Karnataka High Court
The State Of Karnataka vs Kushalchand @ Kushalchand Gandhi on 12 November, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 12TH DAY OF NOVEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.658 OF 2012
CONNECTED WITH
CRIMINAL APPEAL NO.652 OF 2012
IN CRL.A.No.658/2012
BETWEEN:
The State of Karnataka,
by Drugs Inspector,
Blood Bank and Intelligence Wing,
Bangalore Division,
Bangalore.
...APPELLANT
(By Shri. K.R. Keshavamurthy, State Public Prosecutor-1)
AND:
Kushalchand @ Kushalchand Gandhi,
Proprietor,
M/s. P.K.Pharma,
No.25/2, Gejjebashetty Galli,
Cottonpet, (G.B.Lane),
2
Bangalore - 560 053.
...RESPONDENT
(By Shri. A.N.Radhakrishna, Advocate)
*****
This Criminal Appeal filed under Section 378 (1) and (3)
of the code of Criminal Procedure, 1973, by the State Public
Prosecutor for the State praying to grant leave to file an appeal
against the judgment and order of acquittal dated 17.12.2011
passed in C.C.No.630/2003 by the Presiding Officer, Special
Court for Economic Offences, Bangalore - acquitting the
respondent/accused for offences punishable under Sections
18(a)(i), 17-B(e), 18(a)(i) and 18-B, punishable under Sections
27(c), 27(d) and 28-A of the Drugs and Cosmetics Act, 1940.
The State/SPP prays that the above order of acquittal may
be set aside.
IN CRL.A.No.652/2012
BETWEEN:
The State of Karnataka,
by Drugs Inspector,
Blood Bank and Intelligence Wing,
Bangalore Division,
Bangalore.
...APPELLANT
(By Shri. K.R. Keshavamurthy, State Public Prosecutor-1)
AND:
Kushalchand,
Proprietor,
3
M/s. P.K.Pharma,
No.25/2, Gejjebashetty Galli,
(G.B.Lane),
Bangalore - 560 053.
...RESPONDENT
(By Shri. A.N.Radhakrishna, Advocate)
*****
This Criminal Appeal filed under Section 378 (1) and (3)
of the code of Criminal Procedure, 1973, by the State Public
Prosecutor for the State praying to grant leave to file an appeal
against the judgment and order of acquittal dated 30.11.2011 in
C.C.No.632/2003 passed by the Special Court for Economic
Offences at Bangalore - acquitting the respondent/accused for
offences punishable under Sections 18(a)(i), 18(a)(vi), read
with 65(5)(3) and 65(6), 18-B and 22(cca) under Section 27(c),
27(d), 28-A and 22(3) of the Drugs and Cosmetics Act, 1940.
The State/SPP prays that the above order of acquittal may
be set aside.
These appeals coming on for Orders this day, the Court
delivered the following:
JUDGMENT
These appeals are considered together and disposed of by this common judgment.
There is a delay of 46 days in filing the criminal appeal in the first of these appeals and there is a delay of 46 days also in filing the second of these appeals. The reasons assigned 4 seeking condonation of delay are identical. For the reasons stated, the delay is condoned in each of these appeals. The appeals are considered on merits, even at this stage.
2. From a plain reading of the judgment in respect of Crl.A.658/2012, it is evident that the complainant, namely the Drugs Inspector appointed under Section 21 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Drugs Act', for brevity), who had jurisdiction over a certain area of Bangalore Urban District, was assigned Zone No.9, Bangalore Circle-III, as his jurisdiction. It is alleged that the accused in both these cases was one Kushalchand, Proprietor of a Drug Store by the name and style of M/s. P.K. Pharma, at No.25, Shop No.2, Gejjebaselly Galli, Cottonpet, Bangalore, holding a licence bearing No.KA/BNG-II/20B/506 and No.KA/BNG- II/21B/500 respectively, dated 13.04.1998, permitting him to carry on wholesale business in drugs. His licences were valid upto 31.12.2006. The accused was the person in charge and responsible for the day-to-day affairs of the said concern. It is 5 alleged that on credible information received by the Office of the District Health and Family Welfare, Bangalore Rural District, Bangalore, that certain stock of drugs supplied by the accused, which were labeled to have been manufactured by M/s. Orissa Drugs and Chemicals Limited, Bhuvaneshwar, were not the ones manufactured by the said Company and that therefore, the complainant along with his other colleagues, namely K.S. Nagajyothi - PW5, B,B. Onkareshwar - PW3 and Sanganna S. Seelli - PW4, and two independent witnesses Manjunath - PW6 and Venugopal - PW7, had on 3.1.2003, visited the stores of the District Health and Family Welfare Office, Bangalore Rural District and on verification of the stock of drugs received from the accused in the presence of K.S. Raju
- PW9, who was a Gazetted Assistant of the District Health and Family Welfare Office, Bangalore, found that the accused had supplied drugs by names:
i) 10 Shippers of 54x10x10 capsules of Doxycycline Hydrochloride Cap l.p.100 mg., 6
ii) 2 Shippers of (150x10x10) + (195x10x10) capsules of Doxycycline Hydrochloride Cap I.P., 100 mg.,
(iii) 3 Shippers of (600x10x10) + (199x10x10) tablets of Diclofenac Sodium I.P. Tablet.
(iv) 1000 x 1000 tab of Chlorpheniramine tab I.P.,
(v) 74 Shippers of 4 x 5 lts., of Phenyl Black Disinfectant fluid, Phenolic type.
And that the above drugs were labeled as "Government Hospital Supply - Not for sale". On further investigation, the said drugs were taken from the stock for test and analysis in accordance with the Sampling Procedure stipulated under the Drugs Act and Rules, and were sent to the Government Analyst, Drugs Testing Laboratory, Bangalore, on 4.1.2003. Thereafter, the complainant had seized the remaining stock under mahazar on 3.1.2003 itself.
It is stated that the complainant had sent a detailed report to the Drugs Controller, Bangalore, seeking permission to visit the manufacturer at Bhubaneshwar, Orissa, to verify the 7 authenticity of the products. The accused had supplied the drugs in support thereof and had furnished invoice bearing No.2638 dated 27.03.2002 and delivery notes bearing Nos.
1) 002267 dated 1.3.2002, 2) 002410 dated 22.3.2002, 3) 112419 dated 28.3.2002, 4) 00227 dated 6.5.2002, issued by the accused. It is stated that on 20th and 22nd January 2003, the complainant and other Drugs Inspectors from Karnataka, visited the manufacturer at Bhubaneshwar for investigation and out of the four drugs, the technical staff in charge of production and quality control had denied having manufactured and supplied two products of the drugs by name Chloropheniramine tablets and Phenyl Black Disinfectant fluid said to have been manufactured by M/s. ODCL, Bhubaneshwar. They were said to have stated that the products were not manufactured by them and were apparently spurious. On 29.01.2003, the complainant is said to have visited the premises of the accused at the aforesaid place for further investigation and it appears that the accused had furnished a letter confirming the supply of the four 8 drugs and sanction was sought to prosecute the accused, which was granted as on 3.5.2003, on the basis of which the accused were charge-sheeted for having committed offences punishable under Sections 18(a)(i) read with Section 17B(e), 18(a)(i) and 18-B, punishable under Section 27(c), 27(d) and 28-A of the Drugs and Cosmetics Act, 1940 and Rules thereunder.
3. Summons having been issued, the accused had appeared and after hearing both sides, charge was framed against the accused and he had pleaded not guilty and claimed to be tried. In support of the case, 16 witnesses were examined by the prosecution, apart from marking Exhibits P1 to P100 and material objects 1 to 1,364. Thereafter, the accused had marked two documents Exhibits D1 and D2 at the cross-examination of PW-1. Thereafter, the statements of the accused having been recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity), the parties were heard and the court below had framed the following points for consideration:
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"Point No.1: Whether the prosecution proves beyond all reasonable doubt that the accused is the proprietor of M/s.P.K.Pharma, No.25, Shop No.2, Gejjebasetty Galli, Cotton Pet, Bangalore-53, possessing valid licence and they are responsible for the day to day business of the said firm. That they were found supplied the following drugs:
i) 1x1000 tab of Chlorpheniramine tab I.P., B.No.8814, D/M:2/2002, D/E:1/2005 said to have been Mfd. By : M/s.Orissa Drugs and Chemicals Limited, (A Public sector under taking), Bhubaneswar- 751017.
ii) 1x5 lts., of Phenyl Black Disinfectant fluid, Phenolic type B.No.PK5/2, D/M:2/02, E/Drugs:1/05, said to have been Mfd. By: M/s. Orissa Drugs and Chemicals Limited, (A Public Sector under taking), 1 Mancheswar Industrial Estate, Bhubaneswar
- 751017.
which were not being manufactured and supplied by the true manufacturer M/s.Orissa Drugs and Chemicals Limited, (A Public Sector under taking) No.1, Mancheswar Industrial Estate Bhubaneswar, either directly or through accused to District Health and Family Welfare Office, Bangalore Rural District, Bangalore and thereby the accused has committed an 10 offence punishable under Section 27(c) of the Drugs and Cosmetics Act, 1940?
Point No.2: Whether the prosecution further proves beyond all reasonable doubt that the accused have sold the following drug:
Phenyl Black Disinfectant Fluid, Phenolic Type B.No.PK5/2, D/M:2/02, E/D:1/05, said to have been Mfd. By: M/s. Orissa Drugs and Chemicals Limited, (A public sector under taking) 1, Mancheswar Industrial Estate, Bhubaneswar - 751017, not of standard quality drugs to the District Health and Family Welfare Office, Bangalore Rural District, Bangalore and thereby the accused has committed an offence punishable under Section 27(d) of the Drugs and Cosmetic Act, 1940?
Point No.3: Whether the prosecution further proves beyond all reasonable doubt that the accused have failed to produce the invoice for the following drugs:
iii) 1x1000 tab of Chlorpheniramine tab I.P., B.No.8814, D/M:2/2002, D/E:1/2005 said to have been Mfd. By:M/s.Orissa Drugs and Chemicals Limited, (A Public Sector under taking), Bhubaneswar
- 751017.
iv) 1x5 lts., of Phenyl Black Disinfectant fluid, Phenolic type B.No.PK5/2, D/M:2/02, 11 E/Drugs:1/05, said to have been Mfd. By: M/s. Orissa Drugs and Chemicals Limited, (A Public Sector under taking), 1, Mancheswar Industrial Estate, Bhubaneswar - 751 017.
which were supplied by the accused to the District Health and Family Welfare Office, Bangalore Rural District, Bangalore -9 and thereby the accused has committed an offence punishable under Section 28-A of the Drugs and Cosmetics Act, 1940?
Point No.4: What order?"
The court below had answered the points in the negative and acquitted the accused. It is this which is under challenge in the present appeal.
4. From a plain reading of the judgment, it is seen that in considering the points framed for consideration, the court below has reiterated the gist of the testimony of each witness, namely PW-1 from Paragraph 16 to Paragraph 29 and after referring to the statements made by the witnesses in the examination-in- chief as well as in the cross-examination, has concluded that the contention that the labels used by the accused in the name of the 12 manufacturer had a fake label and drugs supplied being spurious were not proved on the basis of the evidence of the said witnesses.
Thereafter, the Trial Court has referred to the evidence of PW-2 who was a formal witness and has further discussed the evidence of PW-3 from Paragraph 31 to 33 and has referred to certain incriminating statements elicited in the cross- examination to the effect that the said witness did not know how many persons had signed on the sample drugs and has also not signed on the legal sample of the drugs, and hence has held that the evidence of PW-3 does not corroborate the evidence of PW-1.
The court has further proceeded to discuss the evidence of PW-4 from Paragraph 34 onwards and has concluded that though the said witness has sought to support the case of the prosecution, in the absence of any independent witnesses, the official testimony of the said witness was not sufficient to support the case of the prosecution. Further, insofar as PW-5 is 13 concerned, a few lines are devoted to her testimony, to conclude that she did not know how many cardboard boxes were seized and she did not remember whether they were tied and wax seal affixed or she did not know how many persons had signed on the above said cardboard boxes. Thereafter, the evidence of PW-6, a Driver of Health Department is discussed and it is held that his evidence also would not support the case of the prosecution. PW-7 is also yet another driver whose evidence is also negated. PW-8, a Pharmacist who had tendered evidence in support of the prosecution has been trashed also on the ground that he did not remember the details of the seizure that had taken place.
It is in this fashion that the court below has proceeded to dissect the evidence of the several witnesses in negating their evidence and finally concluding that for all the above reasons, the case of the prosecution was not made out and has proceeded to acquit the accused.
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It is significant to notice that after having found, with reference to the testimony of each witness, there is no summing up of the case and there is no reasoning addressing the several aspects of the case and as to how it is held that the prosecution has failed to prove its case. This was necessary, for otherwise, the present exercise as carried out by the Court is the only manner in which one is to ascertain the manner in which the court has proceeded to arrive at its conclusions. This is not a welcome manner in dealing with a serious case which could mean the life and death of consumers of the drugs which were sought to be passed off. Hence, it is necessary that from the material that is available on record, the Trial Court re-hear the parties, re-examine the material and pass an appropriate judgment affording clear reasons one way or the other. Though this exercise is also possible by this Court, it is more appropriate if there is a finding by the Trial Court, so that the opportunity of appeal is not taken away to the accused, if there is to be an adverse finding. Consequently, the interests of 15 justice would demand that the mater is remanded for a fresh hearing and disposal on the basis of the evidence that is already available on record.
Since the second of these appeals Crl.A.652/2012 is also directed against a judgment which suffers from the same infirmities as is evident from a plain reading of the same, which the learned counsel for the accused would not seriously dispute, the respective appeals are allowed. The judgments of the courts below are set-aside. The matters are remanded for a fresh consideration in terms as above. The accused shall appear before the court and seek appropriate interim reliefs, if they are so inclined, during the pendency of the matter, on such remand. The appeals are accordingly disposed of.
Sd/-
JUDGE KS