N 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 SLP 91875 C L Sahu for the petitioner In SLP 91975 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 section 292 of the  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 Ms Ram Pershad Gondamal which is the petitioner in Special Leave Petition No 919 of 1975
The firm of Ms 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 Ms 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 Ms 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 Ms Ram Pershad Gondamal in the Court of the Judicial Magistrate 1st Class Delhi for an offence under section 7 read with section 15 of the 
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 Ms 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 section 13 sub section
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 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 Ms Ram Pershad Gondamal were adulterated but since Phool Gulab of these two samples was purchased by the firm of Ms Ram Pershad Gondamal from Ms 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 Ms Ram Pershad Gondamal were entitled to the benefit of section 19 sub section
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 section 417 sub section
3 of the Code of Criminal Procedure 1898 for special leave to appeal from the order of acquittal
Sub section
4 of section 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 section 5 of the 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 section
4 of section 417 and taking the view that this was a fit case which deserved the exercise of discretion under sub section
3 of section 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 Ms Venkateshwara  Co from whom Phool Gulab was purchased by the firm of Ms Ram Pershad Gondamal was a licensed manufacturer nor was there any written warranty in the prescribed form obtained by the firm of Ms Ram Pershad Gondamal from Ms Venkateshwara  Co and hence the defence under section 19 sub section
2 was not available to Mangu Ram and the firm of Ms 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 Ms Ram Pershad Gondamal and convicted them of the offence under section 7 read with section 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 months rigorous imprisonment and to pay a fine of Rs 1000 or in default to suffer rigorous imprisonment for a further period of three months while the firm of Ms Ram Pershad Gondamal was sentenced to pay a fine of Rs 1000 
Mangu Ram and the firm of Ms 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 Ms 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 section
4 of section 417 for the making of an application for special leave under sub section
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 section 5 of the 
It was urged that having regard to the clear and specific language of sub section
4 of section 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 section 5 of the 
This contention was sought to be supported before by reference to a decision of this Court in Kaushalya Rani s vs Gopal Singh1 Now prima facie it might seem at first blush that the decision in Kaushalya Rani s case1 is directly applicable in the present case and clinches the decision of the issue in favour of Mangu Ram and the firm of Ms 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 case1 was apparently the same as in the present case namely whether the time limit of sixty days prescribed in sub section
4 of section 417 for making an application for special leave under sub section
3 of that 
section could be extended by invoking section 5 of the Indian Limitation Act 1908
This Court held that sub section
4 of section 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 section
4 of section 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 section 5 of the Limitation Act is wholly out of the way in view of section 292 b of the Limitation Act
 The applicability of section 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 section
4 of section 417 by reason of section 292b 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 this Act that is sections other than sections 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 section 5 of that Act for the purpose of extending the period of limitation of sixty days prescribed in sub section
4 of section 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 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 
There is an important departure made by the in so far as the provision contained in section 29 sub section
2 is concerned Whereas under the Indian
Limitation Act 1908 section 29 sub section
2cl
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 sections 4 9 to 18 and 22 shall not apply and therefore the applicability of section 5 was in clear and specific terms excluded section 29 sub section
2 of the 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 sections 4 to 24 which would include section 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 section
2 cl
b of the Indian Limitation Act
1908 specifically excluded the applicability of section 5 while section 29 sub section
2 of the in clear and unambiguous terms provides for the applicability of section 5 and the ratio of the decision in Kaushalya Rani s case1 can therefore have no application in cases governed by the  since that decision proceeded on the hypothesis that the applicability of section 5 was excluded by reason of section 292 b of the Indian Limitation Act 1908
Since under the section 5 is specifically made applicable by section 29
sub section
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 section 5 that it would stand displaced
There as pointed out by this Court in Kaushalya Rani s case1 the time limit of sixty days laid down in sub section
4 of section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of section 5
It is true that the language of sub section 4 of section 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 section 5 in order 265 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 section 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  section 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 section
4 of section 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 section
4 of section 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 Ms Ram Pershad Gondamal to appeal against the order of the High Court and we accordingly dismiss the petitions for special leave filed by them
PBR Special Leave Petitions dismissed


Summary:
The respondent sought special leave to appeal to the High Court under section 4173 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 section 5 of the 
In their application for special leave to appeal to this Court the petitioners contended that the time limit of 60 days prescribed under section 4174 was mandatory and as such the High Court had no jurisdiction to extend the time limit by resort to section 5 of the 
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  section 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 section
4 of section 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 section 5 is specifically made applicable by section 292 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 section 5 that it stands displaced
Section 292 b of the Limitation Act 1908 specifically excluded the applicability of section 5 while section 292 of the 1963 Act in a clear and unambiguous terms provides for applicability of section 5
264F E Kaushalya Rani vs Gopal Singh   explained