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CASE NO.:

Appeal (crl.) 1076 of 2001

Special Leave Petition (crl.) 1617 of 2001

PETITIONER:

STATE (DELHI ADMINISTRATION)..

Vs.

RESPONDENT:

DHARAMPAL@

DATE OF JUDGMENT: 19/10/2001

BENCH:

K.T.Thomas, S.N.Variava

JUDGMENT:

S. N. VARIAVA, J.

Leave granted.

Heard parties.

These appeals are against the Judgment of the Delhi High Court

dated 20th November, 2000. By this Judgment a number of appeals, filed by

the appellants herein, have been dismissed. All these appeals are against the

said common Judgment. They are based on almost similar facts and raise

common question of law. They are, therefore, being disposed of by this

common Judgment.

It must be mentioned that against the Judgment dated 20th November,

2000 other SLPs had also been filed before this Court. Those were

dismissed leaving the questions of law open.

In this Judgment the facts in Criminal Appeal No. . of 2001

[arising out of SLP (Crl.) No. 1617 of 2001] are being set out. The facts of

the other Appeals need not be set out as they are more or less similar.

On 29th August, 1988 the Food Inspector purchased a sample of Lal

Mirch Kutti from M/s Vashno Panjabu Dhaba, H-1, Chander Nagar, Delhi.

The Respondent was the person who had sold Lal Mirch to the Food

Inspector. The sample purchased was divided into three equal parts and put

into bottles which were sealed. One sample was sent to the Public Analyst,

who, by his report dated 6th August, 1988 found the same to be non-

confirming to the prescribed standards. On 4th May, 1989 after obtaining

sanction from the competent authority, under Section 20 of the Prevention of

Food Adulteration Act (hereinafter called the Act), a complaint was filed in

the Court of learned Metropolitan Magistrate. The Respondent exercised his

right under Section 13(2) of the Act. Accordingly a sample was sent to the

Director, Central Food Laboratory for analysis. A report was given by the

Director, Central Food Laboratory. He found the sample to contain moisture

as 20.01 % and as insoluble in H.C.L. as 1.92 % as against the maximum

standard of 12% and 1.3% respectively. He also found adulterating

material, starches and colouring material in the sample.

The Respondent was after a trial convicted by the learned

Metropolitan Magistrate by his Judgment dated 23rd /26th February, 1991.

He was sentenced to rigorous imprisonment for 1 1/2 years and to pay a fine

of Rs. 5,000/- and in default of payment of fine to further undergo simple

imprisonment for six months.

The Respondent filed an Appeal before the Sessions Judge, New

Delhi. The Sessions Judge by his Judgment dated 13th February, 1995

acquitted the Respondent only on the ground that the trial Court, while

recording the statement of the Accused/Respondent under Section 313 of the

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Criminal Procedure Code, did not read out the contents of the certificate of

the Director, Central Food Laboratory to the accused.

As against this acquittal the appellants filed an appeal to the High

Court of Delhi. As on identical grounds i.e. that the contents of the

certificate of the Director, Central Food Laboratory had not been put to the

accused while recording his statement under Section 313 Cr.P.C. many other

accused had also been acquitted a number of other appeals had also been

filed by the appellants.

All those appeals came to be dismissed by the High Court by the

impugned Order dated 20th November, 2000. The High Court dismissed all

the appeals on two grounds (a) that non putting of the contents of the

certificate of the Director, Central Food Laboratory, to the accused, whilst

recording his statement under Section 313 Cr.P.C., was a vital omission and

that the conviction could not therefore be maintained and (b) that all the

appeals were barred by limitation as they were not filed within a period of

60 days as provided under by sub-section 5 of Section 378 Cr.P.C. Hence

these appeals. In these appeals we are only concerned with the

abovementioned two questions of law.

Dealing with the first question first. This Court has, in the case of

Shivaji Sahabrao Bobade v. State of Maharashtra reported in (1973) 2 SCC

793, held as follows:

"It is trite law, nevertheless fundamental, that the prisoner's

attention should be drawn to every inculpatory material so as to

enable him to explain it. This is the basic fairness of a criminal

trial and failures in this area may gravely imperil the validity of

the trial itself, if consequential miscarriage of justice has

flowed. However, where such an omission has occurred it does

not ipso facto vitiate the proceedings and prejudice occasioned

by such defect must be established by the accused. In the event

of evidentiary material not being put to the accused, the Court

must ordinarily eschew such material from consideration. It is

also open to the appellate Court to call upon the counsel for the

accused to show what explanation the accused has as regards

the circumstances established against him but not put to him

and if the accused is unable to offer the appellate Court any

plausible or reasonable explanation of such circumstances, the

Court may assume that no acceptable answer exists and that

even if the accused had been questioned at the proper time in

the trial Court he would not have been able to furnish any good

ground to get out of the circumstances on which the trial Court

had relied for its conviction. In such a case, the Court proceeds

on the footing that though a grave irregularity has occurred as

regards compliance with Section 342, Cr. P.C., the omission

has not been shown to have caused prejudice to the accused."

(emphasis supplied)

The same view has been reiterated by this Court in the case of

Basavaraj R. Patil v. State of Karnataka reported in (2000) 8 SCC 740.

Thus it is to be seen that where an omission, to bring the attention of

the accused to an inculpatory material, has occurred that does not ipso facto

vitiate the proceedings. The accused must show that failure of justice was

occasioned by such omission. Further, in the event of an inculpatory

material not having been put to the accused, the appellate court can always

make good that lapse by calling upon the counsel for the accused to show

what explanation the accused has as regards the circumstances established

against the accused but not put to him.

This being the law, in our view, both the Sessions Judge and the High

Court were wrong in concluding that the omission to put the contents of the

certificate of the Director, Central Food Laboratory, could only result in the

accused being acquitted. The accused had to show that some prejudice was

caused to him by the report not being put to him. Even otherwise, it was the

duty of the Sessions Judge and/or the High Court, if they found that some

vital circumstance had not been put to the accused, to put those questions to

the counsel for the accused and get the answers of the accused. If the

accused could not give any plausible or reasonable explanation it would

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have to be assumed that there was no explanation. Both the Sessions Judge

and the High Court have overlooked this position of law and failed to

perform their duties and thereby wrongly acquitted the accused.

We further find that in all these cases, the copy of the certificate of the

Director, Central Food Laboratory had been supplied to the accused. They

were thus aware of the contents of the certificate. It has to be seen that

under the Prevention of Food Adulteration Act the prosecution is based upon

the contents of either the report of the Public Analyst or the certificate of the

Director of Central Food Laboratory. During their examination, under

Section 313 Cr.P.C. questions pertaining to the certificate were put to the

accused. The explanation of the accused, in respect of the certificate, had

been called for. In our view in such cases it is enough if the attention of the

accused is brought to the report or the certificate as the case may be. It is

not necessary that the contents of the report be also put to the accused.

Let us now see what were the questions put to the accused in these

cases. We have been shown the statement of the accused, under Section 313

Cr.P.C. in only two of the appeals. However, it is admitted that in other

cases also the questions were similar.

In Criminal Appeal No. .. of 2001 [arising out of SLP (Crl.) No.

1617 of 2001] the question put to the accused and the answer obtained from

him are as follows:

"Q: It is further in evidence that on receipt of copy of P.A.'s and

intimation letter, you exercised your right under Section

13(2) and Director, CFL vide his certificate Ex.PX declared

the sample to be adulterated. What have you to say?

Answer: It is a matter of record."

In Criminal Appeal No. .. of 2001 [arising out of SLP (Crl.) No.

2437 of 2001] the question put and the answer given are as follows:

"Q. It is further in evidence that intimation letter alongwith

copy of PA report was served on you IO the Court and you

exercised your right u/s 12(2) of the PFA Act and certificate

of director is Ex. PX. What have to say?

Ans. The certificate is erroneous and it is the result of the

negligence committed by the F.I. in the sample

proceeding."

Thus it is to be seen that the questions clearly indicated that what was being

put to the accused were the contents of the certificate. It is also to be seen

that the accused clearly understood that what was being put to them was the

contents of the certificate. The accused Ashwani Kumar (in Criminal

Appeal No. .. of 2001 [arising out of SLP (Crl.) No. 2437 of 2001]) in

fact answered that the certificate was erroneous and was a result of

negligence committed by the Food Inspector in the sample proceedings.

Similarly accused Dharampal (in Criminal Appeal No. .. of 2001

[arising out of SLP (Crl.) No. 1617 of 2001]) answered that the report was

a matter of record. The accused gave their answers to the contents of the

certificate. Clearly no prejudice had been caused to them. Before us also it

could not be shown that any prejudice had been caused to them. This aspect

of the matter was completely overlooked by both the Sessions Judge and the

High Court. In our view, neither the Judgment of the Sessions Judge nor the

reasoning of the High Court on this point can be sustained.

The second question had only been urged before the High Court. The

submission made before the High Court was that the appeal had not been

filed by a public servant and therefore the limitation for filing such an appeal

was 60 days. This submission found favour with the High Court. In all

fairness, to counsel appearing for the respondents before us, it must be stated

that such a contention was not canvassed before this Court, as it is clearly an

untenable contention. Before us it was submitted by Mr. Lalit, that the

appeals should have been filed within 90 days from the date of the Order as

provided in Article 114 of the Limitation Act.

To understand what the periods of limitation under Section 378 of the

Cr.P.C. are one must first look at Section 417 as it stood in the Criminal

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Procedure Code, 1898. Section 417, as it then stood, read as follows:

"417. (1) Subject to the provisions of sub-section (5), the State

Government may, in any case, direct the Public Prosecutor to

present an appeal to the High Court from an original or

appellate order of acquittal passed by any Court other than a

High Court.

(2) If such an order of acquittal is passed in any case in

which the offence has been investigated by the Delhi Special

Police Establishment constituted under the Delhi Special Police

Establishment Act, 1946, the Central Government may also

direct the Public Prosecutor to present an appeal to the High

Court from the order of acquittal.

(3) If such an order of acquittal is passed in any case

instituted upon complaint and the High Court, on an application

made to it by the complainant in this behalf, grants special

leave to appeal from the order of acquittal, the complainant may

present such an appeal to the High Court.

(4) No application under sub-section (3) for the 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.

(5) If, in any case, the application under sub-section (3)

for the grant of special leave to appeal from an order of

acquittal is refused, no appeal from that order of acquittal shall

lie under sub-section (1)."

Thus it is to be seen that, under Section 417 of the Criminal Procedure Code,

1898, an appeal against acquittal could be filed by the State Government or

by the Central Government. An appeal against acquittal could in cases

instituted upon complaint, be filed by the complainant provided the

complainant obtained special leave to appeal from the High Court. Under

Section 417(4) no application for grant of special leave could be entertained

by the High Court after an expiry of 60 days from the order of acquittal.

Thus, under Section 417 an application for special leave to appeal had to be

made only by the complainant. If the State Government or the Central

Government filed an Appeal then no application for special leave to appeal

had to be made.

It is because of this that Article 114(a) of the Limitation Act provided

that an appeal, by the State Government or the Central Government under

sub-sections (1) or (2) of Section 417 of the Criminal Procedure Code, 1898,

was to be filed within 90 days from the date of the Order. Article 114 (b)

provides that an Appeal under sub-section 3 of Section 417 of the Criminal

Procedure Code, 1898; must be filed within 30 days from date of grant of

special leave.

Thus under Section 417 of the Criminal Procedure Code, 1898 no

application for special leave to appeal had to be made by the State

Government or the Central Government, if they filed an appeal against

acquittal. The period of 60 days provided in Section 417(4) did not apply to

an appeal by the State Government or the Central Government. The period

of limitation for the State Government or the Central Government was only

under Article 114 (a) of the Limitation Act.

Also to be noted that the right of the State Government to file an

Appeal under Section 417(1) was subject to provisions of sub-section (5).

Sub-section (5) provided that if special leave to appeal had been refused to a

complainant then the State Government could not maintain an appeal.

In the Criminal Procedure Code, 1973, Section 417 has been

substituted by Section 378, which reads as follows:

"378. Appeal in case of acquittal. - (1) Save as otherwise

provided in sub-section (2) and subject to the provisions of sub-

sections (3) and (5), the State Government may, in any case,

direct the Public Prosecutor to present an appeal to the High

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Court from an original or appellate order of acquittal passed by

any Court other than a High Court [or an order of acquittal

passed by the Court of session in revision].

(2) If such an order of acquittal is passed in any case in

which the offence has been investigated by the Delhi Special

Police Establishment constituted under the Delhi Special Police

Establishment Act, 1946 (25 of 1946), or by any other agency

empowered to make investigation into an offence under any

Central Act other than this Code the Central Government may

also direct the Public Prosecutor to present an appeal subject to

the provisions of sub-section (3) to the High Court from the

order of acquittal.

(3) No appeal under sub-section (1) or sub-section (2)

shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case

instituted upon complaint and the High Court, on an application

made to it by the complainant in this behalf, grants special

leave to appeal from the order of acquittal, the complainant may

present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of

special leave to appeal from an order of acquittal shall be

entertained by the High Court after the expiry of six months,

where the complainant is a public servant and sixty days in

every other case, computed from the date of that order of

acquittal.

(6) If, in any case, the application under sub-section (4)

for the grant of special leave, to appeal from an order of

acquittal is refused, no appeal from that order of acquittal shall

lie under sub-section (1) or under sub-section (2)."

A comparison of Section 378 with the old Section 417 shows that,

whilst under the old Section no application for leave to appeal had to be

made by the State Government or the Central Government, now by virtue of

Section 378(3) the State Government or the Central Government have to

obtain leave of the High Court before their appeal could be entertained.

Sub-Section (4) of Section 378 is identical to Sub-Section (3) of Section

417. Thus a complainant desirous of filing an appeal against acquittal must

still obtain special leave. Thus, Section 378 makes a distinction between an

appeal filed by the State Government or the Central Government, who only

need to obtain "leave", and an appeal by a complainant who needs to obtain

"special leave". The limitation provided in sub-section (5) is only in respect

of applications under sub-section (4) i.e. application for special leave to

appeal by a complainant. A complainant may be either a public servant or a

private party. If the complainant is a public servant then the period of

limitation for an application for special leave is 6 months. If the complainant

is a private party then the period of limitation for an application for special

leave is 60 days. The periods of 6 months and/or 60 days do not apply to

appeals by the State Government [under sub-section (1)] or the Central

Government [under sub-section (2)]. Appeals by the State Government or

the Central Government continue to be governed by Article 114(a) of the

Limitation Act. In other words, those appeals must be filed within 90 days

from the date of the order appealed from. Needless to state if there is a delay

in filing an appeal by the State Government or Central Government it would

be open to them to file an application under Section 5 of the Limitation Act

for condonation of such delay. That period can be extended if the court is

satisfied that there was sufficient cause for not preferring the appeal within

the period of 90 days. The High Court was thus wrong in concluding that

the appeals had to be filed within 60 days as provided in Section 378(5).

It must also be noted that sub-section (6) of Section 378 is identical to

sub-section (5) of Section 417. Thus under Section 378 also the State

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Government cannot maintain an appeal if special leave to appeal is refused

to the complainant. In this behalf there is no change. Section 417(1)

specifically provided that it was "subject to provisions of sub-section (5)".

Section 317(1) similarly provide that it is "subject to sub-sections (3) and

(5)". Sub-section (3) is the newly added provision which now provides that

an appeal by the State or Central Government cannot be entertained without

leave of the High Court. However the reference to sub-section (5) in sub-

section (1) is clearly an inadvertant mistake. As pointed out above sub-

section (5) of Section 378 applies only to application for special leave by a

complainant. Sub-section (5) of Section 378 has no application to an appeal

by the State Government or to an application for leave under sub-section (3).

What the Legislature clearly intended was to continue to provide that an

appeal by the State Government would not be maintainable if special leave

to appeal had been refused to a complainant. Thus sub-section (1) of

Section 378 was to be subject to provisions of sub-section (6) and not sub-

section (5) as inadvertantly provided therein. Inadvertantly the figure (5) in

Section 417(1) was continued, without noticing that now under Section 378

the relevant provision was sub-section (6). In our view it is clear that the

figure (5) in Section 378(1) is inadvertantly retained. Thus in Section 378(1)

the figure (6) will have to be read in place of the figure (5).

There is one last fact which must be mentioned. We find that the

main argument on the question of limitation was made before the High

Court on behalf of Respondent Dharampal [i.e. the Respondent in Criminal

Appeal No. .. of 2001 (arising out of SLP (Crl.) No. 1617 of 2001)].

It had been argued on his behalf that the Appeal against his acquittal was

barred by limitation as there was a delay of 95 days. The High Court

accepted this contention. We however find from a copy of an Order

produced before us that in his Appeal, before the High Court, the delay had

already been condoned. The Order, which is available in this SLP Paper

Book, reads as follows:

O R D E R

21.5.96 Present: Mr. B.T. Singh for the Petitioner

Crl. M. 2245/96.

Leave granted.

This application is disposed of.

Crl. M. 2246/96.

Delay in refiling the appeal is condoned.

This application is disposed of.

Crl. A. 92/96.

Let the appeal be registered. Appeal is admitted.

Sd/-

Arun Kumar, J.

Sd/-

May 21, 1996. Mohd. Shamim, J."

The delay already having been condoned there was no question of the High

Court subsequently entertaining and upholding an argument on delay. This

does not seem to have been brought to the notice of the High Court.

In any view of the matter, the impugned Order cannot be sustained.

The Orders of the Sessions Judge dismissing the Appeals also cannot be

sustained. Therefore, the impugned Judgment dated 20th November, 2000

as well as the Orders of the Sessions Judge in the above mentioned three

cases are set aside. The appeals which had been filed by the respondents in

the Court of Additional District and Sessions Judge are hereby restored to

the file of the Additional District & Sessions Judge, New Delhi. They shall

now be disposed of on merits, in accordance with law.

These appeals stand disposed of accordingly. There will be no Order

as to costs.