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1982 Supreme(Bom) 306
BOMBAY HIGH COURT
Jahagirdar, J.
The State of Maharashtra Appellant
versus
Deepchand Khushalchand Jain and others Respondents
Criminal Appeal No. 1542 of 1979
[ Preliminary Objection in ]
Decided on 22nd November, 1982
For the Appellant State: J. A. Barday, Public Prosecutor.
For the Respondents: V. B. Ganatra, Advocate.
The State of Maharashtra Vs. Deepchand Khushalchand Jain and others.
Headnote:(i) Prevention or Food Adulteration Act, 1954-Sections 16 and 17 read with Section 7(i) and 2(i)(a)- Limitation Act, 1963-Section 29(2) and Article 114-Code of Criminal Procedure, 1898- Section 417-General Clauses Act, 897-Section 8 - Criminal Procedure Code, 1973-Section 378-Preliminary object on as to period or limitation for State appeal to High Court against acquittal of respondents or of offences under Sections 16 and 17 read with Sections 7(i) and 2(i)(a) or the Prevention of Food Adulteration Act, 1954-Whether 90 days or 60 days? (90 days)-Order of acquittal passed by trial Magistrate on 28-2-79-State filing appeal in exercise of power under Section 378(1) Criminal Procedure Code on 7-12-1979-Allowing time requisite for obtaining certified copy, the appeal has been filed within 90 days, though beyond 60 days, from the date of the order-Is the appeal within time? (Yes)-Preliminary objection rejected.
Held though Article 114 of the Limitation Act, 1963 refers to Section 417 of the Code of 1898, by virtue of the provision contained in Section 8 of the General Clauses Act, the reference in Article 114 will have to be read as one to the corresponding provisions in the Code of 1973, viz. Section 378. (Para 8)
A proper reading of all the provisions contained in section 378 must necessarily lead to the conclusion that as far as the State is concerned, no period of limitation is mentioned in the said Section. Though Section 378 is a special law, since the period of limitation is not mentioned in the said Section, one has necessarily to refer to the Limitation Act for finding out what the period of limitation is for a State appeal against an order of acquittal. (Para 12)
The period of limitation prescribed for State appeals against orders of acquittal under Article 114 of the Limitation Act 1963 is ninety days. This appeal is, therefore, within time. (Para-21)
Case Law discussed. A.I.R. 1977 S.C. 1328 relied on.
(ii) Limitation Act, 1963-Section 5-Whether objection in respect of bar of limitation can be taken at time of final hearing of appeal? (Yes)-Time of filing of application for condonation of delay-
Held if an appeal which is barred by time has been admitted the question of limitation can be-considered at the stage of final hearing on an objection raised by the respondent. (Para 25)
It cannot be said as a proposition of law that an application for condonation of delay cannot be made at all after the appeal has been filed or that such an application must necessarily be made along with the filing of the appeal. (Para 27)
Jahagirdar, J. - The respondents in this appeal were prosecuted in Criminal Case No. 72 of 1974 in the Court of the Judicial Magistrate First Class, of Niphad for offences punishable under sections 16 and 17 read with Sections 7(i) and 2(i) (a) of the Prevention of Food Adulteration Act, hereinafter referred to as "the Act". The prosecution was launched on the allegation that the respondents had sold groundnut oil, which was found to be adulterated by the Public Analyst, to the Food Inspector attached to the office of the Assistant Commissioner, Nasik Circle, of the Food and Drugs Administration. In the complaint itself the complainant was described as follows: -
"State of Maharashtra, at the instance of Shri H. N. Ugale, Food Inspector, Nasik".
Section 20 of the Act provides as follows:
"20(1). No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority,"
The above provision shows that the prosecution for an offence under the Act can be instituted by (1) the Central Government, (2) the State Government, (3) a local authority, (4) a person authorised in this behalf, by general or special order, by the Central Government or the State Government or the local authority, (5) or by a person with the written consent of any of the aforesaid authorities or persons. In the present case it "has been mentioned in the complaint filed in the Court below as follows:
"That as per the provisions of Section 20 of the Act consent has been obtained from the Asstt. Commissioner, Food and Drugs Administration, Nasik Circle, Nasik for the prosecution of the accused."
The Assistant Commissioner must obviously be the person who is authorised to give consent as provided for in Section 20. That is clear from the order passed by the Assistant Commissioner, Nasik Circle, of the Food and Drugs Administration, on 19th of January 1974. In this order the Assistant Commissioner has mentioned that in exercise of the powers vested in him under section 20 of the Act read with Government Resolution, Urban Development, Public Health and Housing Department No PFA/l871/569l7-V dated 25th July 1973, he gives consent for the prosecution of the persons named therein, who are the accused in the case.
2. The learned trial Magistrated by his Judgment and order dated 28th of February 1979 acquitted the accused of the offences with which they were charged. It may be mentioned that originally in the trial Court there were four accused, the first three being the partners of the fourth accused which is a firm. During the pendency of the trial, the third accused died. The application for certified copy of the judgment was made by the State on 5th of March 1979. The certified copy was ready somewhat late on 29th of September 1979. The appeal has been filed on 7th of December 1979. Taking into consideration the time requisite for obtaining the certified copy, the appeal has been filed within ninety days, though beyond sixty days, from the date of the order.
3. Mr. Ganatra, the learned Advocate appearing for the respondents, has taken a preliminary objection to the hearing of this appeal on the ground that the appeal when filed was barred by limitation. According to Mr. Ganatra, the period of limitation for this appeal is sixty days. He contends that the provisions of sub-section (4) and (5) of Section 378 of the Code of Criminal Procedure, 1973, hereinafter referred to as "the Code of 1973", are applicable to this appeal. Even if the appeal is treated as a composite petition containing both the grounds of appeal and prayer for leave to appeal under sub-section (4) of Section 378 it should have been filed within sixty days as mentioned in sub-section (5) of Section 378.
4. His second contention is that even if the appeal has bee
