Delhi District Court
Manjit Singh & Anr vs State Of Punjab & Anr, 13 September, 2013 ... on 5 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Pradeep
FIR NO. : 645/1998
P.S. : Kotwali
R-NO. : 543522/2016
Date of commission of offence : 30-10-1998
Name of Informant/complainant : S.I. Satish Kumar
Name of accused : Prem Pal (proceedings abated on 17-05-2006)
Pradeep
Offence/s complained of : s. 78/79 TM Act, 63 CR Act, s. 486 IPC,27(b)
(ii), 27 (c), 27 (d) and s. 28 DAC
Cognisance under section/s : s.78/79 TM Act, 63 CR Act, s. 486IPC, 27(b)
(ii), 27 (c), 27 (d) and s. 28 DAC
Charges framed under section/s : s.78/79 TM Act, 63 CR Act, s. 486IPC, 27(b)
(ii), 27 (c), 27 (d) and s. 28 DAC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 01-08-2022
Date of pronouncement : 05-09-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. Anees Ahmed
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
R. No. 543522/2016 State v. Pradeep & Anr. Page 1 of 23
JUDGEMENT
1. The accused Pradeep is facing trial for offences under section 78/79 Trade Marks act 1958 [Hereinafter referred to as "TM Act"], s. 63 Copyright Act 1957 [Hereinafter referred to as "CR Act"], s. 486 Indian Penal Code 1860 [Hereinafter referred to as "IPC"], s. 27(b) (ii), 27 (c), 27 (d) and s. 28 of The Drugs and Cosmetics Act, 1940 [Hereinafter referred to as "DAC Act"].
2. Stated succinctly, the facts germane for the prosecution of the case is that on 30.10.1998, an information was received that spurious drugs are being sold by the accused persons Pradeep and Prem in the market to unsuspecting persons and this information was shared with the ACP/ IPR who directed the forming of a raiding team. Consequently the raiding team reached near Gauri Shankar Mandir, Chandni Chowk and one public person namely Abdul Khan joined raiding team and was sent as a decoy customer for the purpose of spurious drugs along-with one Subhash Sidhwani as a shadow witness. Further, at around 01:30 PM, the decoy customer and a shadow witness went to finalise the deal and upon receipt of the fixed signal, the complainant alongwith the raiding party members reached the spot and over powered both the accused persons. The name of the accused persons were later known as Prem Pal and Pradeep and upon their search, the signed notes of Rs. 500/- and Rs. 1000/- were recovered from them. Further, the shadow witness informed the member of the raiding party that the drugs sold R. No. 543522/2016 State v. Pradeep & Anr. Page 2 of 23 by the accused persons were not manufactured by his company and these drugs were declared to be not of standard quality by the testing authority, leading to the present prosecution.
3. On the written application of the informant, Kotwali P.S. registered in relation to the above incident as FIR no. 645/1998 on 30-10-1998 and, after investigation, submitted the charge sheet on 11-10-1998 against the aforementioned accused persons. Cognisance was taken on 11-10-1998 and provisions of section 207 Code of Criminal Procedure, 1973 [Hereinafter referred to as "Cr.P.C"]. were complied on 08-12-2001.
4. Proceedings qua accused Prem Pal were abated vide order dated 17-05-2006 on account of his death.
5. Charges u/s. 78/79 TM Act, 63 CR Act and s. 486 IPC were framed and read over to the accused, in Hindi, on 13-03-2002 to which they denied the incident and claimed to be tried. Further charges u/s 27(b) (ii), 27 (c), 27 (d) and s. 28 DAC Act were framed against the accused vide order dated 17-09-2012 to which he denied the incident and claimed to be tried.
6. The prosecution, in order to prove the case beyond all reasonable doubt, examined five witnesses in support of its case during the course of trial. R. No. 543522/2016 State v. Pradeep & Anr. Page 3 of 23
7. PW-1 B. Lal deposed that on 30.10.1998 an information was telephonically received in his office at 15, Shamnath Marg, Delhi from the ACP/ IPR requesting to depute some drug inspector to join the raiding party and accordingly, he alongwith his colleague Sh. P.K. Jaggi reached at Gauri Shankar Mandir Chandni Chowk, Delhi at around 01:15 PM where they were briefed about the action plan. He further deposed that at around 01:30 PM, a decoy customer followed by shadow witness was sent to possess drugs of doubtful quality and about 01:40 PM the shadow witness gave a fixed signal that the deal had been finalised. He further deposed that immediately they reached there and found that the decoy customer was holding 30x8x1 MLM Ampules of Fortwin Injection and 6x10x10 becosule capsules, near Moti Cinema which were purchased by the decoy customer from Prem Pal and Pradeep. He further deposed that later on on inquiry the name of Prem Pal and Pradeep were revealed and the decoy customer informed that it was Pradeep who received the amount of Rs. 500/- and balance amount of Rs. 1000/- was received by Prem Pal. He further deposed that the aforesaid drugs were delivered by Pradeep after receiving the balance amount of Rs. 1000/- by Prem pal and the Fortwin injections were examined by Mr. Subhash Sidhwani, representative of Ranbaxy Laboratories Limited who informed that the drug was not their product. He further deposed that he collected the drugs namely Fortwin injection and Bicasol capsules from the delivered goods from the decoy customer and prepared form 17 alongwith Form 17A and the remaining stock of drugs was seized by the IO vide memo PW-1/A, bearing R. No. 543522/2016 State v. Pradeep & Anr. Page 4 of 23 his signature at point A. He further deposed that the currency notes were also recovered from Prem Pal and Pradeep by the IO which were initialled by the IO and currency of Rs. 1000/- from accused Prem Pal was taken into possession vide memo PW-1/B. He further deposed that from the search of accused Pradeep Kumar one currency notes of Rs. 500/- denomination of Rs. 100/- were recovered and the same were kept in two different envelopes and sealed with the seal of 'SK' and they were taken into possession vide memo PW-1/B. He further deposed that upon inquiry accused Prem Pal informed them that some more drugs along- with other material were lying at his residence at E-457, Jagjeet nagar, Usmanpur Delhi and subsequently the aforesaid premises was raided and on search different drugs of different manufactures along-with aluminium foils rolls, lablels, stickers were recovered from Prem Pal and he collected one sample of Odoxil tablet from Prem Pal as per procedure of the Drugs Act and the specimen sample of Fortwin injection, bicasole capsules and Odoxil tablet were also collected for verification from the manufacturer of the its genuineness. He further deposed that remaining stocks were recovered and seized by SI Satish Kumar and at about 07:00 PM the seizure was finished and subsequetly an FIR was lodged at PS Kotwali Dariyaganj by the IO and the remaining case property mentioned above was taken into possesion vide memo PW-1/D, bearing his signature at point A. He further deposed that a separate case was also registered under the Drugs Act which is pending in some other court and his statement was recorded by the Police. He further deposed that copy of form no. 17 is Ex.PW1/E, bearing his R. No. 543522/2016 State v. Pradeep & Anr. Page 5 of 23 signature at point A and B. This witness is correctly identified the case property. He further deposed that two forms 17 dated 30-10-1998 about taking the samples on the said date were prepared by him on the spot and copies of the same were handed over to Abdul Khan and Prem Pal respectively against due acknowledgement. He further deposed that one of the said form 17 in respect of Fortwin injection and Becosule capsules is Ex.PW1/E1 , bearing his signature at point A and signature of Abdul Khan at point B and it also bears that signature of P.K. Jaggi at point C, Subhash Sindhwani at point D, IO Satish Kumar at point E and accused Pradeep at point F and Prem Pal at point G. He further deposed that the other Form 17 in respect of Odoxil tablet is Ex.PW1/E2 and bears his signature at point A and signature of Abdul Khan at point B and it also bears that signature of P.K. Jaggi at point C, Subhash Sindhwani at point D, IO Satish Kumar at point E and accused Pradeep at point F and Prem Pal at point G. He further deposed that two receipts of form 17 A were also prepared separately corresponding to these two form 17 in respect of sample drugs and the same are exhibited at Ex.PW1/F1 and Ex.PW1/F2, bearing his signature at point A and signature of Abdul Khan at point B and it also bears that signature of P.K. Jaggi at point C, Subhash Sindhwani at point D, IO Satish Kumar at point E and accused Pradeep at point F and Prem Pal at point G. He further deposed that all these samples were collected by him and sent to Government Analyst, CIPL, Ghaziabad on 03.10.1998 for test analyst on separate form 18 as per the prescribed procedure and office copy of these form are exhibited as PW1/G1, G2 R. No. 543522/2016 State v. Pradeep & Anr. Page 6 of 23 and G3. He further deposed that the Government Analyst declared samples of all the three drugs as spurious and not of standard quality by the separate report on form 13 in triplicate and record dated 25.02.1999 in respect of Fortwin injection is Ex.PW1/H1, Report dated 05.03.1999 in respect of Odoxil Tables is Ex.PW1/ H2 and report dated 25.01.1999 in respect of Bicosul tablet is Ex.PW1/H3. He further deposed that one report of the Government Analyst in original was forwarded to the accused for all the three drugs vide his letter dated 22.10.1999 by registered post wherein they were asked to diclose the sourse of acquiring the drugs found in their possession and the same is Ex.PW1/I runing into three pages and two of these reports dated 25.02.1999 and 25.01.1999 were also forwarded to Abdul Khan vide letter dated 22.10.1999 which is Ex.PW1/J running into two pages. He further deposed that he made inquiries with the respective original manufactures of the drugs to ascertain their genuineness and office copy of letter of inquiry dated 22.11.1999 addressed to manager QA M/s Ranbaxy Laboratories Limited is Ex.PW1/K (in respect of Fortwin injection) enclosing one sealed specimen samples portion of the subject drug, office copy of letter of inquiry dated 22.11.1999 addressed to manager QA M/s Lupin Laboratories Limited is Ex.PW1/L (in respect of Odoxin injection) enclosing one sealed specimen samples portion of the subject drug. He further deposed that reply of the same was received from Ranbaxy Laboratories, declaring the drugs to be spurious as it was not manufactured by them and the said reply was exhibted as Ex.PW1/M runing into two pages. He further deposed that similar reply of this letter was R. No. 543522/2016 State v. Pradeep & Anr. Page 7 of 23 received from Lupin Laboratories Limited vide their letter dated 17.01.2000 declaring the sample to be spurious, reply exhibited as PW1/N and runing into two pages. He further deposed that he made personal inquiries with M/s Omni Protech Drugs Limited, Pune on 16.09.1999 along-with local drug inspector regarding genuineness of Bicosul Capsules samples plot no. 98516, whose sample was declared as spurious and not of standard quality by the Government Analyst Delhi. He further deposed that he handed over one specimen sealed portion of the drug to Mr. S.G. Limaye, authorised signatory of Omni Protech Drugs Limited who after comparing the sample with the corresponding samples manufactured by them declared the same as spurious and submitted a letter dated 16.09.1999 detailing the reason to be spurious, running into 5 pages alongwith relevant documents pertaining to batch production record, test report copy etc., collectively exhibited as PW1/P. He further deposed that a letter dated 24.05.2000 was forwarded to the accused Pradeep enclosing copies of the two test reports dated 25.02.1999 and 25.01.1999 seeking details about source of procurement of drugs stated therein and office copy of the same is Ex.PW1/Q running into two pages and bearing his signature at point A. He further deposed that after completing the inquiry he filed the complaint dated 09.08.2000 in the court of law running in 11 pages and exhibited as PW1/R. He further deposed that he has also brought the remaining case property comprising of seals samples portion of drugs in sealed condition bearing signature of him, accused and witnesses dated 30.08.1998 and the sealed sample of Bicosul capsule is Ex.P5 and that of Odoxil R. No. 543522/2016 State v. Pradeep & Anr. Page 8 of 23 Tablet Ex.P6 and that of Fortwin injection Ex.P7.
8. PW-2 N.K. Sagar deposed that in the year 1998 he was working as A.R. of Omni Protech Drugs Limited and the office of the same was situated at B-4/54, Safdarjung Enclave Delhi. He further deposed that he does not remember the exact date but it was in the year 1998 that he received information through telephone from the ACP Crime Branch probably his name was Rajan Bhagat and he joined the investigation and was made a member of raiding party but does not remember which premises were searched and he does not remember anything about the present case.
9. PW-3 ASI Shiv Karan deposed that on 30.10.1998 he was posted at PS Kotwali and on that date he was working as Duty Officer. He further deposed that he received a rukka sent by SI Satish Kumar through constable Rajbir and on the basis of Rukka he recorded the formal FIR of this case. He further deposed that the correct corban copy of the FIR is Ex.PW3/A, bearing his signature at point A and B and he also made endorsement on rukka Ex.PW3/B.
10. PW-4 P.K. Jaggi deposed that on the basis of information received on phone in the Drugs Control Department which was thens ituated at 15 Shamnath Margh, he accompanied Sh. B. Lal, DI, on 31.10.1998. He further deposed that they had gone to a particular spot near Gauri Shankar Mandir, Chandani Chowk, where R. No. 543522/2016 State v. Pradeep & Anr. Page 9 of 23 they met SI Satish alongwith his team and they were briefed by him about the raid and a decoy customer namely Abdul Hasib Khan was deputed by the IO to purchase drugs suspected to be spurious from two persons namely Pradeep and Prem Pal. He further deposed that the decoy customer was followed by a shadow witness Mr. Sindhwani of Ranbaxy Laboratories and when the deal was completed and money was handed over in lieu of the drugs purchased by the Abdul Hasib Khan, he gave a particular signature and the raiding team members surrounded the purchaser as well as the two persons who sold the drugs. He further deposed that out of the purchased stock of drugs which were in the possession of the decoy customer, B. Lal, Drugs inspector took/ drew samples of the two drugs namely Fortwin Injection and Bicosul Capsules as per the rules defined under the Drugs and Cosmetic Rules, 1945 and he issued the form 17 Ex.CW1/E1, bearing his signature at point C for taking the samples from the decoy customer on which he had also signed as a witness apart from other witnesses. He further deposed that B. Lal offered the fair price for the said decoy but he refused and as such a receipt on form 17A Ex.PW1/F1, bearing his signature at point C was issued and the balance quantity of the drugs was seized by SI Satish Kumar from the decoy customer. He further deposed that he also accompanied B. Lal to the residence of Prem Pal located at E-457, first floor, Jagjeet Nagar, Delhi where Pram Pal was found at his residence several drugs and packing material used for the manufactured of different drugs. He further deposed that Sh. B. Lal drew a sample of Odoxil tablet manufactured by Lupin R. No. 543522/2016 State v. Pradeep & Anr. Page 10 of 23 Laboratories form Prem Pal in his presence and B. Lal issued form 17 Ex. PW1/ E2 bearing his signature at point C along-with other witnesses. He further deposed that B. Lal offered the fair price of the said drug to Sh. Prem Pal but he refused to accept the same and as such a form 17A Ex.PW1/F2, bearing his signature at point C was issued and thereafter they came back to PS Kotwali along-with the raiding team. This witness correctly identified the accused Pradeep.
11. PW-5 Dinesh Kumar deposed that presently he is posted as dealing assistant in Licensing Branch of Drugs Control Department and in that capacity is looking after the record and office file of the licensing branch pertaining to various licenses granted by the department in Delhi. He further deposed that as per the office record there was no drug licence (retail or wholesale or manufacturing of drugs) issued for the address E-457, Jagjeet Nagar, New Usmanpur, Third pusta, Delhi-53 as on or before 30.10.1998.
12. Evidence on behalf of the prosecution was closed vide order dated 08-05-2017. All the incriminating evidence which had come in evidence against the accused persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. on 28-08-2017 wherein the accused chose to lead DE.
13. DW-1 Satish Chauhan deposed that on 27.10.1998 at about 10:15 PM one Ram R. No. 543522/2016 State v. Pradeep & Anr. Page 11 of 23 Surat informed him that police had come to arrest accused from his rental house i.e. Friday Bazar Road, Gali no. 1, Sahadat Pur, Delhi-94 and he went there and found 10 to 15 police persons were present there and they caught hold the accused. He further deposed that when he asked them about the arrest then they replied that after the inquiry they will release him and thereby 10 to 15 persons present at that time and public persons inquired the accused in the said spot itself. He further deposed that nothing was recovered from the possession of the accused.
14. DW-2 Sukhdev Prasad deposed that on 27.10.1998 between 9-10 PM one Ram Surat informed him that police had come to arrest accused from his rental house i.e. Friday Bazar Road, Gali no. 1, Sahadat Pur, Delhi-94 and he went there and found 10 to 15 police persons were present there and they caught hold the accused. He further deposed that when he asked them about the arrest then they replied that after the inquiry they will release him and thereby 10 to 15 persons present at that time and public persons inquired the accused in the said spot itself. He further deposed that nothing was recovered from the possession of the accused.
15. DE was closed vide order dated 30-07-2018.
16. Final arguments were heard on behalf of both sides and the matter was fixed for R. No. 543522/2016 State v. Pradeep & Anr. Page 12 of 23 judgement vide. order dated 05-09-2022.
APPRECIATION OF EVIDENCE
17. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. To prove its case, it was thus for the prosecution to prove beyond reasonable doubt that the accused had committed the offences he has been charged of.
18. Before embarking into the guilt/innocence of the accused, the relevant sections are hereby reproduced for the sake of brevity.
Sections pertaining to TM ACT
78. Penalty for applying false trade marks, trade descriptions, etc. Any person who,--
(a) falsifies any trade mark; or
(b) falsely applies to goods any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 117, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 117; or
(g) causes any of the things above mentioned in this section to be done; shall, unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both: R. No. 543522/2016 State v. Pradeep & Anr. Page 13 of 23
Provided that where the offence under this section is in relation to goods or any package containing goods which are drugs within the meaning of clause (b) of section 3 of the Drugs Act, 1940 (23 of 1940 .), or food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954 (37 of 1954 .), the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
79. Penalty for selling goods to which a false trade mark or false trade description is applied. Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trade mark or false trade description is applied or which, being required under section 117 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves,--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently; be punishable with imprisonment for a term which may extend to two years, or with fine, or with both: Provided that when the offence against this section is in relation to goods or any package containing goods which are drugs as defined in clause (b) of section 3 of the Drugs Act, 1940 , (23 of 1940 .) or" food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954 , (37 of 1954 .) the offender shall be punishable with imprisonment for a term which may extent to three years, or with fine, or with both. Sections pertaining to CR ACT
63. Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of--
(a) the copyright in a work, or
(b) any other right conferred by this Act, except the right conferred by section 53A]except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that 3[where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a R. No. 543522/2016 State v. Pradeep & Anr. Page 14 of 23 term of less than six months or a fine of less than fifty thousand rupees.] Explanation.
--Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.
Sections pertaining to IPC
486. Selling goods marked with a counterfeit property mark.--Whoever sells, or exposes, or has in possession for sale, any goods or things with a counterfeit property mark affixed to or impressed upon the same or to or upon any case, package or other receptacle in which such goods are contained, shall, unless he proves--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark, and
(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or
(c) that otherwise he had acted innocently, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Determination qua offences under the DAC Act
19. The essential ingredient which are required to be proved in order to successfully convict a person of offences under section 27(b), 27 (c), 27(d) and 28 of the DAC Act is that such person must have manufactured/distributed for sale, stocked or exhibited or offered for sale any drug of the description contained in the aforesaid clauses. Regardless of other incriminating evidence, if the primary ingredient of manufacturing/distributing for sale, stocking or exhibiting or offering for sale is not proved, the case of the prosecution will fail. In this backdrop, this Court will now proceed to examine the evidence adduced on R. No. 543522/2016 State v. Pradeep & Anr. Page 15 of 23 behalf of the prosecution in the present case.
20. In the present case the prosecution has examined a total of 5 witnesses in order to successfully bring on the prosecution against the accused persons. The first witness produced on behalf of the prosecution is PW-1 B Lall. This witness has gone on to depose that upon the receipt of information, he reached the spot and the decoy customer was sent to purchase the drugs of doubtful qualities from he accused persons. This witness further goes on to depose that upon the receipt of the fixed signal, he reached along with the raiding team reached the spot where the transaction had taken place and found the decoy customer to be holding the capsules and the injections and he was informed by the decoy customer that it was accused Pradeep who had received the payment of the drugs in question.
21. Therefore it becomes apparently clear that PW1 was not an eyewitness to the transaction and his testimony is hearsay in nature. By his own admission of this witness, he had reached the place where the transaction took place after the same had been completed and hence no reliance can be placed upon the testimony of DW1 in the present case. This witness has further gone on to depose that upon enquiry from accused Prem P,al certain drugs were seized from his residence located at Jasjit Nagar Delhi. The entire testimony of this witness is silent as regards to any recovery alleged to have been done from accused Pradeep. The only incriminating part in the testimony of this witness is that the currency notes R. No. 543522/2016 State v. Pradeep & Anr. Page 16 of 23 using the transaction were allegedly said to have been recovered from accused Pradeep. However this Court is of the considered opinion that merely the recovery of currency notes from accused Pradeep is not sufficient to successfully discharge the burden of proof placed upon the prosecution. Nothing has come in the testimony of this witness that accused Pradeep Kumar had been found to have been manufacturing/distributing for sale, stocking or exhibiting or offering for sale the drugs allegedly recovered by the raiding team. Accordingly, the testimony of this witness is not of any help to the prosecution.
22. The other public witness produced on behalf of the prosecution PW 2, Mr. Sagar has turned totally hostile and stated that he has no recollection about the present case. Since nothing has come in the examination in chief of this witness, the testimony of this witness also is not of any help to the prosecution.
23. The other witness examined on behalf of the prosecution i.e. PW4, has also deposed that the entire transaction was done by a decoy customer namely Abdul Hassan Khan who was with the shadow witness namely Mr. Sidhwani from Ranbaxy Laboratories. A perusal of the testimony of this witness shows that he has deposed in his examination-in-chief that he, along with the members of the raiding party, reached the spot where the transaction had taken place only after the deal had been complete and the money was handed over to the accused persons. Hence it becomes apparently clear that this witness also is not an R. No. 543522/2016 State v. Pradeep & Anr. Page 17 of 23 eyewitness to the transaction in question and is testimony also is in the nature of hearsay evidence and therefore no reliance can be placed upon the testimony of this witness in order to prove the case of the prosecution. Moreover,, as per the testimony of this witness, the seizure of adulterated/spurious drugs was done from from the house of the accused Prem pal and no seizure had been effected from the possession of accused Pradeep.
24. Further, the prosecution has failed to examine either the decoy customer i.e. Abdul Hasib Khan or the shadow witness i.e. Mr. Sidhwani and the failure of the prosecution to examine the them as witnesses is fatal for the case of the prosecution as these two witnesses were material witnesses who were ey- witnesses to the transaction in question and failure to examine them goes into the root of the case of the prosecution since these two people were the only witnesses who could have depose about the transaction which had taken place.
25. The law as regards to non-examination of material witnesses is fairly settled and has been reiterated by the Hon'ble Apex Court in multiple pronouncements. In Manjit Singh & Anr vs State Of Punjab & Anr, 13 September, 2013 the Hon;ble Court while discussing the law related to non-examination of material witnesses, held as follows:
"22. In Takhaji Hiraji v. Thakore Kubersing Chamansing[5] the Court has opined that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not [pic]convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could R. No. 543522/2016 State v. Pradeep & Anr. Page 18 of 23 have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself--whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."
26. What emerges from he aforesaid pronouncement is that it is not the number and quantity, but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non-examination of other witnesses. However, where the only witnesses who were eye-witness and material in nature were not examined as witnesses, no amount of other hearsay evidence would be beneficial for the case of the prosecution.
27. Hence, in light of the aforesaid observations, the accused Pradeep is hereby acquitted of the charges under the Drugs and Cosmetics Act, 1940. R. No. 543522/2016 State v. Pradeep & Anr. Page 19 of 23
Determination qua 63 CR Act.
28. The accused is also facing trial for offences under s. 63 CR Act.
29. The primary ingredient which needs to be discharged for successfully proving a charge u/s 63 CR Act is knowingly committing infringement or abetting the infringement of the right of copyright in a work. However, no evidence, either documentary or oral has been produced by the prosecution in order to successfully prove the charges levelled. The charge against the accused is that he had been found in possession of drugs bearing the falsified trade marks of Ranbaxy Laboratories. However, no one from Ranbaxy Laboratories stepped into the witness box on behalf of the prosecution to depose regarding the alleged falsification of marks. Even otherwise, as discussed above, all of the witnesses examined on behalf of the prosecution are hearsay in nature and no reliance can be placed upon them in order to prove the essential ingredient of the recovery having been effected from accused Pradeep Kumar.
30. The accused is hereby acquitted of the offence u/s 63 CR Act.
Determination qua 78/79 TM Act, 1958.
31. The accused is also facing trial for offences under s. 78/79 Trade and Mercantile Marks Act, 1958.
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32. The primary ingredient which needs to be discharged for successfully proving a charge u/s 78/79 Trade and Mercantile Marks Act is knowingly applying false trade marks, trade descriptions, etc in terms of the captioned section. However, no evidence, either documentary or oral has been produced by the prosecution in order to successfully prove the charges levelled u/s s. 78/79 Trade and Mercantile Marks Act, 1958. The charge against the accused is that he had been found in possession of drugs bearing the falsified trademarks of Ranbaxy Laboratories. However, no one from Ranbaxy Laboratories stepped into the witness box on behalf of the prosecution to depose regarding the alleged falsification of marks. Even otherwise, as discussed above, all of the witnesses examined on behalf of the prosecution are hearsay in nature and no reliance can be placed upon them in order to prove the essential ingredient of the recovery having been effected from accused Pradeep Kumar.
33. The accused is hereby acquitted of the offence u/s s. 78/79 Trade and Mercantile Marks Act, 1958.
Determination qua 486 IPC.
34. The accused is also facing trial for offences under s. 486 IPC.
35. The primary ingredient required to be proved in order to successfully convict a person u/s 486 IPC is that the said person has sold, or exposed, or had in possession for sale, any goods or things with a counterfeit property mark affixed R. No. 543522/2016 State v. Pradeep & Anr. Page 21 of 23 to or impressed upon the same or to or upon any case, package or other receptacle in which such goods are contained. Hence, recovery of the goods intended to be sold with a counterfeit property mark from the accused has to be proved. However, as discussed above, a perusal of the entirety of the evidence led by the prosecution makes it apparently clear that the entirety of the evidence is hearsay in nature and the only witnesses who were eye-witness and could have deposed regarding the possession aspect, were not examined.
36. Hence, the primary ingredient of recovery of the good/article bearing the counterfeit mark has not been proved in the present case.
37. The accused is hereby acquitted of the offence u/s 486 IPC.
Findings
38. n view of the above observations and discussion, this Court is of the considered opinion that the prosecution had failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecution is to prove the case beyond all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs. Reliance in this regard is placed on S.L.Goswami v. State of M.P, 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held that:-
"...... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the R. No. 543522/2016 State v. Pradeep & Anr. Page 22 of 23 prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negate it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
39. The accused Pradeep is hereby acquitted of the offence punishable under Section 78/79 TM Act, 63 CR Act, s. 486 IPC, u/s 27(b) (ii), 27 (c), 27 (d) and s. 28 DAC Act.
40. File be consigned to Record Room after due compliance.
Announced in open court Pritu Raj
On 05-09-2022. Metropolitan Magistrate-01
Rohini Courts, Delhi.
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