1. Heard learned Addl. P.P., Mr. Lalsawirema for the State appellant and learned counsel, Mr. A.R. Malhotra for the respondent.

2. This appeal/application under sections 378 and 482 of Cr.PC is directed against the judgment and order dated 23.7.2010, passed by learned Addl. Sessions Judge, Aizawl in Criminal Appeal No.04/2010, arising out of Crl. Trl.(Ex) No.97/2008.

3. The respondent Sh. C. Lalhmingliana was prosecuted for commission of offence punishable under section 13(1) of Assam Drugs (Control) Act, 1950 ('ADC Act') and the trial was taken up in the court of learned Magistrate, 1st Class, Aizawl, and the learned Magistrate, on conclusion of trial by judgment dated 14.12.2009 found the accused-respondent guilty of committing offence under section 13(1) of ADC Act and sentenced him to suffer SI for a period of 4(four) days and to pay a fine of Rs. 1,000 (rupees one thousand), in default of payment, to suffer SI for 10(ten) days. Being aggrieved with the judgment and order of conviction and sentence, passed by the learned Magistrate, the respondent preferred Criminal Appeal No.04/2010 in the Court of Sessions and learned Addl. Sessions Judge by impugned judgment and order dated 23.7.2010 set aside the judgment and order of conviction and sentence, passed by the learned Magistrate and set the accused at liberty. Against that order of the learned Addl. Sessions Judge, the present appeal/application, under sections 378 and 482 of Cr.PC, has been preferred by the State appellant.

4. As I find on record, the appellant-petitioner had filed a separate petition, under section 378(3) of Cr.PC, praying for granting leave to the appellant for preferring the present appeal and that leave was granted by this court by order dated 8.2.20L1, passed in Crl. Misc. Appl. No. 17 of 2010 in connection with this criminal appeal.

5. Learned counsel, Mr. Malhotra at the outset has submitted that the appeal is not maintainable for the reason that it was not preferred by the complainant and so leave granted by this court to prefer the appeal was not proper. Learned counsel, drawing my attention to the records submits that the complaint before the Magistrate was filed by Inspector of Excise and Narcotics in the capacity of a public servant and based on that complaint, cognizance was taken and the accused was convicted by the Magistrate. The Additional Sessions Judge set aside the judgment and order of conviction and sentence, passed by the Magistrate and according to law only the complainant, who originally filed the complaint, was entitled to prefer an appeal and to pray for leave before this court. In support of his contention he has referred the case law reported in K. Ramachandran v. V.N. Rajan andAnr., (2009) 14 SCC 569, wherein the Apex Court in para 33 of the judgment has held that if a case is instituted by the complainant and such leave is refused, even the State Government would be unable to pursue any appeal under sub-sections (1) or (2) against the impugned judgment of acquittal. He has further submitted that the present appeal was preferred by the State of Mizoram, represented by the Secretary to the Government, and, therefore, the appeal cannot be entertained.

6. Appearing for the appellant learned Addl. P.P., has submitted that the respondent now cannot raise this question as the respondent also made the State of Mizoram as party in the criminal appeal before the Sessions Court and the complainant was not made a party in that appeal. Now the respondent is barred by his own conduct and since the complaint was filed by Inspector of Excise and Narcotics in the capacity of public servant, it may be treated as a State appeal. I have considered the rival contentions of both sides. The word 'complaint' is defined in section 2(d) of Cr.PC, thus :

"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but d

Click Here to Read the rest of this document