Disposed

Smt.Julesa and Ors. v. Nasir and Anr.

Karnataka HC27 Jun 2023MFA/200344/2019

Case brief

AI extract

What is this about?

The High Court held that a criminal revision petition is not maintainable when an appeal lies under Section 372 Cr.P.C. The court directed the registry to convert the revision petition into a criminal appeal under Section 401(5) Cr.P.C. and directed the petitioner to file an amended appeal memo.

What did the court decide?

The Criminal Revision Petition disposed of; Registry directed to convert it into a Criminal Appeal under Section 401(5) Cr.P.C.; Petitioner directed to file amended appeal memo within four weeks.

Smt.Julesa and Ors. Vs Nasir and Anr. — Civil Procedure and Limitation | Karnataka HC (2023)

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CRL.RP NO. 200007/2019

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 21^ST DAY OF APRIL, 2023 BEFORE

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THE HON'BLE MR JUSTICE S RACHAIAH

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CRL.RP NO 200007 OF 2019

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BETWEEN

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M/S ALPINE LABORATORIES

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(PROPRIETOR M/S LOYAL PHARMACEUTICALS

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PVT. LIMITED, C-18 MIDC, AKKALKOT ROAD, SHOLAPUR-413006, REPRESENTED BY MANAGING DIRECTORS.

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A.A.SONANDKAR,

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MANAGING DIRECTOR M/S ALPINE LABORATORIES, PROPRIETOR OF M/S LOYAL PHARMACEUTICALS PRIVATE LIMITED C-MIDC, AKKALAKOT ROAD, SHOLAPUR-413006.

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...PETITIONERS

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(BY SRI ASHOK MULAGE, ADVOCATE)

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AND

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THE STATE

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THROUGH DRUGS INSPECTOR, KALABURAGI, THROUGH ADDL. SPP HIGH COURT OF KARNATAKA, KALABURAGI BENCH-585107.

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….RESPONDENTS (BY SRI SHARANABASAPPA M. PATIL, HCGP) THIS CRL.RP IS FILED U/SEC.397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE III ADDL. DIST. AND SESSIONS JUDGE AT KALABURAGI IN CRIMINAL APPEAL NO.6/2015 DATED 11.12.2018 AND CONFIRM THE JUDGMENT AND ORDER PASSED BY THE PRL. CIVIL JUDGE AND JMFC AT KALABURAGI IN C.C.NO.709/2006 DATED 09.10.2014 AND ACQUIT THE ACCUSED/REVISION PETITIONERS FOR THE OFFENCE PUNISHABLE U/PARA 24 OF DRUGS PRICE CONTROL ORDER 1995 R/W SEC.7(1)(A)(II) OF ESSENTIAL COMMODITIES ACT.

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CRL.RP NO. 200007/2019

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED ON 07.03.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition is filed by the petitioners being aggrieved by the judgment of conviction and order of sentence dated 09.10.2014 in C.C No.709/2006 passed by the Principal Civil Judge and JMFC, Kalaburgi and its confirmation order dated 11.12.2018 in Crl.A No.6/2015 on the file of III Additional Sessions and District Judge, Kalaburagi to set aside the said orders.

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The Drug Inspector, Kalaburagi filed a complaint under Section 200 of Code of Criminal Procedure (for short ‘Cr.P.C’) alleging that accused No.1 is a company under the name and style ‘M/s.Alpine Laboratories’. Accused No.2 is a Managing Director and the accused No.3 is a Director of accused No.1 firm who are the manufacturers of paraprofen tablets and some other drugs. It is stated in the complaint that, the petitioners were selling the said tablets in contravention of the National Pharmaceutical Pricing Authority (for short ‘NPPA’). It is further alleged that, as per the guideless of NPPA the parafrofen tablets supposed to be sold at the rate of Rs.6.40 ps for 10 tablets, however, the label of the above stated tablets

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CRL.RP NO. 200007/2019

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discloses that Rs.11.00 for 10 tablets. Having noticed the said contravention, case came to be lodged by the complainant before the jurisdictional Magistrate.

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After the case having been registered, the Trial Court recorded the evidence of PW.1 and PW.2 and also marked Exs.P1 to P28. On appreciation of oral and documentary evidence on record, the Trial Court acquitted the accused. However, on appeal being made numbered as Crl.A No.6/2015, the Appellate Court by its order dated 11.12.2018 convicted the accused which reads thus:

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“The criminal appeal filed by the appellant is hereby allowed.

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The Judgment of acquittal dated 09.10.2014 passed in CC No.709/2006 by the learned Prl. Civil Judge and JMFC, Kalaburagi is hereby set aside.

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The accused No.1 and 2 convicted for the offences punishable under para No.24 of Drugs Price Control Order 1995 R/w Section 7[1][a][ii] of Essential Commodities Act, 1995.

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The accused No.1 and 2 are sentenced to pay fine of Rs.1,00,000/- for the offence punishable under para No.24 of Drugs Price Control Order 1995 R/w Section 7[1] (a) [ii] of Essential Commodities Act, 1995. In default to pay fine of Rs.1,00,000/-, the accused No.2 who is Managing Director of the accused No.1-company shall undergo simple imprisonment for a term of three months.

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CRL.RP NO. 200007/2019

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The accused No.2 is convicted and sentenced to simple imprisonment for a term three months for the punishable under paragraph 24 of Drugs Control Order 1995 read with Section 7[1] [a] [ii] of Essential Commodities Act, 1995.”

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Heard Sri.Ashok Mulage, learned counsel for the

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petitioners and Sri.Sharanabasappa M.Patil, learned High Court Government Pleader for respondent-State.

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Sri.Ashok Mulage, learned counsel for the petitioners submits that, the order passed by the Appellate Court is having no jurisdiction. The petitioners ought to have filed an appeal before this Court in terms of Section 378(4) of Cr.P.C. It is further submitted that, the Appellate Court ignored in considering the facts of the case accurately. The learned counsel for the petitioners submits that, the complainant has not seized the strip of tablets to show that the said tablets was being sold in retail medical store in contravention of the notification issued by the NPPA. Making such submission, the learned counsel for the petitioners prays to dismiss the judgment and order of sentence passed by the Appellate Court.

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Per contra, the learned High Court Government

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Pleader for the respondent-State submits that, the appeal before the Sessions Court / Appellate Court is maintainable in

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CRL.RP NO. 200007/2019

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terms of Section 372 of Cr.P.C. The complainant being the victim, in terms of Section 2(wa) of Cr.P.C the appeal lies before the Sessions Court.

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It is further submitted that, the accused were selling the tablets in contravention of the notification issued under NPPA. Therefore, there is no error committed by the Appellate Court. Making such submission, the Appellate Court has not committed any error in convicting the petitioners. Therefore, the petition deserves to be dismissed.

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Having heard the learned counsel for the parties and also perused the documents and order of the Appellate Court, the sole point which arise for my consideration is:

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Whether the Criminal Revision Petition is maintainable against the conviction of the accused in Appellate Court?

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In order to answer this above point, it is necessary to go through the facts of the case. The complainant filed a complaint before the Magistrate against the accused for having violated the notification issued under the NPPA. The Trial Court after appreciating the oral and documentary evidence acquitted the accused. Being aggrieved by the order of acquittal, the

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CRL.RP NO. 200007/2019

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complainant preferred an appeal before the Appellate Court, the Appellate Court convicted the accused. Against the said conviction, the petitioners herein ought to have filed appeal before this Court, however wrongly invoked the jurisdiction and sought the relief.

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Now it is relevant to refer the provision under Section 401(5) of Cr.P.C which reads thus:

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“401.(5). Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”

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On careful reading of the above provision, the

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criminal revision petition is not maintainable. However, the petitioners have to file appeal. Therefore, I proceed to pass the following:

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ORDER

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i) The criminal revision petition is disposed of for the statistical purpose.

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CRL.RP NO. 200007/2019

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ii) The Registry is directed to convert the criminal revision petition into criminal appeal in terms of Section 401(5) of Cr.P.C. iii) The petitioner is directed to file neatly typed amended appeal memo with suitable prayer within a period of four weeks from today. iv) After filing the said appeal memo, the Registry may place the appeal before the Bench in accordance with law.

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Sd/JUDGE

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Smt.Julesa and Ors. v. Nasir and Anr.

Case brief

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Smt.Julesa and Ors. v. Nasir and Anr.

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