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PETITIONER: MANGU RAM

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI

DATE OF JUDGMENT10/10/1975

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  105            1976 SCR  (2) 260  1976 SCC  (1) 392

ACT:      Limitation Act, 1963-ss. 5, 29(2)-Scope of.

HEADNOTE:      The respondent  sought special  leave to  appeal to the High  Court   under  s.  417(3)  of  the  Code  of  Criminal Procedure, 1898  against the  acquittal of the petitioner by the trial  court. The application was made beyond the period of limitation but the High Court condoned the delay under s. 5 of the Limitation Act. 1963.      In their  application for  special leave  to appeal  to this Court  the petitioners contended that the time limit of 60 days prescribed under s. 417(4) was mandatory and as such the High  Court had no jurisdiction to extend the time limit by resort to s. 5 of the Limitation Act, 1963.      Dismissing the special leave petitions, ^      HELD: (1)  The order  granting special leave was not an order outside  the power  of the High Court. In a case where an application  for special leave to appeal from an order of acquittal is  filed after  the  coming  into  force  of  the Limitation Act,  1963,  s.  5  would  be  available  to  the applicant and  if he  can show  that he had sufficient cause for not  preferring the application within the time limit of 60 days  prescribed in sub-s. (4) of s. 417, the application would not  be barred  and despite the expiration of the time limit of  sixty days, the High Court would have the power to entertain it. [265B-C]      (2) Since  under the  Limitation  Act,  1963  s.  5  is specifically made applicable by s. 29(2) it could be availed of for  the purpose  of extending  the period  of limitation prescribed by  a special  or local  law if the applicant can show that  he had  sufficient cause  for not  presenting the application within  the period  of limitation. It is only if the  special   or   local   law   expressly   excludes   the applicability of  s. 5  that it  stands  displaced.  Section 29(2) (b)  of the Limitation Act, 1908 specifically excluded the applicability  of s. 5 while s. 29(2) of the 1963 Act in a clear  and unambiguous terms provides for applicability of s. 5. [264F, E]      Kaushalya Rani  v. Gopal  Singh A.I.R.  1964 S.C.  260, explained.

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Petitions for Special leave to appeal (Crl) Nos. 918-919 of 1975.      From the Judgment and Order dated the 30th May, 1975 of the High  Court at  New Delhi  in Criminal Appeal No. 140 of 1971.      Frank Anthony  and K.  C. Dua,  for the  petitioner (In S.L.P. 918/75)      C. L. Sahu, for the petitioner (In S.L.P. 919/75)      B. P.  Maheshwari and  Suresh Sethi, for respondent (In both the petitions)      The Judgment of the Court was delivered by      BHAGWATI, J.  There are  two  special  leave  petitions which are  being disposed of by us by judgment after hearing both sides. There 261 is only  one question  of law which arises for determination and since  it lies in a very narrow compass and is concluded against the  petitioner by the language of the new statutory enactment in  s. 29(2)  of  the  Limitation  Act,  1963,  we thought that  it would be a futile exercise to grant special leave and then hear the appeals and hence we decided to hear these two  special leave  petitions after  issuing notice to the respondents  so that  the question  of law  arising  for consideration can  be finally  determined by a pronouncement of this Court.      The petitioner  in Special  Leave Petition  No. 918  of 1975, hereinafter  referred to  as Mangu  Ram,  was  at  all material times  a partner  in the  firm of  M/s Ram  Pershad Gondamal, which  is the petitioner in Special Leave Petition No. 919  of 1975. The firm of M/s Ram Pershad Gondamal owned a shop  in Kharibaoli,  Delhi where it sold inter alia Phool Gulab. On  8th August,  1969,  the  Food  Inspector  of  the Municipal Corporation  of Delhi  purchased  two  samples  of Phool Gulab  from the  shop of  the firm  of M/s Ram Pershad Gondamal for  analysis after  complying with  the  procedure prescribed by  law and  each sample  was divided  into three parts, out  of which one part was sent to the Public Analyst for analysis,  the other  was retained by the Food Inspector and the  third was  handed over  to Mangu  Ram who  sold the samples on  behalf of  the firm of M/s Ram Pershad Gondamal. The first  sample was marked O. P. K. 169 and the second was marked O.  P. K.  170. It  was found  from the report of the analysis made by the By the Public Analyst that both samples O. P. K. 169 and O. P. K. 170 were adulterated and hence the Municipal Corporation  Delhi filed  two complaints,  one  in respect of  each sample,  against Mangu  Ram and the firm of M/s Ram  Pershad Gondamal  in  the  Court  of  the  Judicial Magistrate, 1st  Class Delhi  for an offence under s. 7 read with s. 15 of the Prevention of Food Adulteration Act, 1954. These two complaints were consolidated and tried together by the learned  Judicial Magistrate.  During the  course of the trial, on  an application  made by Mangu Ram and the firm of M/s Ram  Pershad Gondamal,  one part  of  each  of  the  two samples lying  with them  was sent  by the  learned Judicial Magistrate to  the Director,  Central  Food  Laboratory  for analysis as  required by  s. 13,  sub-s. (2) of the Act. The Director Central  Food Laboratory,  analysed the two samples sent to  him, and issued a certificate in respect of each of them showing  the result of the analysis. The certificate in respect of  sample O.  P. K.  169  showed  the  presence  of Tartrazine Indigo  Carmine which  was then  a  non-permitted

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Coal Tar  dye,  but  subsequently  permitted  by  reason  of amendment of  rule 29 of the Prevention of Food Adulteration Rules 1955, while the certificate in respect of sample O. P. K. 170  revealed the  presence of  Rhodamine B, which was at all times a non-permitted coal tar dye. The learned Judicial Magistrate, in  view of  those certificates of the Director, Central Food  Laboratory, came  to the  conclusion that both the samples  sold by  Mangu Ram on behalf of the firm of M/s Ram Pershad Gondamal were adulterated, but since Phool Gulab of these  two samples  was purchased  by the firm of M/s Ram Pershad Gondamal  from M/s  Venkateshwara &  Co, which was a large manufacturing  concern and hence presumably a licensed manufacturer, the  learned Judicial  Magistrates  held  that Mangu Ram and the firm of 262 M/s Ram  Pershad Gondamal were entitled to the benefit of s. 19, sub-s.  (2) of the Act and accordingly acquitted them by an order dated 18th March, 1971.      The Municipal  Corporation of Delhi, being aggrieved by the order  of acquittal,  made an  application to  the  High Court of  Delhi under  s. 417,  sub-s. (3)  of the  Code  of Criminal Procedure,  1898 for  special leave  to appeal from the order  of acquittal.  Sub-s. (4) of s. 417 required that the application  for special leave should be made before the expiry of sixty days from the date of the order of acquittal and, therefore,  after excluding the time taken in obtaining certified copy  of the  order of  acquittal, the application for special  leave should  have been  filed on  25th August, 1971, but it came to be filed two days late, namely, on 27th August, 1971.  The Municipal Corporation of Delhi therefore, made an  application for condonation of delay by invoking s. 5 of  the Limitation  Act, 1963  and pleaded  that there was sufficient  cause   which  prevented   it  from  making  the application for  special leave  within time. The High Court, by an  order dated 3rd November, 1971, condoned the delay as there was in its opinion sufficient cause for not making the application for  special leave within the time prescribed by sub-s. (4)  of s.  417 and,  taking the view that this was a fit case  which deserved  the exercise  of discretion  under sub-s. (3)  of s.  417, the High Court granted special leave to the  Municipal Corporation of Delhi to appeal against the order of acquittal.      The appeal  was thereafter heard by a Division Bench of the High  Court. The High Court took the view that there was no evidence  on record  to show that M/s Venkateshwara & Co. from whom  Phool Gulab  was purchased by the firm of M/s Ram Pershad Gondamal  was a licensed manufacturer, nor was there any written  warranty in the prescribed form obtained by the firm of  M/s Ram  Pershad Gondamal  from M/s Venkateshwara & Co. and  hence the  defence under  s. 19  sub-s. (2) was not available to  Mangu Ram  and the  firm of  M/s  Ram  Pershad Gondamal. Since  the certificates  issued by  the  Director, Central Food  Laboratory showed unmistakably the presence of non-permitted coal tar dye in both the samples, there was no doubt, said  the High  Court,  that  the  two  samples  were adulterated and  in this  view the  High Court set aside the acquittal of  Mangu Ram  and the  firm of  M/s  Ram  Pershad Gondamal and  convicted them  of the offence under s. 7 read with s.  16 of  the Act  for selling  adulterated samples of Phool Gulab  to the Food Inspector. The sentence imposed for the offence  in respect  of sample  O. P.  K. 169 was only a sentence of  fine since  coal tar  dye found  in that sample subsequently came  to be  permitted by the amendment of Rule 29, but  so far as the offence in respect of sample O. P. K. 170 was  concerned, Mangu  Ram was  sentenced to  suffer six

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months rigorous  imprisonment and  to  pay  a  fine  of  Rs. 1,000/-or in  default to  suffer rigorous imprisonment for a further period  of three  months, while  the firm of M/s Ram Pershad Gondamal  was sentenced to pay a fine of Rs. 1000/-. Mangu Ram and the firm of M/s Ram Pershed Gondamal thereupon filed the  present petitions  for special  leave  to  appeal against the  order of conviction and sentence passed against them. 263      There was nothing that could be said on behalf of Mangu Ram and  the firm  of M/s Ram Pershad Gondamal on the merits of the conviction and sentence since the certificates of the Director,  Central   Food  Laboratory   clearly  showed  the presence of  non-permitted coal  tar dye in both the samples and it  was impossible  to contend that the two samples were not adulterated.  The only  argument which could be advanced on their  behalf was  and that was the only argument pressed before us-that  the time  limit of  sixty days prescribed in sub-s. (4)  of s.  417 for  the making of an application for special leave  under  sub-s.  (3)  of  that  section  was  a mandatory and  inexorable time  limit  which  could  not  be relieved  against   or   relaxed   and   it   excluded   the applicability of  s. 5  of the  Limitation Act, 1963. It was urged that  having regard to the clear and specific language of sub-s.  (4) of  s. 417  which left  no scope for doubt or ambiguity, the  High Court was statutorily obliged to reject an application  for special  leave made  after the expiry of sixty days  from the  date of  the order of acquittal and it had no  jurisdiction to extend this time limit of sixty days by resort  to  s.  5  of  the  Limitation  Act,  1963.  This contention was sought to be supported before by reference to a decision  of this  Court  in  Kaushalya  Rani’s  v.  Gopal Singh(1), Now,  prima facie,  it might  seem at  first blush that the  decision in  Kaushalya Rani’s  case(1) is directly applicable in  the present case and clinches the decision of the issue  in favour  of Mangu  Ram and  the firm of M/s Ram Pershad Gondamal.  But a closer scrutiny will reveal that it is not  so. The  decision in  Kaushalya Rani’s  case (1)  is clearly distinguishable from the present case.      The question which arose for consideration in Kaushalya Rani’s case(1)  was apparently  the same  as in  the present case,  namely,   whether  the   time  limit  of  sixty  days prescribed in sub-s. (4) of s. 417 for making an application for special  leave under  sub-s. (3) of that . section could be extended  by invoking  s. 5 of the Indian Limitation Act, 1908. This  Court held that sub-s. (4) of s. 417 laid down a special  period  of  limitation  for  an  application  by  a complainant for  special leave to appeal against an order of acquittal and "in that sense, this rule of sixty days bar is a special law, that is to say, a rule of limitation which is specially provided  for in  the Code  itself which  does not ordinarily provide for a period of limitation for appeals or applications. This Court pointed out that since "the special rule of limitations laid down in sub-s. (4) of s. 417 of the Code is  a special  law of  limitation governing  appeals by private prosecutors, there is no difficulty in coming to the conclusion that  s. 5 of the Limitation Act is wholly out of the way, in view of s. 29(2) (b) of the Limitation Act." The applicability of s. 5 of the Indian Limitation Act, 1908 was the held  to  be  excluded  in  determining  the  period  of limitation of  sixty days prescribed in sub-s. (4) of s. 417 by reason  of s.  29(2)(b) of  that Act which provided in so many terms  that "for  the purpose of determining any period of limitation prescribed for any suit, appeal or application by any  special or  local law,  the remaining  provisions of

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this Act"  that is sections other than ss. 4, 9 to 18 and 22 "shall not  apply." Now,  there can  be no doubt that if the present case were 264 governed by  the Indian  Limitation Act, 1908, this decision would wholly  apply and  the Municipal  Corporation of Delhi would not  be entitled to invoke the aid of s. 5 of that Act for the  purpose of  extending the  period of  limitation of sixty days  prescribed in  sub-s.  (4)  of  s.  417  for  an application by  a complainant  for special  leave to  appeal against an  order of  acquittal. But  the Indian  Limitation Act, 1908  has clearly  no application  in the present case, since that Act is repealed by the Limitation Act, 1963 which came into  force with  effect from 1st January, 1964 and the present case must, therefore, be decided by reference to the provisions of the Limitation Act, 1963.      There is  an important departure made by the Limitation Act, 1963  in so  far as  the provision  contained in s. 29, sub-s. (2) is concerned Whereas under the Indian. Limitation Act, 1908  s. 29,  sub-s. (2),cl.  (b) provided that for the purpose of  determining any  period of limitation prescribed for any  suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than these  contained in  ss. 4,  9 to  18 and 22, shall not apply and, therefore, the applicability of s. 5 was in clear and specific  terms excluded,  s.  29,  sub-s.  (2)  of  the Limitation Act,  1963 enacts  in so  many terms that for the purpose of  determining the  period of limitation prescribed for any  suit, appeal or application by any special or local law the  provisions contained  in ss.  4 to  24, which would include s.  5, shall apply in so far as and to the extent to which they  are not  expressly excluded  by such  special or local law.  Section 29,  sub-s. (2),  cl. (b)  of the Indian Limitation Act. 1908 specifically excluded the applicability of s. 5, while s. 29, sub-s. (2) of the Limitation Act, 1963 in  clear   and   unambiguous   terms   provides   for   the applicability of  s. 5  and the  ratio of  the  decision  in Kaushalya Rani’s case(1) can, therefore, have no application in cases  governed by  the Limitation’ Act, 1963, since that decision proceeded  on the hypothesis that the applicability of s. 5 was excluded by reason of s. 29(2) (b) of the Indian Limitation Act,  1908. Since  under the Limitation Act, 1963 s. 5  is specifically  made applicable by s. 29. sub-s. (2), it can be availed of for the purpose of extending the period of limitation  prescribed by  a special  or local law if the applicant can  show that  he had  sufficient cause  for  not presenting the  application within the period of limitation. It is  only if  the special  or local law expressly excludes the applicability  of s.  5, that  it would stand displaced. There, as  pointed out  by this  Court in  Kaushalya  Rani’s case(1) the time limit of sixty days laid down in sub-s. (4) of s.  417 is a special law of limitation and we do not find anything in  this special  law which  expressly excludes the applicability of  s. 5. It is true that the language of sub- s. (4)  of s.  417 is  mandatory and  compulsive, in that it provides in no uncertain terms that no application for grant of special  leave to appeal from an order of acquittal shall be entertained  by the  High Court after the expiry of sixty days from  the date  of that  order of  acquittal. But  that would be  the language  of  every  provision  prescribing  a period  of   limitation.  It   is  because   a  bar  against entertainment  of   an  application  beyond  the  period  of limitation is  created by  a special  or local  law that  it becomes necessary to invoke the aid of s. 5 in order 265

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that the  application may  be entertained  despite such bar. Mere  provision   of  period   of  limitation  in  howsoever peremptory or  imperative  language  is  not  sufficient  to displace the  applicability of  s.  5.  The  conclusion  is, therefore, irresistible  that in a case where an application for special  leave to  appeal from  an order of acquittal is filed after  the coming  into force  of the  Limitation Act, 1963, s. 5 would be available to the applicant and if he can show that  he had  sufficient cause  for not  preferring the application within  the time  limit of sixty days prescribed in sub-s. (4) of s. 417, the application would not be barred and despite  the expiration of the time limit of sixty days, the High  Court would  have the  power to  entertain it. The High Court,  in the  present case,  did not,  therefore, act without  jurisdiction   in  holding   that  the  application preferred by  the Municipal  Corporation of  Delhi  was  not barred by  the time  limit of sixty days laid down in sub-s. (4) of  s. 417  since the Municipal Corporation of Delhi had sufficient cause  for not  preferring the application within such time limit. The order granting special leave was in the circumstances not  an order  outside the  power of  the High Court.      We do  not, therefore,  see any reason to grant special leave to  Mangu Ram and the firm of M/s Ram Pershad Gondamal to appeal  against the  order  of  the  High  Court  and  we accordingly dismiss the petitions for special leave filed by them. P.B.R.                    Special Leave Petitions dismissed. 266