1. This appeal is filed by the State of Kerala under Section 378 (1) and (3) of Cr.P.C against the acquittal of the accused for the offence under Section 18(c) and 27(d) of the Drugs and Cosmetics Act, 1940 (for short 'the Act').

2. In the complaint filed under Section 32 of the Act, it is alleged that the first accused is the proprietress and the licensee in respect of M/s.Athul Agencies, and the second accused is the competent person of the said establishment authorised to deal in drugs specified in Schedule 'C' & 'C1' except those requiring cold storage facilities and that when the complainant Drugs Inspector inspected the business premises on 02-04-2004, it was found that in violation of the conditions of the licence, the accused stored the drug Tetanus Toxide IP and thereby committed the offence as aforesaid.

3. When the matter came up for hearing, the learned counsel for the respondents/accused argued that the appeal is yet to be admitted for want of leave as contemplated under Sub clause 3 of 378 Cr.P.C and the appellant/State of Kerala has not filed any application seeking leave. The learned Public Prosecutor argued that even though no separate leave application is filed, the appellant has sought for leave under Section 378(3) Cr.P.C in the Memorandum of Appeal and therefore, considering the facts and circumstance of the case, a separate application for leave is not required.

4. The learned counsel for the respondents pointed out that the learned Public Prosecutor has not produced any Government Order or decision directing the Public Prosecutor to file an appeal and in the absence of the same, the appeal is liable to be dismissed.

5. In State of Kerala v. Saji @ Dada Saji and Others (2021(1) KHC 740), a Division Bench of this Court held that there should be a direction from the State Government to enable the Public Prosecutor to institute an appeal to the High Court as provided under Section 378(1)(b) Cr.P.C, especially in view of the rules of business of the Government of Kerala. Paragraphs 11 to 15 in the said judgment is extracted below for convenient reference.

                  “11. We also perused the rules framed by the Government to better perceive how the executive Government, the rule making authority, understood the provision for appeal. The Kerala Government Law Officers Appointment and Condition of Service and Conduct of Case Rules, 1978 refers to ‘Criminal Matters’ in Chapter VIII. Rule 69(1) provides that Government Law Officers in courts other than the High Court shall deal with the Collector of the District concerned in regard to criminal cases. The various sub-rules deal with judgments in every case and the interactions between the Government Law officers, the Collector, the District Superintendent of Police, the Advocate General and eventually the Government. Sub rule (6)  refers to cases of acquittal in murder cases; the forum for an appeal from which, is definitely the High Court. Sub- rule (3) and (6) of Rule 69 reads as here under and the concerned Government Law Officer, spoken of there, is obviously the one who conducted the trial. He has to transmit the records of the case to the Advocate General along with his opinion and with opinion of the District Superintendent of Police.

                  R.69(3) “In cases of acquittal, if the concerned Government Law Officer and the District Superintendent of Police concerned agree that an appeal should be filed, either of them may make a report to the Advocate General direct with connected records. A copy of the report shall also be sent to the District Collector concerned by the reporting officer. The Advocate General shall thereupon send his opinion to the Government in the Home Department and await their instructions in the matter. Whenever Government consider it necessary to file an appeal in any case instituted otherwise than on Police report, a Government order as contemplated under Section 377(1) of the Criminal Procedure Code, 1973 shall also be sent to the Advocate General along with the request to file an appeal so that any possible objections of incompetency may be avoided.”

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                  R.69(6) “In all cases of acquittal in murder cases, the concerned Government Law Officer shall sent to the Advocate General as expeditiously as possible complete records of the case with certified copies of judgments and depositions of witnesses, his opinion and the opinion of the District Superintendent of Police regarding the advisability or otherwise of filing appeals.”

                  12. The first limb of sub rule (3) extracted herein above, speaks of cases of acquittal when either the Government Law Officer or the District Superintendent of Police can make a report to the Advocate General if they are of the opinion that an appeal has to be filed. Advocate General has to then send his opinion to the Government in the Home Department and await their instructions in the matter. The second limb of sub-rule (3) speaks of the Advocate General sending his opinion to the Government in the Home Department on receipt of report from the Government Law Officer and the District Superintendent of Police, in cases instituted otherwise than on Police report. On perusal of the reports and opinion, if the Government considers it necessary to file an appeal then a request should be sent to the Advocate General, who shall entrust it to a Public Prosecutor, as contemplated under Section 377(1). Section 377(1) and 378(1) are identical insofar as the right conferred on the Government to file an appeal, which has to be enforced by taking a decision or forming an opinion as to the necessity to file an appeal; either against an inadequate sentence or an order of acquittal. Even under sub-rule (6) extracted herein above the very same procedure has to be followed with the complete records of the case being transmitted to the Advocate General. This is for the purpose of apprising the Government of the opinion of the Advocate General who has to await the direction of the Government to file an appeal as provided in Section 378(1). The Rules cannot deviate from the requirement of the provision in the Code and the absence of a specific rule requiring the Government to issue a direction to file an appeal in cases of acquittal, inter-alia in murder cases, is inconsequential especially considering the mandate in the Code.

                  13.     The Public Prosecutors had, from the records available with them, showed us the opinion of the Public Prosecutor who conducted the trial and also that of the Investigating Officer. Both of which were in favour of filing an appeal from the order of acquittal. The contention raised is that they have formed such opinion as Officers of the Government, in public interest and it would be akin to a direction issued by the Government. We are unable to accept the above contention especially looking at the Rules of Business of the Government of Kerala. We specifically refer to Part I Rules of Business and Rules 11 & 12, which are extracted here under:

                  “11. All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor.

                  12. Every order or instruments of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other Officer as may be specifically empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.”

                  Hence any order or instrument executed by or on behalf of the Government has to be in the name of the Governor and the same shall be signed by the Officers specifically referred to in Rule 12 or such other Officer specially empowered. The opinion of the Public Prosecutor or that of the Investigating Officer fails to satisfy the requirement of a direction by the Government as contemplated in Section 378(1) Cr.PC. We have also been shown an order where sanction was accorded by the Government to file an appeal in a Sessions Case; which is signed by an Under Secretary in the name of the Governor; which is the correct procedure .

                  14.     In this context we also notice the historical background of the provision to file an appeal from an order of acquittal, as narrated by the Division Bench of the Calcutta High Court in Prafulla Majhi in paragraphs 12 & 13:

                  “12. To appreciate the true implication of such a provision it would be necessary to bear in mind the historical background which was considered by the Supreme Court though in another context in the case U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 : (1955 Cri LJ 1410). In England there is no provision for an appeal by the Crown against an order of acquittal though the person convicted has such a right. The Code of 1861 followed the English procedure and prohibited any appeal from an order of acquittal. Departure was made from this position by the Code of 1872, S.272 whereof provided for an appeal by the Government from an order of acquittal. That provision was re-enacted in S.417 of the Code of 1882 and 1889. Those provisions incorporated a similar requirement as in the present provision under consideration, viz., that an appeal against an order of acquittal is to be presented through the Public Prosecutor. In our opinion, it was not a mere procedural requirement that such appeals are to be presented through the Public Prosecutor. An appeal against an acquittal which was not favoured at one time was provided for but clearly the intention of the legislature was that such a right should be exercised very cautiously and in imperative cases and not in the same manner as the appeals by the persons convicted. To ensure this, the law associated the Public Prosecutor with the presentation of the appeal as a statutory requirement. Section 377 and 378 of the Code when it provides that the State Government shall direct the Public Prosecutor to present the appeal, it does not mean that the Public Prosecutor would act as a mechanical agent to carry out the direction of the State Government. Had that been the intention of the legislature it would have left it to the choice of the State Government to determine the authority for presentation of such appeals. That, however, was not done and the authority determined by the legislature itself was the Public Prosecutor.

                  13. … Leave of the Court is an additional safeguard introduced by the new Code which was not there in parallel provisions of the old Code(in case of appeals by the State) and that too in case of appeals under S.378(1) and (2) and not in case of appeals under S.377. Associating the Public Prosecutor, therefore, is a safeguard which was introduced when conferring a right of appeal against an acquittal to ensure that such appeals are not lightly filed or are not filed only on the decision of the departmental authorities prosecuting the accused who had been acquitted.”

                  15. The definite and precise object in conferring the power, to decide whether an appeal has to be filed against an order of acquittal, on an authority not less than the State Government as held by the Judicial Commissioner in Marfat Ali is a protective mantle over the accused, who has been acquitted in a trial, with an appeal being filed only in instances of grave miscarriage of justice. The accused, who has been saved from incarceration by the order of acquittal cannot be forced to contest an appeal, which is filed at the mere whim expressed by any officer of the Government and not even on the studied opinion of the Public Prosecutor who conducted the trial or the conviction of the Investigating Officer. The decision has to come from the Government itself as mandated in Section 378(1) Cr.PC and it cannot be merely wished away as a procedural requirement or ignored as one directory in nature. On the above reasoning it has to be found that without a direction from the Government it will not be competent for the Public Prosecutor to institute an appeal under Section 378(1)(b) against an order of acquittal passed by the Sessions Court; which is the imperative statutory mandate.”

6. When the learned counsel for the respondents cited the above decision of the Division Bench of this Court, the learned Public Prosecutor filed Crl.M.A No.1 of 2025 to amend the cause title of the Memorandum of Appeal so as to change the appeal as one under Section 378 (4) Cr.P.C. But the learned counsel for the respondents pointed out that in the proposed amendment, the name of the appellant is shown as “State of Kerala represented by the Drugs Inspector, Assistant Drugs Controller Office, Kannur, through the Public Prosecutor” and that the State of Kerala cannot seek the special leave contemplated under Section 378 (4)Cr.P.C. It is pointed out that the right of the complainant to file an appeal is circumscribed by certain conditions precedent and in this connection cited the decision of the Hon'ble Supreme Court in Khem Singh (D) v. State of Uttaranchal (2025 SCC Online SC 1778), wherein it is held as follows in paragraphs 8 and 8.1 :

                  “8. Section 378 CrPC is a specific provision dealing with appeals. Sub-section (4) of Section 378 CrPC is pertinent. It states that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, computed from the date of the order of acquittal. Sub-Section (6) states that if, in any case, the application under sub-section (4) for grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2) of Section 378 CrPC.

                  8.1. A reading of section 378 CrPC would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, the first question is, whether the complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub- section (4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub-section (6), if the application under sub- section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia, under sub section (1) of Section 378 CrPC. However, if the complainant is also a victim, he could proceed under the proviso to Section 372 CrPC, in which case the rigour of sub-section (4) of Section 378 CrPC, which mandates obtaining special leave to appeal, would not arise at all, as he can prefer an appeal as a victim as a matter of right. Thus, if a victim who is a complainant proceeds under Section 378 CrPC, the necessity of seeking special leave to appeal would arise but if a victim, whether he is a complainant or not, files an appeal in terms of proviso to Section 372 CrPC, then the mandate of seeking special leave to appeal would not arise.”

7. It is well settled that the terms 'leave' and 'special leave' under Clause 3 and Clause 4 of Section 378 Cr.P.C are distinct and serve different purposes. In Subash Chand v. State (Delhi Administration) [(2013) 2 SCC 17), it was held thus in paragraphs 17 and 19 :

                  “17. At the outset, it must be noted that as per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court under Sections 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court. Section 378(1)(a) provides that, in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session. Sub-section (1)(b) of Section 378 provides that, in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. Sub-section (2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to sub-section (1) except that here the words “State Government” are substituted by the words “Central Government”.

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                  19. Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of “special leave” as against sub-section (3) relating to other appeals which speaks of “leave”. Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub- section (5) which refers to application filed for “special leave” by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant's application for “special leave” under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub- section (2). Thus, if “special leave” is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.

8. The parameters for entertaining the appeal by granting leave and special leave under Sub clause 3 and 4 of Section 378 Cr.P.C are different and the present appellant/State of Kerala is not entitled to file any application seeking special leave under Section 378 (4) Cr.P.C and therefore, I find that the amendment sought for cannot be allowed.

9. The learned Public Prosecutor finally argued for a suo moto revision by this Court. It is argued that the trial court instead of deciding the question as to whether the accused stored the drug in violation of the licence decided the question as to whether the drug Tetanus Toxide was stored in a cold place. As per Ext.P10 licence drugs requiring cold storage facilities are excluded. The learned counsel for the respondents pointed out that the term 'cold storage facilities' is not defined in the Drugs and Cosmetics Act or Rules and there is no classification on that basis and a perusal of Schedule 'P' of the Drugs and Cosmetics Act, 1940 would show that Tetanus Toxide is required to be stored in a cold place and the term 'cold place' means a place having a temperature not exceeding 8 degree centigrade and therefore, I find that the view taken by the trial court after analysing the evidence is a possible view and there is no circumstance warranting a suo moto revision by this Court by exercising the discretionary powers. Therefore, I find that the appeal and Crl.M.A No.1 of 2025 are liable to be dismissed.

                  In the result the appeal and Crl.M.A No.1 of 2025 are dismissed.