Limitation
Act.
.........................................................................
25. A comparison of Section 378 with the old Section 417 shows
that whilst under the old section no application for leave to
appeal had to be made by the State Government or the Central
Government, now by virtue of Section 378(3) the State
Government or the Central Government have to obtain leave of
the High Court before their appeal could be entertained. Sub-
Union of India vs. M/s Mukul Enterprises & Another
section (4) of Section 378 is identical to sub-section (3) of
Section 417. Thus a complainant desirous of filing an appeal
against acquittal must still obtain special leave. Thus, Section
378 makes a distinction between an appeal filed by the State
Government or the Central Government, who only need to obtain
"leave", and an appeal by a complainant who needs to obtain
"special leave". The limitation provided in sub-section (5) is only
in respect of applications under sub-section (4) i.e. application
for special leave to appeal by a complainant. A complainant may
be either a public servant or a private party. If the complainant is
a public servant then the period of limitation for an application
for special leave is 6 months. If the complainant is a private
party then the period of limitation for an application for special
leave is 60 days. The periods of 6 months and/or 60 days do not
apply to appeals by the State Government [under sub-section
(1)] or the Central Government [under sub-section (2)]. Appeals
by the State Government or the Central Government continue to
be governed by Article 114(a) of the Limitation Act. In other
words, those appeals must be filed within 90 days from the date
of the order appealed from. Needless to state, if there is a delay
in filing an appeal by the State Government or Central
Government it would be open to them to file an application under
Section 5 of the Limitation Act for condonation of such delay.
That period can be extended if the court is satisfied that there
was sufficient cause for not preferring the appeal within the
period of 90 days. The High Court was thus wrong in concluding
that the appeals had to be filed within 60 days as provided in
Section 378(5).
26. It must also be noted that sub-section (6) of Section 378
is identical to sub-section (5) of Section 417. Thus under Section
378 also the State Government cannot maintain an appeal if
special leave to appeal is refused to the complainant. In this
behalf there is no change. Section 417(1) specifically provided
that it was "subject to the provisions of sub-section (5)". Section
378(1) similarly provides that it is "subject to sub-sections (3)
and (5)". Sub-section (3) is the newly added provision which now
provides that an appeal by the State or Central Government
cannot be entertained without leave of the High Court. However
the reference to sub-section (5) in sub-section (1) is clearly an
inadvertent mistake. As pointed out above sub-section (5) of
Section 378 applies only to application for special leave by a
complainant. Sub-section (5) of Section 378 has no application to
an appeal by the State Government or to an application for leave
under sub-section (3). What the legislature clearly intended was
to continue to provide that an appeal by the State Government
would not be maintainable if special leave to appeal had been
refused to a complainant. Thus sub-section (1) of Section 378
was to be subject to provisions of sub-section (6) and not sub-
section (5) as inadvertently provided therein. Inadvertently the
figure (5) in Section 417(1) was continued, without noticing that
now under Section 378 the relevant provision was sub-section
(6). In our view it is clear that the figure (5) in Section 378(1) is
inadvertently retained. Thus in Section 378(1) the figure (6) will
have to be read in place of the figure (5)."
emphasis supplied
9. In Mohd. Abaad Ali vs. Directorate of Revenue Prosecution
Intellegence5, the Supreme Court held that there is no exclusionary
2024 SCC OnLine SC 162
Union of India vs. M/s Mukul Enterprises & Another
provision under Section 378 Cr.P.C. or at any other place in the
Code. The benefit of Section 5 read with Sections 2 and 3 of the
Limitation Act, 1963 can therefore be availed of in an appeal against
acquittal. There is no force in the contentions raised by the
appellants as regards non-application of Section 5 of the Limitation
Act, 1963. Thus, the contention raised by Mr. Sudesh Joshi of the
non-application of Section 5 of the Limitation Act, 1963 in view of
the timeline provided in Section 378(5) Cr.P.C. is negated.
10. In view of the pronouncement of the Supreme Court in
Dharampal (supra), we are of the considered view that the period of
six months and/or sixty days do not apply to appeals by the State
Government [under sub-section (1)] or the Central Government
[under sub-section (2)]. Appeals by the State Government or the
Central Government continue to be governed by Article 114(a) of
the Limitation Act, 1963. In other words those appeals must be filed
within ninety days from the date of the order appealed from. If
there is a delay in filing an appeal by the State Government or the
Central Government, it would be open to them to file an application
under Section 5 of the Limitation Act, 1963 for condonation of such
delay and the period can be extended if the Court is satisfied there
was sufficient cause for not preferring the appeal within a period of
ninety days. We are, thus, also of the view that the Applicant while
preferring an application for condonation of delay incorrectly sought
condonation of delay of 54 days considering that they were required
to file the appeal within a period of six months as per Section
378(5) Cr.P.C. Equally, the contention of the learned counsel for the
Union of India vs. M/s Mukul Enterprises & Another
respondents that the appeal had to be filed within sixty days as
provided in Section 378(5) was also incorrect.
11. As Article 114 (a) of the Limitation Act, 1963 provides a
period of limitation of ninety days from the date of the order
appealed from for preferring an appeal from an order of acquittal,
let us examine whether the application and the two affidavits in
support thereof filed by the Applicant explains the delay to the
satisfaction of this Court and provides sufficient cause as required.
12. As per the explanation given by the Applicant, the period
of delay initially is attributed to the failure of the conducting counsel
to inform the Applicant about the impugned judgment till
21.06.2022. The explanation given thereafter explains the delay in
the process of seeking permissions, necessary directions and
approvals from the higher authorities which seems usual practice in
all cases where the Government is a litigant. Inspite of various
judgments and directions given by the Constitutional Courts the
process of seeking permissions, directions and approvals remains as
cumbersome and time consuming. Substantial part of the delay is
explained however, on the personal grounds of the Deputy Solicitor
General of India with supporting medical papers. The application and
the two affidavits have substantially explained the delay with
supportive documents giving us an impression that what they state
in the application is true. It is well-settled that while considering an
application for condonation of delay beyond the period of limitation,
the applicant has to explain the Court as to what was the "sufficient
cause", which means an adequate and enough reason which
Union of India vs. M/s Mukul Enterprises & Another
prevented him to approach the Court within limitation. In a case
where a party is found to be negligent or for want of bona fide on
his part, or found to have not acted diligently or remain inactive,
there cannot be a justified ground to condone the delay. These
reasons for rejecting the application for condonation of delay are not
available in the present case. On a pragmatic and justice oriented
approach rather than the technical detection of sufficient cause for
explaining every days delay, we are of the considered view that the
Applicant has been able to show sufficient cause to condone the
delay.
13. The application is allowed and disposed of, accordingly.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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