ORDER :

1. In this Revision Petition, the petitioner has sought quashment of order dated 28-12-2012, passed by the Court of learned Sub Judge – Judicial Magistrate, 01st Class, Jammu (hereinafter referred to as Court below), in a complaint titled “State through Senior Drug Inspector, Jammu” versus S. K. Khanna and others under File No. 57/Complaint.

2. The facts, those stem out from the aforesaid petition, are that a criminal complaint under Drugs & Cosmetics Act 1940 (hereinafter referred to as Act of 1940) came to be filed/instituted against the respondents after analysis and testing of the samples of the drug in question, lifted from the premises of Provincial Medical Stores were found to be ‘not of standard quality’ as defined under the Act of 1940 and consequently, the respondents were alleged to have committed offences u/s 18 (a) (i), 18 (c) read with section 27 of the Act of 1940 and that upon institution of the aforesaid complaint by the petitioner before the Court below, summons were issued to the respondents for causing their appearance, in consequence whereof, they appeared before the Court below. Perusal of the petition reveals that the petitioner as also the respondents led their respective evidences in the matter and that the complaint remained pending before the Court below on account of delay purportedly having been caused by the absence of the respondents, who had sought off and on exemption after exemption from personal appearance. Perusal of the petition would further reveal that due to the nature of official duties rendered by the petitioner, on three occasions, he could not cause appearance as complainant before the Court below, as a consequence whereof, the Court below dismissed the complaint for non prosecution vide order dated 28-12-2012.

3. The said order being impugned in the petition and is challenged inter alia on the ground that it has been passed by the Court below against the canons of law, as such is not tenable and that the Court below instead of dismissing the complaint for non-appearance/non-prosecution of the complainant, could have dispensed with his personal appearance in view of proviso appended to Section 247 of Cr. PC and that the Court below instead of dismissing the complaint could have proceeded with the trial of the case taking into account nature of the offences committed by the respondents under the Act, being against public health and serious in nature.

4. Per contra, learned counsel for the respondents, seeks dismissal of the revision petition on a preliminary objection urging that the criminal revision is not maintainable on the premise that dismissal of complaint for non prosecution, in essence, amounts to acquittal of the accused respondent in terms of section 256 Cr. PC and that the Criminal Revision, per se, is not remedy against such an acquittal. Reliance in this regard is being placed on “Kalpana Tyagi vs. Sneh Lata Sharma” reported in 2003 Cr. LJ 3395 of Delhi High Court.

In response to the aforesaid preliminary objection, the learned counsel for the petitioner would contend that the same is misplaced as also misdirected in view of sub section 5 of section 401 Cr. PC where under an application for revision can be treated as a petition of appeal where High Court is satisfied that such revision has been filed under an erroneous belief.

The learned counsel for the petitioner would next contend that, in fact, the aforesaid Revision Petition was filed in the year 2012 and that under a bona fide mistake, the then Drug Inspector, without having any legal background, had filed the same purportedly in view of the fact that there was no acquittal recorded by the Court below while dismissing the complaint in question for non-prosecution and that the revisional power has been invoked in the present petition, being a supervisory power exercisable by superior Courts to correct illegality of the Courts below or to rectify the manifest injustice.

5. Learned counsel for the petitioner would ne