Point of Law: Conducting of an enquiry under Section 202(1) Cr.P.C is mandatory, when the accused is residing at a place beyond the area of jurisdiction of the Magistrate.

ORDER :

This Crl.M.C has been filed by the accused in C.C No.1941 of 2014 on the file of Additional Chief Judicial Magistrate Court, Thiruvananthapuram to quash the proceedings in that case, invoking the inherent powers of this Court under Section 482 of Cr.P.C.

2. The State of Kerala represented by Drugs Inspector, Thiruvananthapuram filed Annexure-A complaint against the petitioners herein under Section 32 of the Drugs and Cosmetics Act, 1940, alleging offences punishable under Section 18(a)(i) read with Section 27(d) of the said Act.

3. The allegation in the complaint was that, on 31.01.2011, the Drugs Inspector inspected District Drug Warehouse, Kerala Medical Services Corporation Ltd and drew sample of the drug Enalapril Maleate Tablets IP 2.5mg, Batch No.EEK 04, manufactured and sold by the petitioners. On analysis, the sample was declared 'not of standard quality' as it failed to comply with the test for assay, in violation of Section 18(a)(i) read with Section 27(d) of the Act.

4. Learned Additional Chief Judicial Magistrate Court, Thiruvananthrapuram took cognizance of the offence and complaint was taken on file as C.C No.1941 of 2014. The petitioners are contending that cognizance would not have been taken by the Magistrate on the basis of Annexure A complaint, and so the complaint and the proceedings pursuant thereto are liable to be quashed.

5. The grounds alleged are as follows:

The complaint is barred by limitation. The Government Analyst report was dated 01.06.2011, and so the complaint ought to have been filed on or before 01.06.2014. But, it was filed only on 23.06.2014 and therefore, it is barred by limitation. The code of the sample in Form No.17 is not tallying with the code of the sample in Form No.18. So it has to be inferred that the analyst report is not pertaining to the sample seized. No offence was made out against the petitioners under Section 18(a)(i) of the Act. The Drug Inspector had no jurisdiction to take the sample, as he failed to produce his appointment order as Drug Inspector for the local area. Moreover, the Drug Inspector had no right to represent the State of Kerala in the complaint filed. When the manufacturer and manufacturing activities were not within the jurisdiction of the Drug Inspector, an enquiry under Section 202 Cr.P.C was mandatory, before issuing summons to the accused. According to them, for these reasons, the complaint as well as the proceedings in C.C No.1941 of 2014 are liable to be quashed.

6. The main ground of attack is that, the complaint is barred by limitation. The sample was taken on 31.01.2011 and the Analyst Report was dated 01.06.2011. The complaint was filed only on 23.06.2014.

7. An offence punishable under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act') is 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 Rs.20,000/-.

8. Section 468 (2)(c) of Cr.P.C reads thus:

“468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) xxx

(b) xxx

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years”.

When a special enactment does not stipulate any specific period of limitation to initiate prosecution or to take cognizance, the provisions in Cr.P.C will govern the period of limitation. Relying on Section 468(2)(c) of Cr.P.C, the petitioners would say that, the complaint ought to have been filed on or before 01.06.2014, but it was filed only on 23.06.2014. Cognizance of the offence was taken on the complaint even on a later date.

9. Now let us see what shall be the crucial date on which the period of limi