IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF SEPTEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.7162 of 2009 Between: Osiris I.T. Projects .. Petitioner AND .. Respondents HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.7190 of 2009 ORDER: Heard Sri P. Kalyan Ram, learned counsel representing Sri Ch. Dhanamjaya, learned counsel for the petitioner and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for both the respondents. The petitioner is arrayed as fourth accused in C.C.No.323 of 2006 on the file of the Court of II Additional Judicial Magistrate of First Class, Bhimavaram, for the alleged violations of the provisions of the Drugs and Cosmetics Act, 1940 (for short “the Act”). The contents of the complaint by the Drugs Inspector, Bhimavaram, show that the fourth accused was stated to be the person who sold the subject drug to the fifth accused under a receipt and that the fourth accused himself claimed to have purchased the said drug from the second accused under purchase invoices, with the second accused being represented by the first accused. The complaint clearly alleged A-1 to A-3 to be the manufacturers of the drug in question, which was stated to be not of a standard quality and the petitioner/fourth accused is sought to be implicated only for selling the said drug, which is not of a standard quality. Sri P. Kalyan Ram, learned counsel for the petitioner, relied o n Medicamen Biotech Limited and another v. Rubina Bose, Drug Inspector[1] for the proposition that where the accused is deprived of his valuable right under Section 25 of the Drugs and Cosmetics Act, 1940 due to the delay till after the expiry of the shelf life of the sample drug, the criminal proceedings are liable to be quashed. Learned counsel also relied on the decision of this Court in Criminal Petition No.2997 of 2001, dated 27-08-2001, wherein it was held that sellers of the drug without any knowledge of the sub-standard quality of the drug cannot be attributed with any criminal liability. The learned counsel further referred to another decision of this Court in Criminal Petition No.109 of 2008, decided on 11-02-2008, wherein the learned Judge referred to sub- section 3 of Section 30 of the Insecticides Act, 1968, which gives protection to the person, who is neither an importer nor a manufacturer of an insecticide from any liability against contravention of the provisions of that Act unless he has knowledge about the contents of the insecticide being substandard or misbranded or unless he tampered with the insecticide in question, while he is in possession. The principle of Section 30 (3) of the Insecticides Act, 1968 is contended to be the same as under Section 19 (3) of the Drugs and Cosmetics Act. The factual matrix of the present case indisputably shows that Section 19 (3) of the Act gives a blanket protection to the retailer in this regard like the protection given under Section 30 (3) of the Insecticides Act, 1968, apart from the delay in filing the complaint till after the expiry of the period of shelf life of the drug in question probably depriving the petitioner of the right to have the sample of the drug reanalyzed. The very protection under Section 19 (3) of the Act should come to the aid of the petitioner when even the charge sheet does not allege that the petitioner had in any way meddled with the subject drug after receiving from the accused 1 to 3 and before selling it to the fifth accused. Under the circumstances, the criminal petition has to succeed. Therefore, the further proceedings in C.C.No.323 of 2006 on the file of the Court of II Additional Judicial Magistrate of First Class, Bhimavaram, against the petitioner are quashed and the Criminal Petition is allowed accordingly. _____________________ G. BHAVANI PRASAD, J Date: 09-09-2009 Ksn HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.7162 of 2009 ORDER: Heard Sri P.S. Rajasekhar, learned counsel for the petitioner and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the third respondent. No notice is being ordered to respondents 1 and 2 as the matter is being disposed of at the stage of admission. The XI Additional Chief Metropolitan Magistrate, Secunderabad, dismissed the application for condonation of delay of 291 days in filing the complaint by his order dated 08-06-2008 opining that in the absence of proof of the injury suffered by the complainant, his admission in the hospital and his being bed ridden for three months, the delay of 291 days cannot be considered as explained. Holding that the explanation given by the complainant is not satisfactory, the learned Magistrate dismissed the petition. In revision in R.P.No.101 of 2009, the learned Metropolitan Sessions Judge, Hyderabad, by the judgment dated 07-08-2009 noted that prior to filing of the complaint, there was exchange of notices on 19-12-2007 and 11-01-2008, after which the first accused filed CCSR.No.2050 of 2008 against the complainant, which ended in failure before the trial court and the revisional court by 05-05-2008. The alleged assurances by accused 1 and 2 therein to the complainant after the statutory notice on 20-12-2007 promising to repay the loan as early as possible and requesting not to file any complaint probably run counter to the specific reply notice given by the accused on 11-01-2008 and also the pursuance of CCSR.No.2050 of 2008 by the first accused. The learned Metropolitan Sessions Judge also observed that both the complainant and A-1 being companies and not individuals, the absence of any details as to who entered into the said understanding on behalf of the petitioner’s company is also material and makes the claim improbable. The learned Metropolitan Sessions Judge further noticed that the trip by the complainant to United Arab Emirates (UAE) for four days and his alleged disablement due to spraining of ankle on 10-5-2008 and 12-8-2008 also cannot explain the delay of 291 days in filing the complaint only on 19-11-2008. Consequently, the learned Metropolitan Sessions Judge did not find any valid reason to condone the delay. The petitioner approaches this court with this Criminal Petition on the ground that the learned Metropolitan Sessions Judge did not go into the documentary evidence filed in support of the application for condonation of delay and desired that the original medical certificate filed by the petitioner in support of the petition be accepted as disclosing sufficient cause for condonation of delay. A close perusal of the material on record shows no strong reason to interfere with the concurrent findings of fact by the two courts below and even if the complainant has been advised rest for two months on 12-08-2008 as per the medical certificate produced by the complainant due to spraining of left ankle, still there is no explanation at all for not filing the complaint since 12- 10-2008 to 19-11-2008. The period of limitation prescribed by the statute for filing a complaint has undoubtedly a legislative purpose and valuable rights accrued to the accused due to bar of limitation cannot be lightly interfered with without any ostensible cause. When even if all the allegations of the petitioner are accepted as true, there still remains no explanation for the delay in filing the complaint after the expiry of the period of rest advised for two months since the medical certificate on 12-08-2008, the trial Court and the Court of Revision cannot be considered to have gone wrong in refusing to accept the request for condonation of delay of 291 days. The affidavit of the petitioner filed in support of Crl.M.P.No.9347 of 2008 in CCSR No.9818 of 2008 before the trial Court does not even remotely show any further grounds than those considered by the trial court and the Court of Revision to justify any deviation from any such conclusion, and therefore, this criminal petition invoking the inherent jurisdiction of this court, which is available only in the rarest of rare cases, cannot succeed. Accordingly, the Criminal Petition is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 09-09-2009 Ksn [1] (2008) 3 Supreme Court Cases (Crl.) 20