Allahabad High Court
Babbu vs State Of U.P. on 7 October, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R Court No. - 91 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29346 of 2020 Applicant :- Babbu Opposite Party :- State of U.P. Counsel for Applicant :- Shiv Bahadur Singh,Rajendra Singh Counsel for Opposite Party :- G.A. Hon'ble Gautam Chowdhary,J.
Heard Sri Shiv Bahadur Singh, learned counsel for the applicant, Sri Nafis Ahmad, Sri Devendra Kumar Singh, Sri Sanjay Kumar Yadav, learned A.G.A. for the State and perused the material brought on record.
The present bail application has been filed on behalf of the applicant Babbu with a prayer to release him on bail in Case Crime No. 122 of 2020, under Sections 274, 275, 420 IPC and section 18(a)(i) and section 27 of Drugs and Cosmetics Act, 1940, Police Station- Chandauli, District Chandauli during pendency of trial.
The contention of learned counsel for the applicant is that no offence under sections 274, 275, 420 IPC, section 18(a)(i) and 27 of Drugs and Cosmetic Act, 1940 is made out against the applicant. Further submission advanced by learned counsel for the applicant is that two bags containing the blood have been recovered from the diggy of the motorcycle, the same was neither sent for the chemical examination nor the bar code of the blood was scanned by the police. Lastly argued that the applicant is innocent and has falsely been implicated in this case as there is no evidence to show that the applicant had any shop or he was a distributing agent or he was going to sell it, hence section 27 of the Act would not be attracted. The applicant is in jail since 4.7.2020.
Learned counsel for the applicant has also placed reliance upon the judgment given by the Apex Court in Mohd. Shabir Vs. State of Maharashtra reported in 1979 AIR 564, 1979 SCR (2) 997 in which it has been held as under :-
"Mr. U. P. Singh appearing in support of the appeal has raised a short point before us. He has submitted that taking the prosecution case at its face value, no offence can be said to have been committed under section 27 (a) (i) or (ii) of the Act. It was submitted that the ingredients required by section 27 have not been proved in this case and therefore, even if, the accused pleaded guilty, that will not enable the prosecution to convict him on his plea of guilty. Section 18 (c) runs thus :
"manufacture for sale, or sell, or stock or exhibit 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."
Section 27 is the penal section under which the offence is punishable and this section runs thus:
"Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes-(a) any drug-
(i) deemed to be misbranded under clause (a), clause (b), clause (e), clause (d), clause
(f) or clause (g) of section 17 or adulterated under section 17B; or
(ii) without a valid licence as required under clause (c) of section 18."
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine; Provided that the Court may, for any special reasons to be recorded in writing impose a sentence of imprisonment of less than one year;"
It was contended by Mr. Singh that in order to fall within the, ambit of this section the accused must manufacture the drugs for sale or stock or exhibit for sale or distribute the same. There is no evidence in this case to show that the appellant had any shop or that he was a distributing agent. All that has been shown is that the tablets concerned were recovered from his possession. It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of section 27 of the Act. On an interpretation of section 27, it seems to us that the arguments of Mr. Singh is well founded and must prevail. The words used in section 27, namely, "manufacture for sale", sells, have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale". Thus the section postulate three separate categories of cases and no other. (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, section 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The inter pretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of section 27. We, therefore, hold that before a person can be liable for prosecution or conviction under section 27 (a) (i) (ii) read with section 18 (c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant.
As regards the second charge, it seems to us that the case of the appellant is clearly covered by the language contained in section 18A read with section 28. Section 18A runs thus:
"Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the same, address and other particulars of the person from whom he acquired the drug or cosmetic."
Section 28 which makes no disclosure of 18A punishable reads thus:
"Whoever contravenes the provisions of section 18A shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both."
Considering the facts, circumstances of the case, submission made by learned counsel for the applicant, learned A.G.A. and from perusal of the material available on record, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short-term bail comes to an end.
5. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
6. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
7. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 7.10.2020 RPD