This order dismisses a criminal petition filed to quash an earlier order of surprise inquiring into the grounds of not discharging the accused, and dismissing a prayer to cancel non-bailable warrants and direct trial to proceed.
Criminal Petition dismissed; directions to cancel non-bailable warrants and proceed with trial granted.
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THE HON'BLE SRI JUSTICE R.KANTHA RAO
CRIMINAL PETITION NO.1005 OF 2013
ORDER:
1. Heard Sri S.Ganesh, learned counsel appearing for the petitioners and the learned Additional Public Prosecutor representing the State.
2. The petitioners-A1 to A4 filed this Criminal Petition under Section 482 Cr.P.C. seeking to quash the order dated 03.12.2012 passed in Crl.R.P.No.20 of 2012 by the I Additional District and Sessions Judge, Mahabubnagar, confirming the order dated 23.12.2011 passed in Crl.M.P.No.2041 of 2011 in C.C.No.174 of 2004 by the Judicial Magistrate of First Class, Mahabubnagar.
3. The Drugs Inspector, Mahabubnagar, filed complaint in C.C.No.174 of 2004 against the petitioners-accused Nos.1 to 4, which is now pending trial before the Judicial Magistrate of First Class, Mahabubnagar. While the said case was pending, the petitioners filed Crl.P.No.5299 of 2044 under Section 482 Cr.P.C. before this Court to quash the complaint in C.C.No.174 of 2004 on the ground that the original test report and the portion of the sealed sample were not provided to A-4 company and that A-4 company challenged the report of the analyst and requested for further test at Central Drugs Laboratory, Calcutta and the complaint was filed just before the expiry of self-life period of the drug and therefore, the petitioners are deprived of a valuable statutory right to get the seized drug retested by the Central Drugs Laboratory.
4. Learned Single Judge of this Court, by order dated 29.03.2006, dismissed the said Crl.P.No.5299 of 2004 recording the following findings.
“As seen from the correspondence between the magistrate and the central drugs laboratory it is clear that on 04.10.2002 the magistrate sent one parcel packet mentioning dispatch number over the packet as 1898 for retesting, but in the enclosed letter packet the dispatch number is noted as 1893. The same was pointed out by the central drugs
laboratory in its report. But, only one sample packet has been sent and that sample packet was analyzed and found that it is not of a standard quality. Therefore, it is obvious that a mistake has been crept in the enclosed letter of the magistrate and the dispatch number mentioned on the sample packet sent to the central drugs laboratory was the sample analyzed by the central drugs laboratory. Therefore, I find no force in the contention of the learned counsel for the petitioners in this regard.
So far as the filing of the complaint is concerned, admittedly it was filed even before the self-life period of the drug is expired. Further, in the instant case, as the other sample was already sent to the central drugs laboratory, the question of causing prejudice on account of delayed filing of the complaint does not arise. It is also at the request of A-4 the sample was also sent to the central drugs laboratory and only after receipt of the report form the central drugs laboratory the complaint was filed. Therefore, I find no substance in the contention raised on behalf of the accused in this regard.”
5. Thereafter, the petitioners moved Crl.M.P.No.2145 of 2006 in Crl.P.No.5299 of 2004 before the learned Single Judge to make an observation that the above findings recorded by the learned Single Judge shall be limited only to that order and those observations do not in any way prevent the petitioners from taking any defence available for them in C.C.No.174 of 2004. Learned Single Judge acceded to the submission made by the petitioners and clarified that the findings recorded in the order dated 29.03.2006 in Crl.P.No.5299 of 2004 are limited to that order only and those observations do not in any way prevent the petitioners from taking any defence available for them before the trial Court.
6. It seems, thereafter the petitioners filed Crl.M.P.No.380 of 2008 in C.C.No.174 of 2004 before the Judicial Magistrate of First Class, Mahabubnagar, seeking to summon the sample deposited with L.W.3M/s.Meghana Medical and Surgical Agencies, Mahabubnagar and L.W.4-K.Sridhar, Managing Partner of M/s.Sri Krishna Kamaleshi Agencies, Srikakulam, for being sent for reanalysis by Central Drug Laboratory. The learned Magistrate dismissed the said petition.
Feeling aggrieved, the petitioners filed Crl.R.C.No.597 of 2008. The Learned Single Judge, while allowing the revision case by his order dated 04.06.2009, made the following observations.
“The report of the Central Drug Laboratory contains opinion that the sample is not of standard quality, but however the said report also shows that the sample, which was analysed, was bearing No.1898 on the parcel packet whereas the number mentioned in Form – I was 1893. In order to get the discrepancy clarified the petitioner-A-4 and other accused sought for analysis of the sample that was deposited with L.W.3 and L.W.4 also by mentioning the correct numbers. By such exercise, no prejudice would be caused to the prosecution and on the other hand, the doubt created on account of the discrepancy in the numbers mentioned on the parcel pocket and Form – I as seen from the report of the Central Drug Laboratory would get clarified. It cannot therefore be said that the petition is filed by the accused only with an intention to drag on the proceedings. The impugned order does not refer to the above aspect at all.”
7. Thereafter, the petitioners-Accused Nos.1 to 4 filed Crl.M.P.Nos.2041 and 2042 of 2011 before the Judicial Magistrate of First Class, Mahabubnagar, to discharge them under Section 245 Cr.P.C. The learned Magistrate summoned L.W.3 and L.W.4 to deposit the samples kept with them, but they appeared before this Court and L.W.3 reported that he has handed over his shop to third party and the sample is also destroyed and L.W.4 reported that he closed his shop and there was no possibility to trace out the sample for production before this Court. On that, by his common order dated 23.12.2011, the learned Magistrate dismissed Crl.M.P.Nos.2041 and 2042 of 2011 holding that non-production of samples by L.W.3 and L.W.4 was on account of the fact that they were won over by the accused. The learned Magistrate specifically mentioned in his order that by order dated 29.03.2006 in Crl.P.No.5299 of 2004, this Court categorically discussed all these aspects and dismissed the same and therefore, the petitions filed under Section 245 Cr.P.C. seeking discharge of the petitioners are not maintainable.
8. Therefore, the point now requires consideration is whether the order dated 23.12.2011 passed in Crl.M.P.Nos.2041 and 2042 of 2011 in C.C.No.174 of 2004 by the Judicial Magistrate of First Class, Mahabubnagar, is liable to be quashed.
9. Learned counsel appearing for the petitioners relied on the decision reported in State of Haryana v. Unique Farmaid (P) Ltd .[1] ,
wherein the Supreme Court held as under.
“It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticide Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus, prejudicing them in their defence.”
He further relied on the decision reported in Medicamen Biotech
Limited v. Drug Inspecto r[2] , wherein the Supreme Court held as under.
“There is no explanation as to why the complaint itself had been filed about a month before expire of shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after complaint had been filed. Likewise, requests for retesting of drug had been made by the appellant in August/September 2001 and there is absolutely no reason as to why complaint could not have been filed earlier and fourth sample sent for retesting
well within time. Facts of the case suggest that the appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must necessitate quashing of proceedings against them.”
10. I have gone through the above mentioned judgments. To decide the issue whether the order passed by the learned Magistrate declining to discharge the accused, this Court is not supposed to examine the correctness of the order dated 29.03.2006 passed by the learned Single Judge in Crl.P.No.5299 of 2004. The same contentions, which were raised before this Court and also before the learned Magistrate, were raised before the learned Single Judge in Crl.P.No.5299 of 2004. Learned Single Judge rejected all the contentions and dismissed the Criminal Petition. Thereafter, if the petitioners thought that the order passed by the learned Single Judge is not in accordance with law, they ought to have file a petition to review the same, but they filed Crl.M.P.No.2145 of 2006 to make an observation to clarify that the findings recorded by the learned Single Judge would not come in the way of the defence raised in the course of the trial before the learned Magistrate. In the said petition, the learned Single Judge clarified that the findings recorded by him will not in any way disentitle or deprive the petitioners to raise the defence pleas before the learned Magistrate and the findings recorded by the learned Single Judge were only limited to the order disposing Crl.P.No.5299 of 2004.
11. Therefore, the grounds, which are raised in the present Criminal Petition, were already raised before the learned Single Judge and ultimately, the learned Single Judge dismissed Crl.P.No.5299 of 2004 filed under Section 482 Cr.P.C. to quash the proceedings in C.C.No.174 of 2004 on the file of the Judicial Magistrate of First Class, Mahabubnagar. In the present Criminal Petition, indirectly, the petitioners raised the same issues. When once a Criminal Petition to quash the criminal proceedings is dismissed, the only course left open
to the petitioners is to face the trial and they shall not file another Criminal petition on the same or similar grounds. Such a course is impermissible in law. Therefore, the petitioners have to participate in the trial and can raise all the defence pleas, which are available to them, notwithstanding any observations made by this Court while disposing of Crl.P.No.5299 of 2004.
12. Learned counsel appearing for the petitioners would submit that on 18.03.2013, the learned Judicial Magistrate of First Class, Mahabubnagar, issued non-bailable warrants to some of the accused for their
non-appearance. He would further submit that as it became difficult for the petitioners to come all the way from Madhya Pradesh, they could not attend the Court at an appropriate time. In the circumstances, the learned Magistrate is directed to cancel the non-bailable warrants issued and proceed with the trial in accordance with law.
13. Accordingly, the Criminal Petition is dismissed. Miscellaneous petitions, if any, pending shall stand dismissed.
________________ (R.KANTHA RAO, J)
20th March 2013 RRB
[1] (1999) 8 SCC 190
[2] (2008) 7 SCC 196
2 issues framed by the court
Whether a subsequent Criminal Petition dismissed on grounds of injunctive nature and limitation can be filed again on the same or similar grounds to quash earlier proceedings.
Whether the directions in the instant petition to cancel non-bailable warrants and proceed with trial are maintainable given the dismissal of the main petition.
Colour shows how this judgement treated each authority
State of Haryana v. Unique Farmaid (P) LtdReferred¶19
(1999) 8 SCC 190 · Who else cites this
Medicamen Biotech Limited v. Drug InspectorReferred¶22
(2008) 7 SCC 196 · Who else cites this
2 provisions across 1 enactments
Accused Nos.1 to 4
State
R. Kantha Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
