Rakesh Kainthla,Judge

1. The Drug Inspector for Kangra and Chamba, alongwith the police inspected the premises of petitioner/accused Suresh Sood being run in the name and style of M/S Modern Medical Store, Palampur, District Kangra (HP) on 16.05.2004. Petitioner/accused Suresh Sood was present in the shop at the time of the inspection. The search was conducted in the presence of witnesses Chanda Ram, Nand Lal, Mastan Singh (sub- inspector, P.S. Palampur) and Parkash Chand. During the search, certain boxes of drugs were found on the premises. The petitioner Suresh Sood was asked to produce purchase and sale records of the drugs as required under the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder. However, he could not produce any sales records. Hence, the Drug Inspector seized the drugs in the presence of witnesses. These were put in a box, which was sealed and labelled as per the law. Form No.16 was filled on the spot and the same was handed over to the proprietor. Custody orders were obtained from the learned Chief Judicial Magistrate, Kangra at Dharamshala. A notice was served upon Suresh Sood on 16.05.2004 forthe production of sale purchase record of the drugs seized by the Drug Inspector under provisions of the Drugs and Cosmetics Act 1940 and Rules framed thereunder. A show cause notice was also served upon the petitioner/accused. An intimation of seizure was given to the Drugs Controlling Authority. The accused sent a letter dated 24.05.2004 and submitted the photocopy of invoice No. 4485 dated 15.11.2003 of M/s Rajagan Medical Agencies. The premises were again inspected and the original invoice of 4485 and cash memo were seized in the presence of witnesses Brahmu Ram, Dharam Pal, Parkash Chand and Parkash Singh. Drug Inspector wrote a letter dated 26.05.2004 for the production of carbon copies of cash memos from 01.04.2003 to 31.03.2004 including cash memos No 36oo to 4000 and 4400 to 4800. The accused produced the carbon copies on 27.05.2004, which were seized in the presence of Sanjeev, Parkash Chand and K.C. Bharti. The matter was taken up with the District Drug Inspector, Amritsar vide letter dated 01.06.2004 who informed about the non-existence of M/S Rajgan Medical Agencies, Katra Sher Singh, Amristar and non-genuineness of its invoice No. 4485 dated 15.11.2003 vide letter dated 07.06.2004. The matter was taken up with the Drug Controlling Authority vide letter dated 28.05.2004 for getting the prosecution sanction. The prosecution sanction was obtained on 28.08.2010 and the complaint was filed thereafter.

2. The learned Trial Court summoned the accused. He filed an application under Section 227 of Cr.P.C. for his discharge. It was asserted that the basic ingredients of the commission of offence were missing and the person who had raided the premises of the accused, is the same person who has given prosecution sanction. The premises of the accused were searched in the year 2004; however, the complaint was filed in the year 2011, beyond the period of limitation. Hence, it was prayed that the petitioner/accused be discharged.

3. The learned Trial Court held that the person raided the premises in the capacity of Drug Inspector but gave the sanction in the capacity of Assistant Drug Controller. These are different capacities and will not vitiate the sanction. The sanction was obtained in the year 2010, and the complaint was filed in the year 2011. The benefit of Section 470(3) of Cr.P.C. will be available to the Drug Inspector. The time spent in obtaining the sanction has to be excluded and the complaint cannot be said to be barred by limitation. Consequently, the application was dismissed.

4. Being aggrieved from the order passed by the learned Trial Court, the accused filed a revision, which was decided by learned Sessions Judge, Kangra at Dharamshala. The learned Revisional Court held that the raid was conducted in the year 2004. The matter remained pending for obtaining prosecution sanction, which was given late. The learned Trial Court rightly relied upon the provisions of Section 470(3) of Cr.P.C. and the complaint cannot be said to be barred by limitation. The person conducting the raid and giving the sanction was the same but he was holding different capacities and the sanction was not vitiated; hence the revision petition was dismissed.

5. Feeling aggrieved and dissatisfied with the orders passed by the learned Courts below, the present petition has been filed for quashing of the complaint pending before the learned Judicial Magistrate First Class Court No.1, Dharmshala against the accused. It has been asserted that the complaint was filed after seven years of the raid. The Drug Inspector, who had raided the premises of the petitioner had granted the sanction and the sanction was vitiated. The basic ingredients of the commission of offences are missing. The learned Trial Court erred in discarding these pleas. The record was seized on 14.06.2004 and there is no justification for remaining silent for 7 years. The cognizance was taken without affording any opportunity to the petitioner accused, which is illegal. The sanction was to be sought within one year and could not have been kept for such a long time. Hence, it was prayed that present revision be allowed and the complaint pending before the learned Trial Court be quashed.

6. The State has filed a reply reproducing the contents of the complaint filed before the learned Trial Court. It was asserted that prosecution sanction was sought from the Drug Controlling Authority vide letters dated 16.06.2004, 16.07.2004, 22.09.2004, 18.09.2006, 06.08.2007, 14.12.2007 and 13.08.2010. The prosecution sanction was granted on 28.08.2010 and the complaint was filed thereafter in the year 2011. The learned Courts below had rightly held that the benefit of Section 470(3) of Cr.P.C. is available to the Drug Inspector and the complaint was not barred by limitation. The person conducting the search and giving sanction were the same but he held different capacities and the sanction was not vitiated. The accused had produced the documents, which were found to be fake. The learned Trial Court had rightly framed the charges and there is no infirmity in the order passed by the learned Trial Court as affirmed by the learned Revisional Court. Hence, it was prayed that the present petition be dismissed.

7. A rejoinder denying the contents of the reply and affirming those of the petition was filed.

8. I have heard Mr. Ravinder Singh Jaswal, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State.

9. Mr. Ravinder Singh Jaswal, learned Counsel for the petitioner submitted that the complaint is hopelessly barred by the limitation. The period spent in obtaining sanction cannot be excluded as there is no requirement of obtaining sanction.The Drugs Inspector who had conducted the search had given the sanction, which is improper. Hence, he prayed that the petition be allowed and the order, passed by the learned Courts below be set aside.

10. Mr. Prashent Sen, learned Deputy Advocate General, supported the orders passed by the learned Courts below and submitted that no interference is required with the same.

11. I have given considerable thought to the submissions at the bar and have gone through the records carefully.

12. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765: (2023) 7 SCC 711 [LQ/SC/2023/711 ;] wherein it was observed at page 716:-the principle of fairness in the trial of the offences by barring belated prosecution. Delay in prosecution of offences causes undue hardship as it keeps the sword hanging on the heads of accused persons and it also results in the

"17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 [LQ/SC/2012/789] : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] [LQ/SC/2012/789] , this Court laid down the following guiding principles : (SCC pp. 482-84, para 27)

“27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon thecritical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the chargesheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiaei.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

13. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603, wherein it was observed:-

"26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”(emphasis supplied)

14. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:

"10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

15. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:

16. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.

17. It was submitted that the ingredients of the offences were not satisfied. This cannot be accepted. The accused produced invoice No. 4485 dated 15.11.2003, which invoice was found to be fake after verification. Section 18A of the Drugs and Cosmetics Act, 1941 provides that every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he had acquired the drug or cosmetic. Section 28 of the Act, punishes a person who fails to do so.

18. In the present case, the accused had provided the invoice of the non-existent firm which means that he had not disclosed the true address of the person from whom he had obtained the drugs. Hence, prima facie the accused violated Section 18A of the Drugs and Cosmetics Act which is punishable under Section 28 of the Act.

19. Rule 65 of the Drugs and Cosmetics Rules provides the condition of the license. Rule 65(3) provides that the record of the purchase of the drugs intended for sale or sold by retail shall be maintained by the licensee. Rule 65(6) provides that the licensee shall produce all registers and records maintained under the Rules.

20. In the present case, the record of the sale and purchase was not maintained and produced on demand, therefore, there is a violation of Rule 65 of the Drugs and Cosmetics Rules, which is punishable under Section 27 (d); therefore, the plea that ingredients of the commission of offence are not satisfied is prima facie not acceptable.

21. The accused has been charged for the commission of offences punishable under sections 27(d) and 28 of the Drugs and Cosmetics Act, 1940.

22. Section 27(d) of the Drugs and Cosmetics Act 1940, reads as under:

"27. Penalty for manufacturer, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,—

xxx

(d) any drug, other than a drug referred to in clause

(a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.]"

23. Section 28 read as under:-

"28. Penalty for non-disclosure of the name of the manufacturer, etc.—Whoever contravenes the provisions of Section 18-A or Section 24 shall be punishable with imprisonment for a term which may extend to one year, or with a fine which shall not be less than twenty thousand rupees or with both."

24. It is apparent from the perusal of these provisions that the maximum punishment provided under Section 27(d) of the Act ibid is two years. Section 28 of the Act ibid provides the punishment for a term which may extend to one year.

25. Section 468(2)(c) of Cr.P.C. provides a limitation of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Hence, a limitation period of three years will apply to the present case.

26. It was laid down by the Hon’ble Supreme Court in State of Rajasthan v. Sanjay Kumar, (1998) 5 SCC 82, [LQ/SC/1998/546] that the period prescribed under Section 468 of Cr.P.C. will start running from the day when the Drug Inspector comes to know of the violation of the Drugs Act. It was observed:-

"6. In the Code of Criminal Procedure, 1973, Chapter XXXVI has been added prescribing limitations for taking cognizance of certain offences with a view to expedite the process of detection and investigation of crimes and also to ensure observance of material evidence getting vanished. This chapter applies to all such offences for which the punishment prescribed is less than three years. But it does not apply to offences for which punishment prescribed is more than three years and to economic offences under various Acts, which are excluded under Central Act 12 of 1974 or any State Acts. It contains seven sections (467- 473). Section 467 defines the expression “period of limitation” used in the chapter. Section 468 creates a bar to taking cognizance of offences after a lapse of a period of limitation. Sections 469 to 473 deal with various aspects of computation of limitation. Of the aforementioned provisions, we are concerned with Sections 468 and 469. Sub-section (1) of Section 468 ordains that no court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the “period of limitation” prescribed thereunder. This, however, is subject to the other provisions of the Code. Sub-section (2) postulates different periods of limitation for offences with reference to the punishment provided for them; if the punishment provided for an offence in any Act is only fine, the period of limitation fixed is six months; if the offence is punishable with imprisonment for a term not exceeding one year, the period of limitation prescribed is one year and if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, the period of limitation laid down is three years. And sub- section (3) spells out the rule of limitation in cases of joinder of charges; if a person is tried for more offences than one, then the period of limitation will be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment; for example, if a person is tried for various offences and some of them are punishable with fine and some with imprisonment for a term less than a year and some for which the punishment is provided up to three years, then the period of limitation for all the offences, if they are tried together, will be three years.

7. Section 469 deals with the commencement of the period of limitation and it reads thus:

“469. Commencement of the period of limitation.—(1) The period of limitation, in relation to an offender, shall commence,—

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.”

A plain reading of the provision extracted above shows that in sub-section (1) three alternative starting points of limitation have been specified — (a) the date of the offence;

(b) the first day on which an offence came to the knowledge of the person aggrieved by the offence or to any police officer, whichever is earlier, in a case where the commission of the offence was not known to any of them, or (c) the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation, into the offence, whichever is earlier, but this can be called in aid in a case where it is not known by whom the offence was committed. Basically from the date of the offence, the period of limitation will start but there will be cases where the commission of offence or identity of the offender comes to the knowledge of those concerned with it long thereafter so in such situations clauses (b) and (c), as the case may be, would be the date of commencement of period of limitation.

8. Now we shall see which clause of sub-section (1) of Section 469 is attracted to the facts of the case. For this purpose, it will be necessary to revert to the facts of this case. The essence of the offences charged is the manufacture of adulterated, sub-standard, misbranded, spurious drugs within the meaning of the relevant provisions of the Act and/or storage, distribution and sale of such drugs in contravention of the provisions of the Act. On the date of collection of samples from Respondent 16, on 29-2-1988, it could not have been said that any offence was committed as selling of drugs per se is no offence and the quality of the drugs was not known to the Drugs Inspector, the complainant on that date. It is only when the report of the Government Analyst was received, that it came to light that the provisions of the Act are violated and offence is committed. So on the facts of this case, it cannot be said that clause (a) of Section 469(1) is attracted. That the drugs which were offered for sale were sub-standard/adulterated within the meaning of the Act, came to the knowledge of the Drugs Inspector only on 2-7-1988 when the report of the Government Analyst was received by him; and therefore, clause (b) of Section 469(1) will be attracted.

9. Under cognate legislations of different States, similar questions arose before the High Courts. In R.S. Arora v. State [1987 Cri LJ 1215 : (1987) 1 FAC 283 (Del)] the question which fell for consideration of the Delhi High Court was whether, for prosecution under Sections 7, 19 and 16(1) of the Seeds Act, 1966, the period of limitation of six months would start from the date of collection of samples under clause (a) or from the date of Seed Analyst's report for purposes of clause (b) of Section 469(1) CrPC. The learned Single Judge of the Delhi High Court took the view that the limitation commences from the date of submission of the report by the Seed Analyst to the Inspector, so Section 469(1)(b) would apply. The same view was taken by the Bombay High Court in Omprakash Gulabchandji Partani v. Ashok [1992 Cri LJ 2704 (Bom)].

10. In Satyanarayana General Traders v. State [(1993) 2 Crimes 203 (AP)] a learned Single Judge of the Andhra Pradesh High Court held that for prosecution of offences of misbranding under the Insecticides Act, 1968 the period of limitation would start from the date on which the report of the analyst was received but not from the date of taking samples and thus Section 469(1)(b) would be attracted.

11. We are in entire agreement with the views expressed by the learned Judges of the High Courts in the above cases.

12. For the above reasons, in the instant case, the limitation for the purpose of Section 468(2)(c) will commence from 2- 7-1988, the date of knowledge of the commission of offence to the officer concerned under Section 469(1)(b) but not from 29-2-1988 (the date of collection of samples by the Drugs Inspector) and as the complaint was filed on 28-6- 1991 which is within three years so the complaint is not barred by limitation under Section 468(2)(c). The High Court has missed this germane aspect and erroneously taken the date of commencement of the limitation as 29-2- 1988, the date on which the samples were collected by the Drugs Inspector from Accused 16. It is thus clear that the High Court has committed illegality in so computing the period of limitation, which results in a miscarriage of justice."

27. In the present case, a search was conducted on 16.05.2004.A letter was written by the Drug Inspector, Amritsar on 07.06.2004 that there was no firm known as M/S Rajgan Medical Agencies, Katra Sher Singh, Amritsar and invoice No. 4485 dated 15.11.2003 was not genuine. Hence, the Drug Inspector came to know about the commission of offence on 07.06.2004 after receipt of the letter. The period of limitation will start running from the date of receipt of the letter and will expire after 3 years on 07.06.2007. Admittedly the complaint was filed in the year 2011 beyond the period of limitation.

28. It was submitted that the prosecution sanction was obtained in the year 2010 and the time spent in obtaining the prosecution sanction has to be excluded. This plea was accepted by the learned Trial Court and Revisional Court.

29. Section 33M of the Drugs and Cosmetics Act, 1940 deals with the prosecution sanction and reads as under:

"33-M. Cognizance of offences.-(1) No prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub- section (4) of Section 33-G. (2) No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter."

30. It is apparent from the bare perusal of the Section that it applies to the prosecution under the Chapter, meaning thereby Chapter VA in which this Section has been incorporated.

31. Section 32 of the Act deals with the cognizance of the offence under Chapter IV and reads as under:-

32. Cognizance of offences.—

"(1) No prosecution under this chapter shall be instituted except by—

(a) an inspector; or

(b) any gazetted officer of the Central Government or a State Government authorised in writing on this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or

(c) the person aggrieved; or

(d) a recognised consumer association whether such a person is a member of that association or not.

(2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this chapter.

(3) Nothing contained in this chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this chapter.”

32. It is apparent from the bare perusal of Section that it does not provide for obtaining sanction before launching the prosecution. It was laid by the Delhi High Court in Sanofi India Ltd. v. Union of India, (2021) 3 HCC (Del) 691, that there is no requirement to obtain sanction for the prosecution of the offence under Chapter IV and Section 33 M and will only apply to the Chapter IV-A, where this Section has been incorporated. It was observed:

"24. Furthermore, the contention of the learned CGSC that a complaint could not be filed without obtaining an authorisation in writing cannot be accepted. Chapter IV of the Drugs and Cosmetics Act, 1940 deals with the manufacture, sale and distribution of drugs and cosmetics. Section 32 of the Drugs and Cosmetics Act, 1940, which provides for cognizance of offences reads as under:

“32. Cognizance of offences.— (1) No prosecution under this chapter shall be instituted except by—

(a) an inspector; or

(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or

(c) the person aggrieved; or

(d) a recognised consumer association whether such a person is a member of that association or not.

(2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this chapter.

(3) Nothing contained in this chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this chapter.”

“33-M. Cognizance of offences.—

(1) No prosecution under this chapter shall be instituted except by an inspector with the previous sanction of the authority specified under sub-section

(4) of Section 33-G.

(2) No court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this chapter.”

27. A perusal of Section 33-M shows that for an offence under Chapter IV-A of the Drugs and Cosmetics Act, sanction of the authority specified under sub-section (4) of Section 33-G is required. There is no requirement of obtaining any sanction for an offence under Chapter IV of the Drugs and Cosmetics Act.

28. In the present case the report has been received by the Drug Inspector on 21-4-2016 and, therefore, the terminus a quo for limitation would start from 21-4-2016. The complaint which has been filed on 2-9-2019 is, therefore, clearly out of the limitation period prescribed under Section 468CrPC.

29. The right which is accrued to the accused as a result of the expiry of the limitation period is a valuable right that flows from the accused's right to a speedy and fair trial as conceptualised under Article 21 of the Constitution of India. Accordingly, the cognizance that is taken by a court in view of Section 473CrPC. extending the limitation period requires notice to be issued to the accused, a hearing of both the accused and the complainant, and the consequent decision must display the court's application of mind and should provide reasons for extending the limitation.

30. It is trite law that it is the duty of the court to see whether a complaint has been filed within limitation or not. Though Section 473CrPC states that an extension of the period of limitation cannot be granted if the court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. There is no material on record to show that the trial court sought for any reasons for condoning the delay and further nothing is there to show that the State has made any endeavour to explain the delay in filing the complaint. The reason given by the learned CGSC that the complaints can be instituted only after getting the authority from the State under Section 32(a) of the Drugs and Cosmetics Act cannot be accepted in this case for the reason that no sanction is required for instituting a complaint in an offence under Chapter IV of the Drugs and Cosmetics Act, 1940.

31. A reading of the impugned orders of the learned trial court in conjunction with the law of limitation reveals to this Court that the learned trial court has erred in taking cognizance of Criminal Complaint No. 16817 of 2019 and that the impugned order dated 30-9-2019 fails to justify as to why the issue of limitation was not raised in the impugned order."

33. A similar view was taken by the Karnataka High Court in Emcure Pharmaceuticals Ltd. and Ors. vs. State of Karnataka (22.09.2022 - KARHC): MANU/KA/4700/202 wherein it was observed:

"14. The ground on which condonation of delay was sought was that the Drugs Inspector who was to register the complaint was awaiting sanction/permission from the hands of the Drugs Controller for registration of the crime and it is in the process of seeking sanction/permission 5 years and 7 months had passed by and, therefore, the delay was condonable. While submitting justification for condonation of delay, the learned High Court Government Pleader seeks to take support of Section 33M of the Act. It therefore becomes germane to notice Section 33M of the Act. Section 33M of the Act forms a part of Chapter IV-A of the Act. The applicability under Chapter IV-A of the Act and Section 33M of the Act read as follows:

"[CHAPTER IV-A PROVISIONS RELATING TO 254[AYURVEDIC, SIDDHA AND UNANI DRUGS]

33-B. Application of Chapter IV-A.-This Chapter shall apply only to 255[Ayurvedic, Siddha and Unani drugs].

"33-M. Cognizance of offences.-(1) No prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33-G.

(2) No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter."

(Emphasis supplied)

Section 33B of the Act makes Chapter IV-A applicable to certain drugs which are Ayurvedic, Siddha or Unani. Section 33M of the Act deals with taking of cognizance of offences which mandates that no prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33G of the Act. Section 33M of the Act comes under ChapterIVA. Chapter IVA exclusively deals with the provisions relating to Ayurvedic, Siddha and Unani drugs. Section 33M of the Act forms part of Chapter IVA which deals with the aforesaid drugs. Therefore, Section 33M of the Act cannot but be read to be for the purpose of those drugs enumerated in the said Chapter. Sanction under Section 33G of the Act for registration of the crime or cognizance by the concerned court under Section 33M of the Act would only be for enumerated drugs in Chapter IVA. Section 33B of the Act makes the entire Chapter IVA to become applicable only to Ayurvedic, Siddha and Unani drugs. An unmistakable inference that would flow from a perusal of the provisions extracted hereinabove would be that for a prosecution to be initiated under Section 27(d) of the Act, the sanction would be required only if the drugs would be either Ayurvedic, Siddha or Unani. Section 33M of the Act mandates so only if the drugs are those which come within the Chapter.

15. The drugs in the case at hand are not the ones which are either Ayurvedic, Siddha or Unani. They are allopathic drugs and therefore, Section 33M of the Act on the face of it, is inapplicable to the fact situation. The sheet anchor of the learned High Court Government Pleader to lend support to the enormous delay in registering the complaint taking recourse of Section 33M of the Act would thus tumble down. There was absolutely no necessity to await sanction/permission from the Drugs Controller to register the complaint as the legal sample of the drug that was drawn was not of either Ayurvedic, Siddha or Unani. If the Drugs Inspector has by taking recourse to a wrong provision of law sought sanction from the hands of the Drugs Controller to register prosecution, it cannot be said to be condonable as it was a question of jurisdiction. The statutory bar that kicks in terms of Section 468 of the Cr.P.C. could not have been condoned by both Courts as it gets at the root of the matter.

16. It is not the date on which the Court takes cognizance of the offence, that would become applicable for the rigours of Section 468 of the Cr.P.C. to operate, but the date on which the crime comes to be registered. In the case at hand, the crime itself is registered after 5 years and 7 months of receipt of the report of the sample from the hands of the Laboratory. Therefore, such delay which generates a statutory bar could not have been condoned on the specious plea of the prosecution awaiting unnecessary sanction or permission on a misreading of the statute. Therefore, the entire proceedings right from registration of the crime are rendered unsustainable for they are all without jurisdiction, only in the teeth of Section 468 of the Cr.PC."

34. A heavy reliance was placed upon the guidelines issued by the Central Drugs Standard Control Organization, which mention that the prosecution by the Inspectors shall be launched based on written permissions of the Controlling Authority who shall consider the recommendations of the Screening Committee while taking final decision in the matter. It is difficult to see how the guidelines issued by the Central Drugs Standard Control Organization will supersede the provisions of the Act. It was laid down by Allahabad High Court in Vijay Singh v. State of U.P., 2004 SCC OnLine All 1656 : (2004) 103 FLR 1147 : (2005) 6 SLR 378: 2004 All LJ 4242: 2005 Lab IC 505, that executive instructions cannot override the statutory provisions. It was observed:

"4. It is a settled legal proposition that executive instructions cannot override the statutory provisions. Vide B.N. Nargajan v. State of Mysore[AIR 1966 SC 1942 [LQ/SC/1966/68] .], Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910 [LQ/SC/1967/223] .], Union of India v. Majji Jangammyya[(1977) 1 SCC 606 [LQ/SC/1976/429] : AIR 1977 SC 757 [LQ/SC/1976/429] .], B.N. Nagarajan v. State of Karnataka[(1979) 4 SCC 507 [LQ/SC/1979/263] : AIR 1979 SC 1676 [LQ/SC/1979/263] : 1980 (16) SCLJ 344.], P.D. Agrawal v. State of U.P. [(1987) 3 SCC 622 [LQ/SC/1987/475] .] Beopar Sahayak (P) Ltd. v. Vishwa Nath[(1987) 3 SCC 693 [LQ/SC/1987/489] : AIR 1987 SC 2111 [LQ/SC/1987/489] .], State of Maharashtra v. Jagannath Achyut Karendikar [1989 (58) FLR 635.] [LQ/SC/1989/141] , Paluru Ramkrishananiah v. Union of India[(1989) 2 SCC 541 [LQ/SC/1989/175] : AIR 1990 SC 166 [LQ/SC/1989/175] .] Comptroller and Auditor General of India v. Mohan Lal Mehrotra[1991 (63) FLR 699.] [LQ/SC/1991/549] State of Madhya Pradesh v. G.S. Dall and Flour Mills[1992 Supp (1) SCC 150 : AIR 1991 SC 772 [LQ/SC/1990/570] .], Naga People's Movement of Human Rights v. Union of India[(1998) 2 SCC 109 [LQ/SC/1997/1565] : AIR 1998 SC 431 [LQ/SC/1997/1565] .],C. Rangaswamaeah v. Karnataka Lokayukta[(1998) 2 SCC 502 [LQ/SC/1998/54] : AIR 1998 SC 96.].

5. Executive instructions cannot amend or supersede the statutory Rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. Vide State of U.P. v. Babu Ram Upadhyaya[AIR 1961 SC 751 [LQ/SC/1960/292] .], and State of Tamil Nadu v. Hind Stone etc.[(1981) 2 SCC 205 [LQ/SC/1981/61] : AIR 1981 SC 711 [LQ/SC/1981/61] .].

6. In Union of India v. Sri Somasundaram Vishwanath[(1989) 1 SCC 175 [LQ/SC/1988/493] : AIR 1988 SC 2255 [LQ/SC/1988/493] .], the Hon'ble Apex Court observed that if there is a conflict between the executive instruction and the rules framed under the proviso to Article 309 of the Constitution, the rules will prevail. Similarly, if there is a conflict between the rules made under the proviso to Article 309 of the Constitution and the law, the law will prevail.

7. A similar view has been reiterated in Union of India v. Rakesh Kumar[2001 (89) FLR 599.] [LQ/SC/2001/901] .Swapan Kumar Pal v. Samitabhar Chakraborty[(2001) 5 SCC 581 [LQ/SC/2001/1272] : AIR 2001 SC 2353 [LQ/SC/2001/1272] .], Khet Singh v. Union of India[(2002) 4 SCC 380 [LQ/SC/2002/397] .], Laxmi Narayan R. Bhattad v. State of Maharashtra[(2003) 5 SCC 413 [LQ/SC/2003/460] .], and Delhi Development Authority v. Joginder S. Monga [(2004) 2 SCC 297 [LQ/SC/2003/1274] .], observing that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.

8. In Ram Ganesh Tripathi v. State of U.P.[1997 (75) FLR 554.] [LQ/SC/1996/2217] , the Hon'ble Supreme Court considered a similar controversy and held that any executive instruction/order which runs counter to or is inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force of law. The Hon'ble Supreme Court observed as under:—

“They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents and similarly situated ad hoc appointees.”

9. Thus, in view of the above, it is evident that executive instructions cannot be issued in contravention of the rules framed under the proviso to Article 309 of the Constitution and statutory rules cannot be set at nought by the executive fiat.

35. It was laid down by the Hon’ble Supreme Court in DDA v. Joginder S. Monga, (2004) 2 SCC 297, [LQ/SC/2003/1274] that in case of conflict between a statute and an executive instruction, the statute will prevail over the executive instructions: It was observed:

"30. It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a conflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter. The lessor under the deed of lease is to fix the market value. It could do it areawise or plotwise. Once it does it areawise which being final and binding, it cannot resile therefrom at a later stage and take a stand that in a particular case it will fix the market value on the basis of the price disclosed in the agreement of sale."

36. Hence, no advantage can be derived from the executive instructions issued by the Central Drugs Standard Control Organization and the learned Courts below had wrongly held that prosecution could not have been launched without prosecution sanction and time spent in obtaining sanction has to be excluded.

37. Once it is held that the prosecution sanction is not required, the plea taken by the petitioner that the sanction was granted by the same person who had conducted the search will not arise for adjudication.

38. No other point was urged.

39. Consequently, the present petition is allowed and the complaint pending before the learned Judicial Magistrate First Class, Court No.1, Dharamshala, Kangra, District Kangra, H.P. is quashed being barred by limitation. Pending miscellaneous applications also stand disposed of.

40. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.