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CASE NO.: Appeal (crl.)  1251 of 2003

PETITIONER: Bharat Damodar Kale & Anr.                       

RESPONDENT: State of A.P.                                            

DATE OF JUDGMENT: 08/10/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.)No. 2367 of 2003)

SANTOSH HEGDE,J.

       Heard learned counsel for the parties.         Leave granted.

       This appeal is preferred against the judgment and order  made by the High Court of Judicature: Andhra Pradesh at  Hyderabad on 18.2.2003 whereby the High Court dismissed  the criminal petition filed by the appellants under Section 482  of the Code of Criminal Procedure (the Code). The prayer of  the appellants in the said petition was to quash the criminal  proceedings initiated against them in CC No.201/2000 on the  file of the II Metropolitan Magistrate, Vijayawada.

       The challenge of the appellants before the High Court  in the said petition was based on the ground that the  cognizance of the alleged offence taken by learned  Magistrate was barred by limitation under Section 469 of the  Code. It was also urged that the Magistrate could not have  taken cognizance of the offence based on a complaint made  by Drug Inspector, Zone I, Vajayawada who was not one of  the authorised officers under the Notification issued by the  Government of Andhra Pradesh under the provisions of the  Drugs and Magic Remedies (Objectionable Advertisements)  Act, 1954 [the Central Act of 1954].  The High Court considering the said objections of the  appellants rejected the same holding that the Notification  issued by the Government of A.P. based on which the  complainant Drug Inspector had initiated the complaint, is a  notification applicable to the entire State of A.P. and not  confined only to the Telangana area of the said State,  therefore, the complainant was a competent person to lodge  the complaint. The High Court also accepted the argument  advanced on behalf of the prosecution that the offence having  been detected on 5.3.1999 and the complaint having been  filed on 3.3.2000, the same was well within the limitation  prescribed under Section 469 of the Code. The High Court  further accepted the argument of the prosecution that  assuming there was a delay, the same is condonable under  Section 473 of the Code because the said delay occurred due  to the time taken by the Government in granting sanction  which was excludable while computing the period of  limitation.

       Mr. R.K. Anand, learned senior counsel appearing for

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the appellants, contended that the High Court erred in coming  to the conclusion that the Notification issued by the  Government of A.P. dated 16.9.1963 issued in G.O.M.S.  No.2515 Health, also applied to all Drug Inspectors in the  State of A.P. According to him, that Notification was  applicable to the Drug Inspectors of Telangana area of the  State of A.P. only and the Drug Inspectors of Vijayawada  which is outside the Telangana area, could not have assumed  the jurisdiction flowing from the said Notification. Learned  counsel further contended that the High Court was in error in  coming to the conclusion that the limitation prescribed under  the Code was applicable only for the filing of the complaint  and not for taking of the cognizance which according to  learned counsel, is opposed to the very language of Chapter  XXXVI of the Code. He further submitted that the court  below was in error in coming to the alternate conclusion that  on the facts of this case the period of limitation, can be  extended because said time was taken in obtaining sanction  from the Government. For this purpose, he relied on a  judgment of this Court in State of H.P. v. Tara Dutt & Anr.  (2000 1 SCC 230).

       Per contra, Mr. G. Prabhakar, learned counsel  appearing for the State of A.P. submitted that the High Court  was justified in coming to the conclusion that the Notification  in question was applicable to the whole of State of A.P. and  not confined to the Telangana area of the said State. He  pointed out from the various paras of the said Notification  that this was a notification issued by the Government of A.P.  to comply with the requirement of the Central Act of 1954,  and an inadvertent reference to the Telangana area in the  preliminary part of the notification would not change the  actual effect of the notification. Learned counsel also  submitted  that the bar of limitation prescribed under Section  468 of the Code is applicable only in regard to taking  cognizance of offences in respect of which complaints are  filed after the expiry of limitation mentioned in Section 468  of the Code.The use of the words ’Bar of taking cognizance’  is not with reference to the act of the court in taking  cognizance but is with reference to taking cognizance of the  case which is barred by limitation under the Act. In support  of this contention learned counsel relied upon a judgment of  this Court in Rashmi Kumar (Smt) v. Mahesh Kumar Bhada  (1997 2 SCC 397).  We have perused the notification of the Government of  A.P. dated 16.9.1963 issued under the Central Act of 1954.  As held by the High Court, in our opinion too, the  Notification in question is issued in furtherance of the 1954  Act and on the directions issued by the Government of India  with a view to control the advertisements of drugs in certain  cases and to provide for matters connected with the Central  Act of 1954. Paragraph 2 of the said Notification authorises  the Officers of the Drugs Control Adminsitation, Drugs  Inspectors appointed under Section 21 of the Drugs Act,  1940 and other officers mentioned therein to act under  Section 8 of the Central Act of 1954 to seize and detain any  document, article or thing which such officer has reason to  believe to contain any advertisement which contravenes the  provisions of the Act. The said Notification also provides for  obtaining the necessary previous sanction under Section  14(1)(d) of the Act, wherever necessary. These provisions of  the Act, in our opinion, as also the object of the Notification  clearly indicate that the Government of A.P. has issued this  Notification empowering all its Drugs Inspectors appointed  under Section 21 of the Drugs Act to exercise the power

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under Section 8 of the Central Act of 1954 for the purpose  mentioned therein throughout the State of A.P. and an  inadvertent reference to the Telangana area in the preliminary  part of the said notification, in our opinion, would not in any  manner restrict the operation of this Notification in other  parts of Andhra Pradesh. Even otherwise there is no other  indication or purpose reflected in the notification why the  State of A.P. would want to restrict the operation of the  notification which is in furtherance of a Central enactment  only to Telangana area of A.P. State, with no stretch of  imagination we can conclude that the Government of A.P.  intended to confine the operation to Telangana area of A.P.  State. We are also of the opinion that giving a narrow  interpretation confining the operation of the Notification to a  part of Andhra Pradesh would defeat the public purpose for  which this notification is issued, therefore, such argument  which would not subserve the public purpose in the  interpretation of a notification, should be avoided, hence, we  are in agreement with the finding of the High Court that the  notification in question is applicable to the entire State of  A.P. and the complainant in this case had the necessary  authority to seize and detain any material which would  indicate the commission of an offence under the Central Act  of 1954 as also to file a complaint as has been done in this  case.    

       This takes us to the next argument addressed on behalf  of the appellants in this case that is the bar of limitation. It is  an undisputed fact that in this case the detection of the  offence was on 5.3.1999. The complaint in question was  lodged in the court on 3.3.2000 which is within the period of  limitation of one year. However, the Magistrate took  cognizance of the offence on 25.3.2000. If the statute has put  the period of limitation on the court taking cognizance then  in this case the period of limitation being one year, the  appellant is right in contending that the bar of limitation  applies because the cognizance was taken on 25.3.2000  which is beyond the period of one year. The High Court  accepted the argument addressed on behalf of the State and  observed that since the complaint was filed within the period  of one year of the detection of the offence, it is within the  period of limitation though it did not give reasons for this  finding and it also alternatively held that assuming that there   was some delay in taking cognizance, said delay is  condonable under Section 473 of the Code because the delay  was caused in the process of obtaining sanction from the  concerned Government. On facts of this case and based on the arguments  advanced before us we consider it appropriate to decide the  question whether the provisions of Chapter XXXVI of the  Code apply to delay in instituting the prosecution or to delay  in taking cognizance. As noted above according to learned  counsel for the appellants the limitation prescribed under the  above Chapter applies to taking of cognizance by the  concerned court therefore even if a complaint is filed within  the period of limitation mentioned in the said Chapter of the  Code, if the cognizance is not taken within the period of  limitation the same gets barred by limitation. This argument  seems to be inspired by the Chapter-Heading of Chapter  XXXVI of the Code which reads thus : "Limitation for taking  cognizance of certain offences". It is primarily based on the  above language of the Heading of the Chapter the argument  is addressed on behalf of the appellants that the limitation  prescribed by the said Chapter applies to taking of  cognizance and not filing of complaint or initiation of the

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prosecution. We cannot accept such argument because a  cumulative reading of various provisions of the said Chapter  clearly indicates that the limitation prescribed therein is only  for the filing of the complaint or initiation of the prosecution  and not for taking cognizance. It of course prohibits the court  from taking cognizance of an offence where the complaint is  filed before the court after the expiry of the period mentioned  in the said Chapter. This is clear from Section 469 of the  Code found in the said Chapter which specifically says that  the period of limitation in relation to an offence shall  commence either from the date of the offence or from the  date when the offence is detected. Section 471 indicates  while computing the period of limitation, time taken during  which the case was being diligently prosecuted in another  court or in appeal or in revision against the offender should  be excluded. The said Section also provides in the  Explanation that in computing the time required for obtaining  the consent or sanction of the Government or any other  authority should be excluded. Similarly, the period during  which the court was closed will also have to be excluded. All  these provisions indicate that the court taking cognizance can  take cognizance of an offence the complaint of which is filed  before it within the period of limitation prescribed and if  need be after excluding such time which is legally  excludable. This in our opinion clearly indicates that the  limitation prescribed is not for taking cognizance within the  period of limitation, but for taking cognizance of an offence  in regard to which a complaint is filed or prosecution is  initiated beyond the period of limitation prescribed under the  Code. Apart from the statutory indication of this view of  ours, we find support for this view from the fact that taking  of cognizance is an act of the court over which the  prosecuting agency or the complainant has no control.  Therefore a complaint filed within the period of limitation  under the Code cannot be made infructuous by an act of  court. The legal phrase "actus curiae neminem gravabit"  which means an act of the court shall prejudice no man, or by  a delay on the part of the court neither party should suffer,  also supports the view that the legislature could not have  intended to put a period of limitation on the act of the court  of taking cognizance of an offence so as to defeat the case of  the complainant. This view of ours is also in conformity with  the early decision of this Court in the case of Rashmi Kumar  (supra) If this interpretation of Chapter XXXVI of the Code is  to be applied to the facts of the case then we notice that the  offence was detected on 5.3.1999 and the complaint was filed  before the court on 3.3.2000 which was well within the  period of limitation, therefore, the fact that the court took  cognizance of the offence only on 25.3.1999 about 25 days  after it was filed, would not make the complaint barred by  limitation.  In view of our above finding, we do not think it is  necessary for us to go to the next question argued on behalf  of the appellants that the court below was in error in invoking  Section 473 of the Code for extending the period of  limitation nor is it necessary for us to discuss the case of Tara  Dutt (supra) relied on by the appellants.

       For the reasons stated above, this appeal fails and the  same is hereby dismissed.