A Magistrate lacks jurisdiction to take cognizance of an offence without first condoning the delay, if the complaint is filed after the period of limitation, and the accused have a right to be heard on the question of condonation of delay.

Headnote:
DRUGS AND COSMETICS ACT - SECTION 18(A)(II) READ WITH SECTION 27 - SECTION 18 READ WITH SECTION 27 - RULE 65(5)(1) - COURT'S JURISDICTION TO TAKE COGNIZANCE OF AN OFFENCE WITHOUT FIRST CONDONING THE DELAY - INTERPRETATION OF SECTIONS 468 AND 473 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - NECESSITY FOR THE MAGISTRATE TO APPLY HIS MIND TO THE QUESTION OF LIMITATION AND TO INDICATE THAT HE CONDONED THE DELAY OR TOOK COGNIZANCE IN THE INTEREST OF JUSTICE - RIGHT OF THE ACCUSED TO BE HEARD ON THE QUESTION OF CONDONATION OF DELAY - ILLEGALITY OF TAKING COGNIZANCE WITHOUT GIVING THE ACCUSED AN OPPORTUNITY TO BE HEARD.
Fact of the Case:

The petitioners, a chemist shop owner and his employees, were charged with selling mis-branded drugs and failing to mention batch numbers and manufacturer's names on invoices, in violation of the Drugs and Cosmetics Act and Rules. The complaint was filed more than three years after the alleged offences occurred, and the petitioners challenged the Magistrate's jurisdiction to take cognizance of the offences without first condoning the delay.
Finding of the Court:

The Court held that the Magistrate lacked jurisdiction to take cognizance of the offences without first condoning the delay. The Court interpreted sections 468 and 473 of the Code of Criminal Procedure, 1973, and held that it is incumbent upon the Court taking cognizance of an offence to first consider the question of limitation and, if the complaint is filed after the period of limitation, to condone the delay or to take cognizance in the interest of justice. The Court further held that the accused have a right to be heard on the question of condonation of delay and that the Magistrate erred in taking cognizance of the offences without giving the petitioners an opportunity to be heard.
Issues: 1. Whether the Magistrate had jurisdiction to take cognizance of the offences without first condoning the delay. 2. Whether the accused had a right to be heard on the question of condonation of delay.
Ratio Decidendi: 1. The Court interpreted sections 468 and 473 of the Code of Criminal Procedure, 1973, and held that it is incumbent upon the Court taking cognizance of an offence to first consider the question of limitation and, if the complaint is filed after the period of limitation, to condone the delay or to take cognizance in the interest of justice. 2. The Court held that the accused have a right to be heard on the question of condonation of delay and that the Magistrate erred in taking cognizance of the offences without giving the petitioners an opportunity to be heard.
Final Decision: The Court quashed the complaint against the petitioners.

JUDGMENT - Rele B.J., J. :- The petitioner No. 1, who is the employer, and petitioners Nos. 2 to 5, who are the employees in the first petitioner's chemist shop known as “Maharashtra Medical Stores” at Kalachowki, Bombay, have invoked the inherent jurisdiction of this Court to quash proceedings in Case No. 166/S of 1977 pending in the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay.

2. This application raises an important question in regard to thejurisdiction of the Court to take cognizance of an offence without first condoning the delay. Petitioner No. 1 is the proprietor of Maharashtra Medical Stores. Petitioner No. 2 is the Manager of the said proprietary concern. Petitioner No. 3 is a qualified person employed in the said concern and petitioners Nos. 4 and 5 are the employees.

3. In the course of investigation in C. R. No. 64/74 of Criminal

Branch Control (Drugs), C. I. D., Bombay, the police arrested one Rajani-

kant Laxraichand Mehta on 23rd July 1974 and seized from his residence at Sonawalla Building, C. P. Tank, Bombay, huge stock of drugs stocked for sale without licence. Some of the drugs were mis-branded drugs bearing markings of E. S. I. S., M. C. G. B., Medical Stores, K. E. M. Hospital, etc. The said Rajanikant revealed that he had purchased most of the stock from petitioner No. 1.

4. On 24th July 1974, the police accompanied by the Officers of the Food and Drug Administration searched the premises of Maharashtra Medical Stores in the presence of panchas. At that time petitioner No. 1 was not present in the shop; but petitioners Nos. 2 to 5 were present in the shop. The police seized from the shop: (1) Garamycin-Gentamycin as Sulphate U. S. P. Batch No. IN-3-AMKZ-19, labelled as manufactured by Messrs G. E. Fulford (India) Pvt. Ltd., Bombay; (2) Tatracycline Hydrochloride capsules 1. P. Batch No. 108, manufactured by Messrs Alkamo Laboratories, 125/1, L. B. Shastri Road, Bhandup, Bombay; and (3) Tetracycline Hydrochloride Capsules I. P. Batch No. 506, manufactured by Messrs Ravi Pharmaceuticals, Daman. Petitioners Nos. 2 to 5 did not produce purchase invoices or records in respect of these drugs. Sample of the drugs was taken by the Drugs Inspector and intimation in form No. 17 was prepared and as accused No. 1 was not present, intimation in form No. 17 together with sealed samples were given to petitioners Nos, 2 and 3.

5. All the samples were sent to Government Analyst, Maharashtra

State, for analysis. The Government Analyst submitted his report dated 2nd August 1974. The report showed that Garamycin-Gentamycine, as sulphate, U. S. P. Batch No, IN-3-AMKZ-19 was not of standard quality and it contained only 9.1% of the labelled amount of Gentamycin base. By this report dated 10th October 1974, the Government Analyst reported that the samples of Tetracycline Hydrochloride capsules I. P. Batch No. 108 were not of standard quality and not containing any Tetracycline Hydrochloride at all. Inquiries further revealed that Messrs Alkame Laboratories, Bombay, was a fictitious firm.In regard to Tetracycline Hydrochloride Capsules I. P. Batch No. 506,. the Government Analyst reported that the capsules were of standard quality.

6. Further inquiries revealed that the petitioners had sold to some

doctors having dispensaries at Bombay various drugs and the petitioners had not mentioned Batch number, name of manufacturer, etc., in the invoices issued to those doctors as required by Rule 65 (5) (1) of the Drugs and Cosmetics Rules, 1945. Inquiries further revealed that some of the drugs supplied by the petitioners to the above doctors were in unlabelled containers.

7. On these facts, the Inspector appointed under section 21 of the

Drugs and Cosmetics Act, 1940, filed his complaint on 12th August 1977 in the Court of the Metropolitan Magistrate 28th Court, Esplanade, Bombay, charging the petitioners with having sold m

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1981 Supreme(Bom) 82

IN THE HIGH COURT OF BOMBAYRele B.J., J. Jethmal Himmatmal Jain and others .... Petitioners.VersusState of Maharashtra.... Respondent.Criminal Application No. 1399 of 1980 decided on 12-3-1981. Advocates appeared:C.S. Gosalia for petitioners Nos. 1 to 5.J.A. Barde, Public Prosecutor for State.

A Magistrate lacks jurisdiction to take cognizance of an offence without first condoning the delay, if the complaint is filed after the period of limitation, and the accused have a right to be heard on the question of condonation of delay.