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 S.L.P. 918/75) C. L. Sahu, for the petitioner (In S.L.P. 919/75) 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 29(2) 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 M/s Ram Pershad Gondamal, which is the petitioner in Special Leave Petition No. 919 of 1975.
The firm of M/s 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 M/s 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 M/s 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 M/s 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 M/s 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 M/s Ram Pershad Gondamal were adulterated, but since Phool Gulab of these two samples was purchased by the firm of M/s Ram Pershad Gondamal from M/s 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 M/s 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 M/s Venkateshwara & Co. from whom Phool Gulab was purchased by the firm of M/s Ram Pershad Gondamal was a licensed manufacturer, nor was there any written warranty in the prescribed form obtained by the firm of M/s Ram Pershad Gondamal from M/s Venkateshwara & Co. and hence the defence under section 19 sub section
(2) was not available to Mangu Ram and the firm of M/s 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 M/s 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. 1,000/ or in default to suffer rigorous imprisonment for a further period of three months, while the firm of M/s Ram Pershad Gondamal was sentenced to pay a fine of Rs. 1000/ .
Mangu Ram and the firm of M/s 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 M/s 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 Singh(1), Now, prima facie, it might seem at first blush that the decision in Kaushalya Rani 's case(1) is directly applicable in the present case and clinches the decision of the issue in favour of Mangu Ram and the firm of M/s 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 case(1) 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 29(2) (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 29(2)(b) 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
(2),cl.
(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 case(1) 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 29(2) (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 case(1) 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 M/s Ram Pershad Gondamal to appeal against the order of the High Court and we accordingly dismiss the petitions for special leave filed by them.
P.B.R. Special Leave Petitions dismissed.


Summary:
The respondent sought special leave to appeal to the High Court under section 417(3) 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 417(4) 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 29(2) 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 29(2) (b) of the Limitation Act, 1908 specifically excluded the applicability of section 5 while section 29(2) of the 1963 Act in a clear and unambiguous terms provides for applicability of section 5.
[264F, E] Kaushalya Rani vs Gopal Singh ; , explained.