IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1402 of 2005 Between: The Drugs Inspector, Zone-II, Vijayawada, Represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Petitioner AND M/s. Toshika International (P) Limited, 290, Industrial Area, Phase-II, Chandigarh and 2 others .. Respondents JUDGMENT: The dismissal of the complaint under Section 256 of the Code of Criminal Procedure by the III Metropolitan Magistrate’s Court, Vijayawada, by the order dated 18-01-2005 in C.C.No.538 of 1997 made the complainant approach this Court through this appeal through the learned Public Prosecutor. The appellant filed the complaint against three accused in respect of an offence said to have been detected on 15-07-1995 in respect of the subject drug, which was found to be not of standard quality. The complaint describes the various steps taken by the complainant in compliance with the statutory procedural formalities before prosecuting the accused for an offence punishable under Section 27 (c) of the Drugs and Cosmetics Act, 1940. The complaint was filed into Court on 23-06-1997 and was taken on file on 08-10-1997 by the trial Court on which date the summons were directed to be issued to the accused. The accused entered appearance initially through a counsel on 11-05-1998, but due to their subsequent absence, on 18-09-1998, Non-bailable warrants were issued against them. From 1998, the case underwent many adjournments with the non-bailable warrant against the third accused being recalled in between on his application and the complainant was intermittently present and absent before the Court in the meanwhile. The complainant did not appear to have posted the Court with any information about any efforts being made for execution of Non-bailable warrants pending against the accused for more than six years. Ultimately, on 18-01-2005 the complainant was again absent without any representation for him and the trial Court found that the case was not being properly pursued by the complainant. The Assistant Public Prosecutor also submitted to the Court that the whereabouts of the accused could not be traced. In the absence of any submission by the complainant about the non- bailable warrants, the trial Court deduced lack of interest for the complainant in the matter and on such facts and circumstances, it dismissed the complaint by taking recourse to Section 256 of the Code of Criminal Procedure. The grievance ventilated in this appeal is about the trial Court not appreciating the inability of the appellant to be present before the Court only due to his official duties. The dismissal was described as mechanical and is requested to be reversed. Heard Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor for the appellant and none appeared for the respondents-accused though notices of the appeal were served on them. Section 256 of the Code of Criminal Procedure enables and empowers the Court to acquit the accused on the non-appearance or death of the complainant on the appointed date of hearing except when the Court considers the personal attendance of the complainant to be not necessary. Such enabling power was conferred on the trial Court only to meet situations like the present one wherein the pendency of the Non-bailable warrants for more than six years without ever informing the court about any efforts made for the execution of warrants and the further aggravating factor of indifference and absence of the complainant left the court with no other option. When it was submitted to the Court on behalf of the prosecution that the accused could not be traced even after more than six years to proceed with the summary trial, the trial Court cannot be considered unjustified in dismissing the complaint. The jurisdiction of the trial Court is, thus, not shown to have been exercised improperly or excessively and the impugned order cannot, hence, be interfered with. In the result, the Criminal Appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 03-12-2009 Ksn