Public Prosecutor must have explicit governmental direction to appeal against acquittal under Section 378 of the Cr.P.C.

JUDGMENT :

JOHNSON JOHN, J.

1. This appeal is filed by the State of Kerala under Section 378 (1) and (3) of Cr.P.C against the acquittal of the accused for the offence under Section 18 (c) and 27(d) of the Drugs and Cosmetics Act, 1940 (for short 'the Act').

2. In the complaint filed under Section 32 of the Act, it is alleged that the first accused is the proprietress and the licensee in respect of M/s.Athul Agencies, and the second accused is the competent person of the said establishment authorised to deal in drugs specified in Schedule 'C' & 'C1' except those requiring cold storage facilities and that when the complainant Drugs Inspector inspected the business premises on 02-04-2004, it was found that in violation of the conditions of the licence, the accused stored the drug Tetanus Toxide IP and thereby committed the offence as aforesaid.

3. When the matter came up for hearing, the learned counsel for the respondents/accused argued that the appeal is yet to be admitted for want of leave as contemplated under Sub clause 3 of 378 Cr.P.C and the appellant/State of Kerala has not filed any application seeking leave. The learned Public Prosecutor argued that even though no separate leave application is filed, the appellant has sought for leave under Section 378(3) Cr.P.C in the Memorandum of Appeal and therefore, considering the facts and circumstance of the case, a separate application for leave is not required.

4. The learned counsel for the respondents pointed out that the learned Public Prosecutor has not produced any Government Order or decision directing the Public Prosecutor to file an appeal and in the absence of the same, the appeal is liable to be dismissed.

5. In State of Kerala v. Saji @ Dada Saji and Others, 2021 (1) KHC 740, a Division Bench of this Court held that there should be a direction from the State Government to enable the Public Prosecutor to institute an appeal to the High Court as provided under Section 378(1)(b) Cr.P.C, especially in view of the rules of business of the Government of Kerala. Paragraphs 11 to 15 in the said judgment is extracted below for convenient reference:

“11. We also perused the rules framed by the Government to better perceive how the executive Government, the rule making authority, understood the provision for appeal. The Kerala Government Law Officers Appointment and Condition of Service and Conduct of Case Rules, 1978 refers to ‘Criminal Matters’ in Chapter VIII. Rule 69(1) provides that Government Law Officers in courts other than the High Court shall deal with the Collector of the District concerned in regard to criminal cases. The various sub-rules deal with judgments in every case and the interactions between the Government Law officers, the Collector, the District Superintendent of Police, the Advocate General and eventually the Government. Sub rule (6) refers to cases of acquittal in murder cases; the forum for an appeal from which, is definitely the High Court. Sub- rule (3) and (6) of Rule 69 reads as here under and the concerned Government Law Officer, spoken of there, is obviously the one who conducted the trial. He has to transmit the records of the case to the Advocate General along with his opinion and with opinion of the District Superintendent of Police.

R.69(3) “In cases of acquittal, if the concerned Government Law Officer and the District Superintendent of Police concerned agree that an appeal should be filed, either of them may make a report to the Advocate General direct with connected records. A copy of the report shall also be sent to the District Collector concerned by the reporting officer. The Advocate G