Bangalore District Court
Amruthlal vs The Drugs Inspector on 14 February, 2022
KABC010248182016
Presented on : 22-10-2016
Registered on : 22-10-2016
Decided on : 14.02.2022
Duration : 5 years 3 months 23 days
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS JUDGE;
BANGALORE CITY
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 14th day of February, 2022
CRL.A.No.1224/2016
PETITIONER/S :- AMRUTHLAL
Major,
R/at No.122, Ground Flooor, 70th Cross,
5th Block, Rajajianagar,
Bengaluru.
(By Sri. MG., Advocate)
V/s.
RESPONDENT/S:- THE DRUGS INSPECTOR
Bengaluru Circle-1, Bengaluru.
(Rep. by learned Public Prosecutor)
JUDGMENT
This appeal is filed by the appellant/accused under Section 374 of Cr.P.C., seeking to set aside the judgment and order dated 2 Crl.A.No.1224/2016 23.09.2016 passed by the Special Economic Offences, Bengaluru, in CC.No.1210/2014.
2. The appellant is the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The brief facts of the case are as follows:-
On 14.07.2003 on crediable information that Sri. J. Amritlal is manufacturing, stocking and selling huge quality of drugs without valid licenses at No.122, 70th Cross, Rajajianagar, Bengaluru. The complainant along with Sri.N.Vadivelu, Assistant Drugs Controller, Circle-1, Bengaluru, Sri.Sunil A.Patil, Sri.Shankar Jyothi, Drugs Inspector of Circle-1, Bengaluru and Sri.Narayanareddy, Drugs Inspector of Circle-2, Bengaluru and two pancha witnesses visited the above said address, on search they found huge quantity of drugs i.e., Pottasium Permanganate I.P. b) Boric Acid I.P., c) Vaseline (White Petroleum Jelly I.P., d) Clove Oil I.P., which are labeled as manufactured by M/s. Sandeep Pharma Pvt. Ltd., Dr. Annie Besant Road, Worli, Mumbai, e) Raw materials, packing materials, Machinery, labels used for the manufacture of the said drugs and documents on raw material etc., on enquiry the accused is informed that he had manufactured/ repacked, stocked for sale and sold the above said drugs to different dealers situated in Bengaluru i.e., 1) Manu Pharma,
2) Pharma Link, 3) Rajendra Sales Coporation, 4) Subline Drug & 5) Rajesh Pharma, without possessing a valid drugs licence. In this regard, the accused gave statement.
4. The complainant had sampled 6 drugs under Form No.17, for test and analysis and then seized the available stock of drugs raw 3 Crl.A.No.1224/2016 materials, packing materials, machinery, labels used for the manufacture and documents on raw materials under Form No.16 and panchanama dated 14.07.2003 and kept in safe custody obtaining permission of the court. The complainant has submitted the said 6 sampled drugs drawn for test and analysis to the Government Analyst, Karnataka under Form No.18 dated 15.07.2003 as per the provisions of the Act. All the drugs were analyzed and 3 were declared as standard quality and 3 were passed the test conducted. On 25.07.2003 and 26.07.2003 the complainant along with Sri.Narayanareddy, Drugs Inspector, Circle-2, Bengaluru visited M/s. Mahalaxmi Agencies, Bengaluru and enquired with Sri. Mohanlal Prajapat, Proprietor of M/s. Mahalaxmi Agencies, Bengaluru and Sri. Muparam Boranna, Proprietor of M/s. Mahalaxmi Pharma, Bengaluru got confirmation about the purchase and sale of drugs from accused and recorded the statements. On 29.07.2003, the complainant personally served notice under Section 18A of the Act, to the accused calling him to disclose the source of acquisition of the drugs and returned the documents seized on 14.07.2003 to the accused after taking certified copies.
5. On 05.08.2003, the accused replied to the notice under Section 18A of the Act, stating that no purchase invoices are available. On 21.08.2003 Sri.Shankar Jyothi, Drugs Inspector, Circle-1, Bengaluru during the investigation at M/s. Adhinatha Medicals & General Stores, No.172, Shivaji Road, Shivajinagar, Bengaluru under Form No.16 and mahazar seized the drugs 1) 11x20 grams of Boric Acid I.P., labeled as B.No.666, D/M:1/02, mfd., in the name of M/s. Sandeep Pharma Pvt. Ltd., Dr. Annie Besant Road, Worli, Mumbai, b) 1x100 grams of Boric Acid I.P., labeled as B.No.673, D/M:10/2, mfd., in 4 Crl.A.No.1224/2016 the name of M/s. Sandeep Pharma Pvt. Ltd., Dr. Annie Besant Road, Worli, Mumbai and c) 1x400 grams of Boric Acid I.P., labeled as B.No.MS070311, D/M:7/03, mfd., in the name of M/s. Sandeep Pharma Pvt., Ltd., Dr. Annie Besant Road, Worli, Mumbai which were manufactured and supplied by accused and the same were seized under Form No.16 and from the premises of M/s. Adhinatha Medicals. On 28.08.2003 he received the reply from the proprietor of M/s. Adhinatha Medicals, Bengaluru to the notice served by him on 23.08.2003 along with the purchase invoices bearing No.B25039 dated 13.08.2003, 110433 dated 27.02.2003, No.638 dated 19.07.2003, No.5184 dated 26.09.2002, No.22754 dated 23.06.2003. On 30.08.2003 he received a statement letter from Sri. Premraj, Proprietor of M/s. Pravesh Pharma, No.125, 2nd Floor, Sulthanpet, Bengaluru.
6. On 10.09.2003, the complainant has taken a statement from Smt. Manjula, who is the landlord of building bearing No.122, 70 th Cross, 5th Block, Rajajianagar, Bengaluru. On 10.09.2003 the complainant along with Sri.Narayanareddy, Drugs Inspector, Circle-2, Bengaluru visited M/s. Manu Pharma, Bengaluru and enquired with Sri.K.N.Udaykumar, Proprietor of M/s. Manu Pharma, Bengaluru about the purchase and sale of Boric Acid & Postassium Permanganate from accused and recorded a statement. On 10.09.2003 they visited M/s. Rajesh Pharmaceuticals, Bengaluru and enquired with Rajesh, Proprietor of M/s. Rajesh Pharmaceuticals, Bengaluru about the purchase and sale of drugs from accused and received a statement along with purchase invoices bearing No.8007 dated 08.02.2003, No.6833 dated 03.07.2001, No.7583 dated 06.07.2002, No.7491 dated 20.05.2002, No.7921 dated 25.12.2002, No.7769 dated 09.10.2002, 5 Crl.A.No.1224/2016 No.7839 dated 14.11.2002, No.7779 dated 14.10.2002, No.7787 dated 18.10.2002, No.7795 dated 22.10.2002.
7. On 19.09.2003, the complainant received a statement from Sri.Premraj, Proprietor of M/s. Pravesh Pharma, Bengaluru with copies of purchase invoices, bearing No.7702 dated 24.09.2002 in connection to the sale of drugs to M/s. Adhinatha Medicals & General Stores, Bengaluru.
8. On 13.10.2002 Sri.Shankar Jyothi, received a statement from Sri. Hansraj, Proprietor of M/s. Adhinatha Medicals & General Stores, Bengaluru. On 29.11.2003, 18.11.2003, 10.09.2003 and 08.01.2004 the complainant received the test reports from the Drugs Testing Laboratory, Bengaluru for the drugs which was sampled under Form No.17 dated 14.07.2003 from the premises of accused. On 24.03.2004 the complainant visited M/s. Raj Lubricants (Madras) Ltd., Chennai, enquired and taken statement as to the supply of raw materials to accused. Futher, the complainant received letter from the Joint Commissioner, Food & Drugs Administration, Mumbai through the Drugs Controller for the State of Karnataka stating that the firm M/s. Sandeep Pharma Pvt., Ltd., do not exist in Mumbai with licence.
9. On 30.03.2004 the complainant received a letter from Sri.Vadively, Assistant Drugs Controller, Circle & licensing authority for confirming that the following firms do not hold a valid licenses i.e., a) M/s. J.J. Daga & Co., Bengaluru, b) M/s. Anand Chemical Works, Bengaluru and c) M/s. Syndicate Pharma, Bengaluru. Further, complainant Sri.C.Kumar, Drugs Inspector, Circle-1 received the documents from Shankar Jyothi, Drugs Inspector, Circle-1 connected 6 Crl.A.No.1224/2016 to the investigation on seizure of drugs from M/s. Adhinatha Medicals & General Stores, Bengaluru. On 05.04.2004 the complainant has taken a statement letter from the Manager of Karnataka Bank Ltd., City Market, Bengaluru for clearance of cheques issued by M/s. Manu Pharma, Bengaluru. Further, he has taken a statement letter from the Manager of City Union Bank Ltd., Sulthanpet, Bengaluru for confirming the accused having a current account bearing No.1957 in the name of M/s. J.J. Daga & Co., Malleshwaram, Bengaluru and current account No.3147 in the name of M/s. Anand Chemicals, Malleshwaram, Bengaluru, the complainant has personally delivered all the 6 test reports to accused under acknowledgment. The complainant has taken a statement letter from accused confirming that he is the sole proprietor of M/s. J.J. Daga & Co., Malleshwaram, Bengaluru and also repacking the drugs by him in the name of M/s. Sandeep Pharma, Mumbai. On 06.04.2004 the complainant has taken a statement from the Manager of Tamilnadu Mercentile Bank Ltd., Bengaluru for the clearance of cheques issued by M/s. Pravesh Pharma, Bengaluru. Hence, on 15.07.2003, 22.03.2004 and 08.04.2004 the complainant submitted his report to the Drugs Controller for the State of Karnataka, Bengaluru about his investigation vide letter No.DCD/ADCA/BNG- 1/266/2000-01, dated 06.10.2000 and sought permission to prosecute against the said accused person.
10. The Drugs Controller for State of Karnataka, Bengaluru vide letter No.DCD/90/LIP/2003-04, dated 11.05.2004 gave permission to initiate prosecution, as such the complainant has filed this complaint against accused for contravention of Section 18(a)(i) r/w 17B(c), Section 18(c) & Section 18A which are punishable under Section 27(c), 27(b)(ii) and 28 of the Drugs & Cosmetic Act, 1940 and hence, 7 Crl.A.No.1224/2016 the complaint is filed. With these grounds prays to punish the accused for the offences said above. On received the complaint, cognizance taken, registered the case, secured accused, enlarged on bail. Copies of the complaint and other documents were furnished to him. After hearing both sides, the evidence before charge was framed against the accused for the offences punishable under Section 27(c), 27(b)(ii) and 28 of the Drugs & Cosmetic Act, 1940, wherein he has pleaded not guilty and claimed to be tried. Hence, the matter was posted for complainant's evidence where the complainant has examined as many as 13 witnesses i.e., PW1 to PW13 and got marked Ex.P1 to 109 and Mos.1 to 53 and closed their evidence. PW1 to 13 have been cross- examined by the accused counsel. On completion of prosecution evidence, the matter was posted for recording the statement of accused under Section 313 of Cr.P.C., where accused has denied incriminatory evidence read over and explained to him in the language known to him and submitted that he has got no evidence and nothing to say, he did not choose to lead any defense evidence, hence the matter was posted for arguments. After hearing the argument of both sides, the Special Economic Offence court, convicted the accused for the offences punishable under Section 18(a)(i) r/w 17B(c), Section 18(c) & Section 18A punishable under Section 27(c), 27(b)(ii) and 28 of the Drugs & Cosmetic Act. Being aggrieved by the judgment of conviction, the present appeal is filed.
11. After presentation of the appeal, initially the sentence imposed by the trial court was suspended. Thereafter, after securing the records, the case was posted for argument. The case was pending since 2016. The appellant argument was not addressed. Several opportunities were given to the appellant, however the same 8 Crl.A.No.1224/2016 was not utilized by the appellant. Lastly, the case was posted for hearing. Hence, in order to prevent further delay the matter and after hearing the learned Public Prosecutor, I proceed to post the appeal for judgment.
12. Now the points that arise for my consideration.-
1. Whether the impugned judgment of conviction is illegal and erroneous?
2. Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and sentence?
3. What Order?
13. My findings on the above points are.-
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per the final order
for the following
REASONS
14. Points No.1 & 2:- Since these two points are
interconnected with each other, for the sake of convenience, I have taken these points together for discussion and answer.
15. The present appeal is filed on the following grounds.-
1) The trial court has committed grave error in law in taking cognizance of the offence.
2) The trial court has erred in law in accepting and acting upon the evidence of PW1 to PW13 which is being inadmissible.
3) The trial court has erred in passing an erroneous judgment which is one sided and 9 Crl.A.No.1224/2016 the same is absolutely inadmissible in the eye of law.
4) The evidence taken by the trial court is manifestly erroneous and argument employed by the trial court for convicting the appellant utterly unsustainable in law.
5) The trial court has grossly erred in law in not providing opportunity to the appellant to lead the defense evidence.
6) PW1 has stated that 3 drugs were declared as standard quality and 3 drugs were passed the test conducted. Such being the fact, the commission of the offence by the appellant absolutely leads to strong suspicion.
7) PW1 has stated that he does not remember whether drugs in the house and he does not remember specifically which drugs he has seized from the house and also admitted that no photographs were taken while seizure of mahazar.
8) The trial court has grossly erred in law and not observing the fact that PW2 during the evidence admitted that there is no residential houses and was not put the departmental designation and seal on the material object. The trial court has not considered the evidence of the witnesses.
Therefore, the impugned judgment is illegal, incorrect and improper and has resulted in miscarriage of justice. With these grounds he has sought for setting aside the judgment.
16. A specific allegation against the accused is that the accused is said to be the Proprietor of Firms i.e., a) M/s. Sandeep 10 Crl.A.No.1224/2016 Pharma Pvt. Ltd., which has fictitious address Dr. Annie Besant Road, Worli, Mumbai in which the accused was said to manufacture spurious drugs, b) M/s. J.J. Daga & Co., No.21, 11th Cross, Malleshwaram, Bengaluru in which accused is said to be sold the spurious drugs, c) M/s. Syndicate Pharma, Bengaluru, No.122, 70th Cross, Rajajianagar, 5th Block, Bengaluru, in which accused said to be purchased the raw materials used for the manufacture of spurious drugs and d) M/s. Anand Chemical Works, Bengaluru and the persons in charge of day to day conduct of business of the firm by name M/s. Sandeep Pharma Pvt.. Ltd., Bengaluru.
17. To prove the case, the complainant has examined 13 witnesses as PW1 to PW13 and got marked the documents at Ex.P1 to Ex.P109. PW1-Sri. Kumar, ADC, Mandya District. The gist of the evidence is that on 14.07.2003 he complained to the Police Inspector, Magadi Road Police station, Bengaluru as per Ex.P4, which came to be registered in FIR No.0244. On 15.07.2003 he submitted 6 sampled drugs drawn for test and forwarded the same to the Government Analyst, Karnataka under Form-18, the drugs were analyzed as per provision of the Act, all the drugs were analyzed and 3 were declared as not of standard quality and 3 were declared as standard quality as per Ex.P7 to Ex.P12. Thereafter, he visited M/s. Mahalaxmi Agency, and enquired with Mr. Mohanlal Prajapet as to ascertain the purchase and sale of drugs from the accused and has recorded the statement. On 26.07.2003 he enquired with Mr. Muparam Boranna, about the purchase and sale of drugs from the accused and recorded his statement as per Ex.P14. On 29.07.2003 he personally served a notice under Section 18A to the accused as per Ex.P23. Thereafter, the statement of accused is also received from the accused. The 11 Crl.A.No.1224/2016 accused in his reply has stated that no purchase invoices are available. Further, he has also received letter from the Joint Commissioner, Food & Drug Administration, Mumbai through the Drugs Controller for the State of Karnataka stating that the firm by name M/s. Sandeep Pharma Pvt., Ltd., do not exist in Mumbai with licence and again licensing authority for confirming that the firms by name 1) M/s. J.J. Daga & Co., 2) M/s. Anand Chemical Works, and 3) M/s. Syndicate Pharma, the firms were not licensed and they are not existence. PW1 has examined at length. However, in the cross- examination also PW1 has stated that 3 drugs among 6 reported to be standard quality and remaining 3 reportd as not of standard quality.
18. A specific allegation against the accused is that the accused was selling the drugs, manufacturing spurious drugs and he was said to be a proprietor of M/s. Sandeep Pharma Pvt. Ltd., and M/s. J.J. Daga & Co., The complainant has received a letter from all the authorities regarding of existence of these pharmaceuticals firms, these authorities in clear terms and have stated that such firms is not available. As per Ex.P64 and Ex.P65 it is found that the company by name M/s. J.J. Daga & Co., is not in existence, it is fictitious company created by the accused, other firms such as M/s. Pravesh Pharma and M/s. Sandeep Pharma Pvt., Ltd., these are all the fictitious firms he has selling the drugs stated to have been purchased from these companies. The accused has made an attempt to produced invoices belonging to these firms. Based upon the said invoices the investigation was conducted in which it was brought to the light that these firms are fictitious. The act of the accused falls under definition of 18(a)(i) r/w 17B(c) of Cosmetic Act. All these are punishable under Section 27(c), 27(b)(ii) and 28 of the Drugs and Cosmetic Act.
12 Crl.A.No.1224/201619. Section 27(c) of Drugs & Cosmetic Act, reads as follows.- 'whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks, or exhibits or offers for sale or distributors.'- 'any drug deemed to be spurious under Section 17-B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees.
20. Further, Section 27(b)(ii) of the Act, reads as follows.- attracted when a person by himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks, or exhibits or offers for sale or distributors any drug, without a valid licence as required under clause (c) of Section 18.
21. Here in the present case the accused has failed to produce the proper documents with regard to licence and a proper document relating to establishment of these firms. There is a clear document to show that the firms run by the accused is fictitious firms. Under such circumstance, I hold that the trial court has observed the facts and circumstance of the case in a proper perspective and there is no error or illegality in the judgment passed by the trial court, the same does not call for any interference by this court.
22. So far as the grounds urged in the appeal memo are concerned they are not acceptable. The evidence of complainant's witnesses are appreciated at length. Though 3 of drug samples have been tested as standard quality the remaining drugs are not of standard quality. Further, the firms in whose name the drugs were sold are fictitious firms. So, under such circumstance it cannot be held that 13 Crl.A.No.1224/2016 the appellant has made out a ground to interfere with the judgment passed by the trial court. Accordingly, I answer points No.1 and 2 in the 'Negative.'
23. Point No.3:- In view of my findings on points No.1 and 2, I proceed to pass the following:-
ORDER The appeal filed by appellant/accused under Section 374 of Code of Criminal Procedure, is dismissed.
The impugned judgment and order passed by the Special Economic Offences, Bengaluru, in CC.No.1210/2014 dated 23.09.2016, is hereby confirmed.
Send a copy of this judgment to the trial court along with TCR forthwith.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 14th day of February, 2022) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru