Karnataka High Court
The State Through Durg Inspector ... vs Sharanagouda S/O Basavanagouda And Anr on 10 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.200007/2014
BETWEEN:
THE STATE THROUGH
DRUG INSPECTOR, BELLARY,
REPRESENTED BY ADDL. STATE PUBLIC
PROSECUTOR, GULBARGA
.... APPELLANT
(BY SRI GURURAJ V. HASILKAR, HCGP)
AND:
01. SHARANAGOUDA S/O BASAVANAGOUDA
R/O: H.NO.1-38/A, GABBUR, TQ: DEODURGA
RAICHUR DIST. MANAGING PARTNER OF A-1.
02. SHIVASHARANA T S/O BASAVARAJ
H.NO.1-49, NEAR BANGALAKATTI, GABBUR
TQ: DEODURGA DIST: RAICHUR,
MANAGING PARTNER OF A-1.
... RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 377 OF
THE OF CODE OF CRIMINAL PROCEDURE PRAYING
TO (A) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT DATED 25.07.2013 PASSED BY THE I
ADDL. SESSIONS JUDGE AT RAICHUR IN SESSIONS
CASE NO.121/2012, (B) BE PLEASED TO MODIFY THE
SENTENCE IMPOSED BY THE TRIAL COURT AND
THEREBY ENHANCE THE SENTENCE IN
ACCORDANCE WITH SECTION 27 (D) READ WITH
SECTION 18-A (VI) OF THE DRUGS AND COSMETICS
ACT AND (C) FURTHER BE PLEASED TO IMPOSE
ADEQUATE SENTENCE ON THE RESPONDENTS/
ACCUSED AS PER SECTION 27(D) READ WITH
SECTION 18-A (VI) OF THE DRUGS AND COSMETICS
ACT.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING;
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JUDGMENT
This appeal arises out of order of sentence passed by the I Addl. Sessions Judge, Raichur in S.C.No.121/2012, wherein by an order dated 25.07.2013 accused Nos.2 and 3 - appellants are convicted for the offence punishable under Section 27
(d) of the Drugs and Cosmetic Act-1940. Both the accused are sentenced to undergo one day imprisonment till raising of the Court. Further both the accused are sentenced to pay fine of Rs.10,000/- each failing which to undergo simple imprisonment for three months.
02. Aggrieved by the said order this appeal is preferred by the State through Drugs Inspector Bellari on the following grounds:
That the sentence imposed is inadequate and same may be modified as prescribed for the offence 4 punishable under Section 27 (d) of the Drugs and Cosmetics Act - 1940. The Court has erroneously taken the lenient view. The same is required to be enhanced as prescribed under Section 27 (d) of the Drugs and Cosmetics Act - 1940. The Court has not taken into consideration the violation of the said section. With these main grounds the appellant prayed to allow the appeal and modify the sentence passed by the Trial Court.
03. Heard Sri. Gururaj V. Hasilklar, learned High Court Government Pleader for the State - Appellant and Sri. Shivanand Patil, learned counsel for the respondent.
04. It is evident that the complaint came to be filed by the Drugs Inspector Bellari under Section 200 of Code of Criminal Procedure (For short hereinafter referred as Cr.P.C.) against the accused persons alleging that when the complainant and her staff conducted test 5 purchase in the shop premises of accused Nos.2 and 3, they found that accused No.3 had sold Drugs on schedule-H, thereby violated provisions of 65 (9) (a) punishable under Section 27 (d) read with Section 18-a
(vi) of the Drugs and Cosmetics Act - 1940. The accused No.2 and 3 have also sold the drugs without cash memo. Thereby committed offences punishable under Sections 65 (4) (3) (i) punishable under Section 27 (d) read with Section 18-a (vi) of the Drugs and Cosmetics Act - 1940. Hence, the said complaint came to be lodged.
05. The accused Nos.2 and 3 appeared and filed an application before the Trial Court on 24.07.2013 under Section 265-B under Chapter XXI-A Plea Bargaining of the Cr.P.C. with a prayer that they intend for plea bargaining.
On 24.07.2013 in the Chamber of Presiding Officer, the plea bargaining was conducted. The complainant, accused Nos.2 and 3 and public 6 prosecutor were present. The prosecution submitted that if the accused pleaded guilty, it can be done. So, after completion of plea bargaining the said order came to be passed. It is evident from the order sheet that during the plea bargaining accused agreed to pay fine of Rs.10,000/- each and undergo imprisonment for one day. Complainant admitted that the drugs sold by the accused without prescription are very common in nature and those drugs are not life threatening drugs. The said drugs are used only for cough and fever.
06. Relying on the judgment of this Court in Crl.A.No.1309/2003 in the case of State by Drugs Inspector vs. B.N.Manjunath and another decision in Criminal Revision No.1409 and 1410/2009 wherein this Court had imposed minimum punishment in the similar cases for fine and imprisonment till raising of the Court. So considering the said aspect, the trial Court has imposed sentence which is now challenged by the appellant-State.
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07. On perusing the appeal memo there are no valid grounds to interfere with the order of the trial Court passed under special provisions of Chapter-XXI-A Plea Bargaining under Code of Criminal Procedure. In fact as per said Chapter Section "265-G" reads as under:
"265-G. Finality of the judgment.- The judgment delivered by the Court under section 265-G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment."
The appeal does be lie against the said order. No provisions of law is pointed out as to how this appeal is filed. Moreover the order sheet clearly indicates that the complainant himself admitted before the Court during plea bargaining, that the said drug sold by the accused 8 are very common in nature and they are not life threatening drugs or any sedatives, they are used only for cough and fever. The punishment prescribed under Section 27(d) of the Drugs and Cosmetics Act, is imprisonment shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees, provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.
08. The main contention urged is, that the Trial Court has not taken into consideration the violation of Rule 65 (4) (3) (i) of the Drugs and Cosmetics Act, as accused have has sold drug without cash or credit memo. But on perusing the order it is evident that the trial Court in its order has referred that the allegations are under Rule 65(9)(a) and Rule 65(4)(3)(i) punishable under Section 27(d) of the Drugs and Cosmetics Act. 9 Therefore, there is no basis for contention that the Trial Court has not taken into consideration the provisions of Act and Rules.
09. So taking into consideration the nature of drugs and its effect, and as they are commonly used for cough and fever and as they are not life threatening drugs or any sedatives, the Court has imposed said sentence. In view of special provisions under Chapter- XXI-A 'plea bargaining' and also in view of the reasons assigned by the learned Sessions Judge, I find no ground to interfere with the sentence and fine imposed by the trial Court. Accordingly, the appeal being devoid of merit is liable to be dismissed.
The appeal under Section 377 of Code of Criminal Procedure is hereby dismissed.
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The order of sentence passed in S.C.No.121/2012 dated 25.07.2013 by the I-Addl. Sessions Judge, Raichur, is confirmed.
Send back the secured records to the concerned Court forthwith.
Sd/-
JUDGE KJJ/sdu