Himachal Pradesh High Court
Som Dutt vs State Of Himachal Pradesh on 12 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision Nos. 4055 & 4082 of 2013
Date of Decision: 12.12.2016
______________________________ ________________________________________
.
[
1. Cr.R. No.4055 of 2013
Som Dutt .........Petitioner.
Versus
State of Himachal Pradesh ..........Respondent.
of
2. Cr.R. No. 4082 of 2013
Dr. I.S. Kaundal .........Petitioner.
Versus
Coram
rt
State of Himachal Pradesh ..........Respondent.
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner(s): Ms. Anjali Soni Verma, Advocate, for the
petitioner in Cr.R. No. 4055 of 2013.
Mr. Ajay K. Sood, Senior Advocate, with
Mr. Dheeraj K. Vashishat, Advocate for the
petitioner in Cr.R. No. 4082 of 2013.
For the respondent: Mr. P.M. Negi, Additional Advocate
General with Mr. Ramesh Thakur, Deputy
Advocate General.
_______________________________________________________________
Sandeep Sharma, J. (Oral)
Since both the cases have arisen from the common judgment dated 12.7.2013 passed in Criminal Appeal No. 7/2009, this Court vide order dated 18.10.2016 clubbed the same for final adjudication together, Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -2-accordingly, same are being taken for disposal together since common question of law and facts are involved.
2. Present criminal revision petitions filed under Sections 397/401 of .
the Cr.PC., are directed against the judgment of conviction and sentence dated 12.7.2013, passed by the learned Sessions Judge, Mandi, District Mandi, HP, in Criminal Appeal No.7/2009, affirming the judgment dated 22.10.2008, passed by the learned Chief Judicial Magistrate, Mandi, District Mandi, HP, in of Drugs Act Case No. 181-I/2003, whereby the accused-petitioners (in both the petitions) have been sentenced to undergo simple imprisonment for a period rt of one year and to pay fine of Rs. 5,000/- each, and in case of default, to undergo simple imprisonment for a period of two months each, for the commission of offence punishable under Section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940 (in short "the Act") and sum of Rs. 15000/- has been also ordered to be confiscated in favour of the State of H.P under the provisions of Section 31 of the Act.
2. Briefly stated facts as emerge from the record are that on receipt of secrete information that petitioner-accused Dr. I.S. Kaundal (hereinafter referred to as "accused No.1") was engaged in selling of drugs and same were being misused by the youth, Kapil Dhiman, Drug Inspector Mandi, on 14.11.2000, made a visit to the aforesaid clinic and found that clinic was being run in two independent adjacent shops abutted to the main road leading towards Kusum theatre, Mandi. As per the complainant, one shop was having glass enclosure just after the entrance, which was probably used for checking the patients, whereas the adjoining premises was an open room with counter ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -3- and open racks for the display and sale of drugs. As per story of the prosecution, at the time of inspection of clinic by the aforesaid drug inspector on 14.11.2000, Som Dutt (hereinafter referred to as accused No.2) was present .
and engaged in sale of drugs across the counter in the open shop. Since accused persons were found involved in the selling of drugs across the counter and open shop without there being valid license in their favour, the Drug Inspector stopped the sale of the drugs and took into possession the relevant of registers, handed over by accused No.1. Subsequently, on 21.11.2000, the Drug Inspector along with other staff assisted with the police party conducted rt raid in the clinic of accused No.1. Raiding party got the photographs clicked of the drugs stocked and exhibited for sale by the accused in the aforesaid clinic. After completion of investigation, the Drug inspector presented the challan in the competent Court of Law.
3. Learned Chief Judicial Magistrate, Mandi, District Mandi, HP, after being satisfied that prima facie case exists against the accused persons, put a notice of accusation, to which they pleaded not guilty and claimed trial.
Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having committed offence punishable under Section 27 (b) (ii) of the Act and accordingly, convicted and sentenced them as per description already given above.
4. The present petitioners-accused being aggrieved with the judgment of conviction passed by the learned trial Court, filed an appeal under Section 374 of Cr.PC, before the Court of learned Sessions Judge, Mandi, ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -4- District Mandi, HP, who vide judgment dated 12.7.2013, dismissed the appeal.
Hence, this criminal revision petition before this Court.
5. Mr. Ajay K. Sood, Senior Advocate, duly assisted by Dheeraj K. .
Vashishta & Ms. Anjali Soni Verma, Advocates, representing the petitioners-
accused vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not sustainable as the same are not based upon the correct appreciation of evidence available on record as of well as rule in vogue and as such, same deserve to be quashed and set-aside.
While referring to the judgments passed by the Courts below, Mr. Sood further rt contended that bare perusal of the same suggests that the courts below have not dealt with each and every aspect of the matter in its right perspective and as such, great prejudice has been caused to the petitioners-accused who are admittedly innocent persons. Mr. Sood further argued that the judgments of both the courts below are against law and facts on record, which admittedly have been passed ignoring the provisions contained in Sections 18(a) and 18
(c) of the Drugs and Cosmetics Act, 1940 and as such, same cannot be allowed to sustain. While referring to the evidence led on record by the prosecution, Mr. Sood, strenuously argued that the Drug Inspector miserably failed to prove the case against the petitioners and there was no evidence on record suggestive of the fact that the petitioners-accused was engaged in selling the drugs across the counter and as such, no conviction could be recorded against the petitioners-accused. Mr. Sood further argued that none of the associated independent witness supported the prosecution story and as such, there was no question of convicting the petitioners-accused. He further ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -5- stated that approach adopted by the courts below is highly unjust, illegal and contrary to law, which has prejudiced the case of the petitioner accused and as such, judgment of conviction recorded by the courts below deserve to be .
quashed and set-aside. Mr. Sood further argued that the material questions were not put to the petitioners while examining them under Section 313 of the Cr.PC, as a result of which, the case of the petitioners has been prejudiced.
Ms. Anjali Soni Verma, on the other hand, also invited attention of this Court to of the statements of PW4 and PW5 to demonstrate that the petitioner-accused No.2 used to clean the clinic and there is no evidence to prove that he rt indulged in selling of drugs. She further stated that the statement of PW5 suggests that the petitioner-accused No.2 was not physically present at that time, whereas case of the prosecution is that at the time of raid, both the accused persons were present but aforesaid vital aspect of the case has been totally ignored by the courts below while recording conviction of the accused.
While concluding the argument, learned counsel for the petitioners further contended that being registered medical practitioner, petitioner accused No.1 was entitled to stock the medicines and he could further sell the same to his patients, but in the present case, there is no evidence led on record by the prosecution suggestive of the fact that the petitioners were found selling medicines to persons other than the patients and as such, judgment being totally contrary to the provisions of law as well as facts of the case, deserve to be quashed and set-aside. Learned counsel for the petitioners-accused further stated that in the instant cases, prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt by leading cogent, ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -6- reliable and trustworthy evidence and as such, same deserves to be quashed and set-aside.
6. On the other hand, Mr. P.M. Negi, learned Additional Advocate .
General duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, representing the State supported the impugned judgments passed by the courts below. Mr. Negi, strenuously argued that the judgments passed by the courts below are based upon the correct appreciation of the evidence of available on record and as such, in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially in rt view of the fact that courts below have dealt with each and every aspect of the matter very meticulously. He further argued that bare perusal of the evidence available on record clearly suggests that petitioners were indulged in selling of drugs in violation of the provisions contained in the Act and as such they were rightly convicted and sentenced by the Court below. While concluding his arguments, Mr. Negi invited attention of this Court to the Section 18 of the Drugs and Cosmetics Act, 1940 to demonstrate that the petitioners accused being doctor and salesman had no authority to sell, stock or exhibit or to offer for sale or distribute any drug (or cosmetic) except under, in accordance with the conditions of, license issued for such purpose by the competent authority and as such, petitioners were rightly booked for violation of provisions of Section 18 of the Act. Mr. Negi, also reminded this Court of its limited powers while exercising revisionary powers under Section 397 of the Cr.PC as far as re-appreciation of the evidence is concerned. In this regard, he placed reliance upon the judgment passed by Hon'ble Apex Court in case ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -7- State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and .
examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the of evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
7. rt I have heard learned counsel for the parties as well carefully gone through the record
8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant cases, where accused have been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based upon correct appreciation of the evidence on record.
9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -8- (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or .
procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant of para of the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as rt to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
10. Perusal of the documents adduced on record clearly suggests that the petitioner accused No.1 is a registered medical practitioner and as such, runs his clinic under the name and style of Kaundal's Clinic and Barju Hospital near Kusum Theatre, Jail Road, Mandi. It is also undisputed that accused No. 1 being registered medical practitioner is entitled to stock and exhibit the drugs for the purpose of giving the same to his patients. In the instant case, counsel representing the petitioners stated that stocking of drugs by accused ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP -9- No.1 for the purpose of giving the same to his patients in no manner could be held to be in violation of section 18 of the Act, rather, to prove .
the guilt, if any, of accused, the complainant is/was required to establish that beside stocking/exhibiting, accused persons were involved in the selling of drugs to persons other than patients. In the instant case, raid was conducted in the clinic on 14.11.2000 and 21.11.2000 by the Drug of Inspector Mandi along with Nihal Singh as well as police officials HC Sanjay Kumar and constable Jitender Kumar of police post Mandi. The clinic of petitioner No.1 was inspected by the Drug Inspector (PW7) on rt the basis of secrete information received by the department to the effect that petitioner accused is indulged in selling of drugs which were being mis-used by the youth. On checking, aforesaid drug inspector found that petitioner accused was having clinic in one room, whereas adjoining shop where the drugs were stored and exhibited on wooden racks was directly under the control and supervision of accused No.1 and as such accordingly, booked accused for the commission of offence punishable under Section 27-b (ii) and (d) of the Act.
11. In the instant cases, Drug Inspector with a view to prove its case examined PW1 Nihal Singh, who had accompanied the Drug Inspector and who had witnessed search on 14.11.2000. PW2 H.C. Sanjay Kumar and PW3 C. Rajender Kumar were also present along with PW7 i.e. Drug Inspector, they also witnessed the search of premises of ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 10 -
the accused on 21.11.2000. Similarly, PW4 Hira Lal and PW5 Sukhpal Singh, both the independent witnesses were associated by the police at .
the time of aforesaid raid having been conducted in the premises of the accused by the Drug Inspector, Mandi as well as police officials. PW6 Sanjiv Gupta, Proprietor Gupta Medical Agency, Mandi had sold some drugs to petitioner accused No.1 against the bills Ext.PW6/A and Ext.
of PW6/B. PW7 Kapil Dhiman, the Drug Inspector, Mandi, conducted search/raid of the premises of the petitioner accused No.1
12. PW8 Chaman Lal, Proprietor of Chaman Medical store, Baggi, the rt whole seller in drugs, who had also sold drugs to accused No1 vide bill Ext.PW7/01 and ExCW/H. CW9 Bihari Lal Gupta, Proprietor of Durga Remedy, Sundernagar also sold medicines to Dr. I.S. Kaundal against Ext.CW7/05 to Ext.CW7/07, CW10 Sh. Amrinder Singh, Proprietor of Thakural Medical Agency Chobata Bazar Mandi, allegedgly sold medicines to the accused against bill Ext.CW7/10, CW11 Munish Kumar Thakur, filed complaint against the accused before the Court.
13. Close scrutiny of evidence adduced on record by the prosecution in the shape of aforesaid witnesses clearly suggests that on 21.11.2000, shop/clinic of petitioner accused was searched/raided by the raiding party headed by the Drug inspector Kapil Dhiman PW7.
14. PW4 and PW5 so called independent witnesses stated that in their presence, the search was conducted by the drug inspector. In their ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 11 -
cross examination aforesaid independent witnesses have specifically stated that drugs were kept in stock for the purpose of giving it to the .
patients and not for the purpose of selling. Both the aforesaid witnesses have specifically sated that accused is a registered medical practitioner and accused No.2 Som Dutt is an employee of the accused. Similarly, PW7 Kapil Dhiman, PW1 Nihal Singh, Head Constable Sanjay Kumar and of PW2 Jitender also stated that drugs were recovered in much quantity by the raiding party on 21.11.2010. But aforesaid prosecution witnesses candidly admitted the suggestion put to them in their cross-examination rt that accused after his retirement is practicing as registered Medical Practitioner. Perusal of statement of PW5 Sukhpal suggests that accused, who is a registered medical practitioner had taken two rooms on rent from Sukhpal singh for running his clinic abutted to the main road leading towards Kusum theatre, Mandi. It has also come in his evidence that both the rooms were interconnected with the back door and room where the drugs were kept, was under the supervision and control of the accused and he used to give medicines to his patients and none-else.
15. This Court after carefully examining the aforesaid material evidence led on record by the prosecution is of the view that though prosecution was able to prove on record that during alleged raid having been conducted by the raiding party headed by the Drug ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 12 -
Inspector, drugs which were displayed in the racks were taken into custody but interestingly, none of these PWs stated something specific .
with regard to sale, if any, made by the accused in favour of persons other than his patients. All the prosecution witnesses categorically admitted that the petitioner is a registered medical practitioner, who used to give medicines to his patients and none-else. At this stage, it of would be profitable to reproduce herein below Section 18 of the Drugs and Cosmetics Act, 1940 and entry-5 of Schedule-K, the Drugs and Cosmetics Rules, 1945, which are relevant for adjudication of the rt present petition:-
Section 18 "18. Prohibition of manufacture and sale of certain drugs and cosmetics. --From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--
(a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute--
[(i) any drug which is fnot of a standard quality, or is misbranded, adulterated or spurious;
[(ii) any cosmetic which is not of a standard quality, or is misbranded, adulterated or spurious;]] [(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof [the true formula or list of active ingredients contained in it together with the quantities, thereof];]
(iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims 80 [to prevent, cure or mitigate] any such disease or ailment, or ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 13 -
to have any such other effect as may be prescribed;
[(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions .
indicated or recommended;
(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;]
(b) [sell, or stock or exhibit or offer for sale,] or distribute any drug 83 [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;
(c) [manufacture for sale or for distribution, or sell, or of stock or exhibit or offer for sale,] or distribute any drug [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:
rt Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis:
Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality."
"Entry-5 of Schedule-K, the Drugs and Cosmetics Rules, 1945 Schedule K (See rule 123) Class of Drugs Extent and Conditions of Exemptions
1.............................. ....................................
2A........................... ...................................
5. Drugs supplied by a registered medical All the provisions of Chapter practitioner to his own IV of the Act and the rules patient or any drug made thereunder, subject specified in Schedule C to the following supplied by a registered conditions:--
medical practitioner at the request of another such (1) The drugs shall be practitioner, if it is specially purchased only from a prepared with reference to dealer or a manufacturer the condition and for the licensed under these rules ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 14 -
use of an individual patient, and records of such provided the registered purchases showing the medical practitioner is not names and quantities of
(a) keeping an open shop such drugs together with or (b) selling across the their batch numbers and the .
counter or (c) engaged in names and addresses of the the importation, manufacturers shall be manufacture, distribution or maintained. Such records sale of drugs in India to a shall be open to inspection degree which render him by an Inspector appointed liable to the provisions of under the Act, who may, if Chapter IV of the Act and necessary, make enquiries the rules hereunder.] about purchases of the drugs and may take samples for test.
of
(2) In the case of medicine
containing a substance
specified in [Schedule G, H
rt or X] the following
additional conditions shall
be complied with:
(a) The medicine shall
be labeled with the
name and address of
the registered medical
practitioner by whom it
is supplied;
(b) If the medicine is for
external application, it
shall be labeled with the
words "For external use
only" or if it is for internal
use with the dose;
(c) the name of the
medicine or ingredients
of the preparation and
the quantities thereof,
the dose prescribed, the
name of the patient and
the date of supply and
the name of the person
who gave the
prescription shall be
entered at the time of
supply in register to be
maintained for the
purpose;
(d) The entry in the
register shall be given a
number and that
number shall be entered
::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 15 -
on the label of the
container;
(e) The register and the
prescription, if any, on
which the medicines are
.
issued shall be
preserved for not less
than two years from the
date of the last entry in
the register or the date
of the prescription, as
the case may be.
(3) The drug will be stored
under proper storage
conditions as directed on
of
the label."
(4) No drug shall be
supplied or dispensed after
the date of expiration of
rt potency recorded on its
container, label or wrapper
or in violation of any
statement or direction
recorded on such
container, label or
wrapper.}"
16. Perusal of aforesaid Section 18 of Act reproduced supra clearly suggests that no person other than himself or by any other person on his behalf is entitled to manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute any drug, which is not of standard quality, or is misbranded, adulterated or spurious. Schedule "K" appended to drugs and Cosmetics Rules ,1945, especially entry-5 of the said Schedule clearly suggests that all the provisions of Chapter IV of the Act and the Rules, wherein Section 18 containing condition of manufacture or sell or stock drug and cosmetic is included, shall not be applicable to the registered medical practitioner, meaning thereby, ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 16 -
provisions contained in Section 18 of the Chapter IV of the Act are not applicable in the case of registered medical practitioner or any person .
acting on his behalf and he is entitled to sell and store drugs subject to condition stipulated in entry-5 of the Schedule "K" appended to rules. If Registered medical practitioner stores or sells the drugs to a person in consonance with the stipulation in entry 5 of the schedule "K", no of offence is committed by him under Section 18 (c) of the Act but in the event of violation of conditions as contained in entry-5 of Schedule "K", no exemption can be claimed in terms of entry-5 of schedule "K" and rt person concerned shall render himself liable for offence punishable under Section 27-II of the Act. As per entry-5 of Schedule "K", registered medical Practitioner can supply drugs to his own patients, but in the same time, he is not entitled to keep an open shop or sell the medicines across the counter to persons other than his patients. Similarly, he should not be engaged in manufacturing selling of drugs in India to degree which would render himself liable to provision of chapter-IV of the Act and the rules therein.
17. Plain reading of aforesaid provision contained in entry-5 of the Schedule "K" suggests that registered medical officer can sell drugs only to his/her patients but he/she cannot keep stock of drugs in open shop or sell the same across the counter and in the event of violation of aforesaid conditions exemption as carved out in entry-5 of the schedule ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 17 -
"K" of the Drugs and Cosmetic Rules, would not be available to the persons concerned. In the instant case, as clearly emerges from the .
record that the petitioner accused No.1 was a duly registered medical practitioner and as such, he was entitled to stock the drugs with a view to give the same to his own patients without any license. In the instant case, perusal of statements having been made by PW6, 8 and 9, who of are the proprietors of different wholesale medical agencies clearly suggests that petitioner being registered medical practitioner had been purchasing medicines from them but once it has been concluded that rt petitioner accused No.1 being registered medical practitioner was entitled to stock the drugs in order to give it to his patients without any license, deposition made by the aforesaid PWs may not be of any relevance as far as case against the petitioners-accused is concerned.
Prosecution by way of citing aforesaid PWs made an attempt to prove that the petitioner had been purchasing drugs from the whole seller, as has been observed above, but there is no evidence suggestive of the fact that petitioners were selling the stock or medicine to the persons other than his patients. All the prosecution witnesses have, nowhere stated that during raid, petitioners-accused were found selling medicines across the counter to the persons other than the patients of petitioner accused No.1. Rather all the PWs categorically admitted that the petitioner-accused No.1 used to give medicines to his patients only.::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 18 -
18. Learned courts below while convicting the petitioner accused has placed heavy reliance upon the statement of PW5 .
Sukhpal Singh i.e. landlord of accused No.1, who in his statement, stated that he has given two shops to the accused on rent for running a clinic.
Aforesaid statement was further corroborated by the Drug Inspector, PW7 as well as other witnesses. It has specifically come in the evidence of that clinic was being run in one room, whereas in the adjoining room, the drugs were kept on wooden racks. Aforesaid prosecution witness in his cross examination admitted that accused was running the clinic, rt whereas in the adjoining room, racks were affixed but they stated that clinic was being run only in one of the room and medicines were stored in other room, which was an open shop.
19. Learned court below also placed heavy reliance upon the photographs adduced on record Ext.CW7/G to G3 to conclude that medicines were displayed in open shop by placing them in racks and counters. It is also undisputed that both the rooms were interconnected with the back door and accused used to sell the stocked drugs to his patients alone. In the instant case, courts below while placing reliance upon the provisions contained in entry-5 of schedule "K" of the Act came to conclusion that since drugs were being sold in the open shop, it stands proved that accused had kept an open shop, wherein he stored and exhibited the drugs on racks as well as counter of shop and ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 19 -
as such, exhibiting of drugs in open shop brings him out from the exemption as carved out in entry-5 of Schedule "K" of the rules framed .
under the Act. Since drugs were found to be stored and exhibited on the racks as well as counters of the shops adjacent to the clinic, courts below concluded that it cannot be concluded that the drugs exhibited in his shop were only for his patients, not for general public. But this of Court after carefully examining the evidence as well as provisions of law as reproduced here above, is not in agreement with the findings returned by the courts below because there is no evidence worth the rt name led on record by the prosecution suggestive of the fact that during raid having been conducted by the Drug Inspector, they found the petitioner accused selling medicines to persons other than his patients across the counter.
20. Careful perusal of provision contained in entry-5 of Schedule "K" clearly suggests that registered medical practitioner can sell the drugs specified in schedule-C for the use of patients. In the present case, two conditions as envisaged in aforesaid Rule, are clearly ruled out, 1) Petitioner is a registered medical practitioner entitled to sell drugs to his patients. 2) There is no evidence made available on record by the prosecution to demonstrate that accused were found selling medicines across the counter to persons other than patients of accused No.1.
::: Downloaded on - 15/04/2017 21:43:36 :::HCHP- 20 -
21. Now as far as condition with regard to display/exhibiting medicines in open shop is concerned, same cannot be read in isolation, .
rather this Court is of the view that while determining the question/issue of exemption, if any, in terms of entry-5 of schedule "K" of the Drugs and Cosmetics Rules, 1945, all the conditions contained in entry-5 Schedule "K" need to be read together and by no stretch of imagination, it can of be read in piecemeal manner to prove the guilt of the person having been charged with the violation of 18 (c) of the Act.
22. In the instant case, as has been observed above, it stands rt duly proved on record that there was no requirement of license, if any, for the petitioner accused No.1, being registered medical practitioner to sell medicines to his patients and in that capacity, he could always stock medicines; similarly, there is no evidence of selling medicines by the accused across the counter to persons other than his patients. If statement of PW5 Sukhpal Singh i.e. land owner, is read in its entirety, it clearly suggests that he had given two rooms on rent to the accused for running his clinic. Similarly, it has come in his statement that the rooms which were interconnected, were directly in the supervision and control of accused No.1 and he used to give medicines to his patients and none-else. With the aforesaid statement of PW5, it stands duly proved on record that both the rooms were taken on rent by the petitioner accused No.1, for running clinic/hospital, hence mere displaying of ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 21 -
medicines on the racks of shop/clinic of the petitioner may not be sufficient to conclude that same was displayed/exhibited for selling to .
the persons other than patients. Once as per law and rule, registered medical practitioner is entitled to stock the medicine, by no stretch of imagination, it can be said that he cannot keep the same in the shelves /racks of the clinic.
of
23. In the instant case, it stands duly proved on record that both the room/shops were in custody and control of accused No. 1, who was admittedly registered medical practitioner and as such, finding rt returned by the court below that "it cannot be concluded that drugs was stored by the accused only for his patients but it can be held that same was for the purpose of general public" is not sustainable. Had prosecution collected evidence to the effect that petitioner accused being a registered medical practitioner was selling medicines across the counter to persons other than his patients, aforesaid finding returned by the court below would have been accepted by this Court but since there is no evidence of selling the medicines across the counter to person other than his patients, aforesaid finding having been rendered by the court below cannot be accepted and same deserves to be rejected outrightly.
24. Consequently, in view of the detailed discussion made herein above, this Court is fully convinced and satisfied that the ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP
- 22 -
complainant was not able to prove on record violation of Section 18 C of the Act committed by the accused and as such, present petitions are .
allowed and judgments passed by the courts below are quashed and set-aside. Petitioners accused are acquitted of the charges framed against them. Interim order, if any, vacated. Bail bonds of the accused are discharged. Pending application, if any also stands disposed of of 12th December, 2016 (Sandeep Sharma), manjit Judge.
rt ::: Downloaded on - 15/04/2017 21:43:36 :::HCHP