Delhi District Court
A.P. Singh (Di) vs . Hari Chand Goel & Anr. on 26 July, 2011
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
A.P. Singh (DI) Vs. Hari Chand Goel & Anr.
CC No. 35/4.
U/s. 18 (a) (i) r/w section 27 (d)
and U/s. 18 (c) r/w 27 (b) (ii) of
Drugs & Cosmetics Act, 1940
PS DBG Road, Delhi.
JUDGMENT
a) The sl. no. of the case : 35/4.
b) The Unique ID No. of the case : 02404R0003881988.
c) The date of commission of the : 21/08/1985.
offence
d) The date of institution of case : 02/08/1988.
e) The name of the complainant : Sh. A.P Singh,
Drug Inspector.
f) The name & address of accused : 1) Hari Chand Goel S/o
Sh. Ram Mehar, Proprietor
M/s. Goel Store, Shop 4210,
Budh Nagar, Tri Nagar, Delhi
: 2) Ram Kumar S/o
Sh. Arjun Singh, Proprietor
M/s. Kalyan Laboratories,
Village Kutail, Karnal,
Haryana.
CC No. 35/4
PS DBG Road
g) The offence complained of : U/s. 18 (a) (i) r/w section 27
(d) and U/s. 18 (c) r/w 27 (b)
(ii) ofDrugs & Cosmetics Act,
1940.
h) The plea of the accused : pleaded not guilty.
i) The date of reserving the order : 04/07/2011.
j) The final order : Accused Hari Chand Goel
convicted.
Accused Ram Kumar
acquitted
k) The date of such order : 26/07/2011..
THE BRIEF REASONS FOR THE JUDGMENT :
1. Brief resume of facts of the case are that on 21/08/1985 at about 11:30 AM, DI A.P. Singh inspected the premises of M/s. Goel Stores, Budh Nagar, Tri Nagar, Delhi, where its proprietor i.e. accused Hari Chand Goel was found stocking and exhibiting for sale and distribution 36 bottles of drug Ashoka Liquid Extract IP of 225ml each in his shop. Upon verification, it was discovered that the accused had stocked and exhibited the said drug for sale without holding the requisite licence. Upon investigation, it was further discovered through the report of Govt. Analyst that the drug seized from the CC No. 35/4 PS DBG Road premises of the accused was not of standard quality. The accused disclosed that he had purchased the drug Ashoka Liquid Extract IP, of Batch No. 36 from M/s. Sangam Traders, Sarai Pipalthala, Azadpur, Delhi vide cash memo No. 29 dated 19/08/1985. Upon investigation, DI A.P. Singh reached the conclusion that the accused had not purchased the said drug from M/s. Sangam Traders.
The labels on the seized bottles mentioned that they were manufactured by M/s. Kalyan Laboratories, Village Kutail, Karnal, Haryana. On 18/04/1988, complainant DI A.P. Singh inspected the premises of M/s Kalyan Laboratories at Karnal, which was found already closed. The premises was inspected in the presence of its proprietor i.e. accused Ram Kumar. The drug seized from accused Hari Chand Goel was shown to accused Ram Kumar, who replied that he had not manufactured the said drug. He produced the copies of testing and sales records of M/s. Kalyan Laboratories regarding the said drug but could not produce the control/reference samples of the drug. Thus, accused Ram Kumar was found violating Rule 74 (l) of Drugs and Cosmetics Rules, 1945 by not maintaining the reference samples from each batch of the drugs manufactured by him. CC No. 35/4 PS DBG Road
2. The complaint was filed against the accused persons U/s. 18 (a) (i) and 18 (c) r/w section 27 (d) and 27 (b) (ii) of Drugs and Cosmetics Act, 1940. As the complaint was filed by the concerned DI in capacity of a public servant, the court observed that there was no need to examine him U/s. 200 CrPC and vide order dated 02/08/1988, the court had summoned the accused persons. On appearance of accused persons, the complete set of copies of the case were supplied to them.
3. The complainant DI A.P Singh had examined himself in precharge evidence as CW.1 on 06/01/1997 and 06/10/1997. He examined Mr. Yashwant Aggarwal (inadvertently typed as Jaswant Aggarwal), proprietor of M/s Sangam Traders, whose testimony was recorded, inadvertently, as CW4, instead of as CW2. Thereafter, the precharge evidence was closed by the court on 12/10/1998.
4. After hearing arguments on charge, charge was framed on 26/08/2002 against the accused Hari Chand Goel and accused Ram Kumar for trial of offences U/s. 18(a) (i)/27 (d) of Drugs & Cosmetics Act, 1940 (against accused Hari CC No. 35/4 PS DBG Road Chand Goel for stocking and exhibiting for sale the drug which was not of standard quality, whereas, against accused Ram Kumar for manufacturing for sale the drug which was not of standard quality). Accused Hari Chand Goel was additionally charged U/s. 18 (c) / 27 (b) (ii) of the Act by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
5. After framing of charge, the complainant DI A.P Singh adopted his pre charge testimony, given as CW.1. He was crossexamined by the counsels for accused persons during the post charge evidence on 16/12/2002 and on 03/02/2003. CW2 Yashwant Aggarwal was also cross examined by the defence counsels for accused Ram Kumar, whereafter, his cross examination by accused Hari Chand Goel was deferred for the next date. CW2 did not appear again in the court to complete his testimony. The complainant had examined CW.3 Dinesh Kumar, Sample Carrier, Drugs Control Department and CW5 DI Ranbir Singh who had accompanied the complainant/CW1 DI A.P. Singh to the shop of the accused Hari Chand Goel for inspection. CW.4 Deo Nath Shah is the Dealing Assistant in the licencing branch of Drugs Control Department, Govt. of NCT, Delhi. CW4 produced the licence record CC No. 35/4 PS DBG Road (Ex. CW4/A) of M/s. Goel Stores of accused Hari Chand Goel and deposed that M/s Goel Stores did not have any permission to deal in the drug Ashoka Liquid Extract.
6. Statement of accused persons was recorded separately U/s. 313 CrPC, wherein they pleaded innocence and false implication in this case. They wished to lead D.E. but, despite opportunity, they did not examine any witness in support their defence.
7. I have heard arguments from Ld. Defence Counsel for accused persons and from complainant DI A.P. Singh and have also gone through the evidence and documents on record carefully.
8. To prove the offences U/s. 18 (a) (i) r/w section 27 (d) and U/s. 18 (c) r/w 27
(b) (ii) of Drugs & Cosmetics Act, 1940, it was incumbent upon the complainant DI to prove that accused Hari Chand Goel was found stocking and exhibiting for sale and distribution the stock of drug Ashoka Liquid Extract IP, without holding the requisite licence and that the seized drug was CC No. 35/4 PS DBG Road not of standard quality, whereas, accused Ram Kumar manufactured for sale the drug which was not of standard quality.
9. CW1 deposed that he inspected the premises of the accused Hari Chand Goel along with other witnesses i.e. CW3 Dinesh Kumar and CW5 DI Ranbir Singh. He deposed about discovering that accused was stocking and exhibiting for sale 36 bottles of drug Ashoka Liquid Extract IP without licence. He deposed that although the accused was holding the licence No. 9 (886) 20A & 21A, the copies of which Ex. CW1/A and Ex. CW1/B, the terms of the licence did not include the drug Ashoka Liquid Extract, implying that accused was not licenced to stock and sell the said drug. In the presence of CW3 and CW5, DI A.P. Singh took the sample of drug Ashoka Liquid Extract and sealed it and prepared form No. 17 Ex. CW1/C. He tendered Rs. 34/ in cash to the accused as cost of the sample. Accused issued the cash receipt Ex. CW1/D to DI A.P. Singh. Remaining stock of the said drug was seized by DI A.P. Singh vide form No. 16 Ex. CW1/E. DI A.P. Singh issued memo Ex. CW1/F to accused Hari Chand Goel, requiring him to disclose the name and address of the persons from whom he had acquired the said drug. CC No. 35/4 PS DBG Road CW3 Dinesh Kumar and CW5 DI Ranbir Singh have corroborated the testimony of CW1 DI A.P. Singh regarding the inspection of the premises of accused Hari Chand Goel on 21/08/1985 and regarding the preparation of documents Ex. CW1/A to Ex. CW1/F, out of which the documents Ex. CW1/C, Ex. CW1/E and Ex. CW1/F were signed by them at the spot.
The permission granted by Ld. CMM to DI A.P. Singh to retain the seized drug in his possession, is Ex. CW1/G. DI A.P. Singh sent the sealed sample to Govt. Analyst for testing alongwith copy of memo in form No. 18, Ex. CW1/H. The report of Govt. Analyst declaring the sample as not of standard quality, is Ex. CW1/J. The letter of intimation of the report of Govt. Analyst to accused Hari Chand Goel, is Ex. CW1/K. The written submission of accused Hari Chand Goel that he purchased the impugned drug from M/s. Sangam Traders vide cash memo No. 29 dated 19/08/1985, is Ex. CW1/L; the copy of cash memo No. 29 is Ex. CW1/M. The reply of CW2 Yashwant Aggarwal, proprietor of M/s Sangam Traders, that he did not sell the impugned drug of batch No. 36 to M/s. Goel Stores, is Ex. CW1/P. CW1 deposed that on 23/01/1987 he personally visited the firm M/s. Sangam CC No. 35/4 PS DBG Road Traders and checked their sale records and upon checking the carbon copy of cash memo No. 29 dated 19/08/1985, he found that batch No. 36 was not mentioned on the carbon copy available with M/s Sangam Traders, whereas, batch No. 36 was mentioned on the copy of cash memo No. 29 dated 19/08/1985, submitted to him by accused Hari Chand Goel, implying that the accused had later interpolated the cash memo No. 29 dated 19/08/1985 to create the false impression that he purchased the drug Ashoka Liquid Extract of "Batch No. 36" from M/s. Sangam Traders, although, the originally issued cash memo did not mention "Batch No. 36" in front of sold drug Ashoka Liquid Extract. In this regard, M/s Sangam Traders also issued the letter dated 27/01/1997, Ex. CW1/Q to DI A.P. Singh. The carbon copy of cash memo No. 29 submitted by M/s Sangam Traders to DI A.P. Singh is Ex. CW1/R. CW1 deposed that on 08/03/1988, he visited the premises of M/s. Kalyan Laboratories, Village Kutail, but the same was found closed. He again visited the same premises on 18/04/1988 and had shown the sealed portion of seized sample of Ashoka Liquid Extract to accused Ram Kumar, who informed in writing through letter Ex. CW1/S that the said drug was not his product. He deposed that accused Ram Kumar failed to produce the CC No. 35/4 PS DBG Road control sample of Ashoka Liquid Extract, Batch No. 36 as required under Drugs and Cosmetics Rules, 1945.
CW1 DI A.P. Singh produced the sealed sample bottle of Ashoka Liquid Extract, Ex. P1. He also produced 32 bottles of seized Ashoka Liquid Extract, Ex. P2/1 to Ex. P2/32.
10. It is the admitted case of the complainant that M/s. Kalyan Laboratories was already closed and was not manufacturing any drug when he visited it. The complainant also deposed that he did not find any manufactured drug at the premises of M/s Kalyan Laboratories. Accused Ram Kumar, proprietor of M/s. Kalyan Laboratories had denied to have sold the drug Ashoka Liquid Extract IP to M/s. Sangam Traders or to M/s. Goel Stores. Moreover, CW1 DI A.P. Singh had admitted in cross examination that he inculpated accused Ram Kumar because the labels on the drug Ashoka Liquid Extract, seized from the premises of accused Hari Chand Goel mentioned the name of manufacturer as M/s Kalyan Laboratories, and because accused Ram Kumar could not show the control/reference sample of the drug Ashoka Liquid CC No. 35/4 PS DBG Road Extract, manufactured by it. The deposition of CW1 DI A.P. Singh reveals that he did not care to check the manufacturing and sale record of M/s. Kalyan Laboratories to find out if it had manufactured and sold the drug Ashoka Liquid Extract IP of Batch No. 36 to anyone.
Merely because the labels of the seized drug carry the name of a certain person or company as its manufacturer, does not automatically lead to the conclusion that the drug was manufactured by it unless the said person or company was either found manufacturing the said drug or its manufacturing and / or sale records reveal that it manufactured and / or sold the said drug to purchasers. The evidence of the complainant that the accused Ram Kumar, proprietor of M/s. Kalyan Laboratories had manufactured the drug Ashoka Liquid Extract of batch No. 36, is grossly deficient and do not connect accused Ram Kumar with the seized drug Ashoka Liquid Extract IP, batch No. 36. In fact, except for the letters Ex. CW1/S and Ex. CW1/T, allegedly written by accused Ram Kumar to DI A.P. Singh, no evidence has been led by the complainant to the effect that accused Ram Kumar was the proprietor of M/s. Kalyan Laboratories. The natural conclusion is that the accused Ram CC No. 35/4 PS DBG Road Kumar is acquitted of the offence of manufacturing a not of standard quality drug.
11. The complainant has led the cogent and unimpeachable evidence that on 21/08/1985 accused Hari Chand Goel, proprietor of M/s Goel Stores was found stocking and exhibiting for sale 36 bottles of drug Ashoka Liquid Extract IP, batch No. 36, without holding licence for the same.
Accused Hari Chand Goel has taken the plea U/s. 19 (3) of Drugs and Cosmetics Act, 1940 that he should not be held guilty for stocking and exhibiting for sale a drug, which was found to be not of standard quality because he was only the trader of the seized drug and he had acquired the drug from its licenced distributor / dealer i.e. M/s. Sangam Traders and that, he could not have with reasonable diligence, ascertained that the drug Ashoka Liquid Extract was not of standard quality. He pleaded that the seized drug Ashoka Liquid Extract, while in his possession, was properly stored and remained in the same state as when he acquired it i.e. it remained in sealed condition.
CC No. 35/4 PS DBG Road To this plea, complainant DI A.P. Singh argued that this accused is not entitled to the benefit of section 19 (3) of the Act, as he was already violating the condition of licencing before stocking and exhibiting the seized drug for sale.
Indeed, the benefit of section 19 (3) of the Act is available to only that person who has not violated any provision of section 18 of the Act, in addition to observing all the precautions mentioned in section 19 (3) of the Act. Accused Hari Chand Goel has already violated the condition related to obtaining the requisite licence before stocking and exhibiting the seized drug for sale. Hence, accused Hari Chand Goel is not found entitled to the benefit of section 19 (3) of the Act. An accused who has not taken care to obtain requisite licence before stocking and exhibiting a drug for sale cannot be heard taking the plea that he stored the drugs in the same condition and had no mens rea to sell the drugs which are not of standard quality. Accused Hari Chand Goel is adjudged guilty of the offence of stocking and exhibiting for sale the drug Ashoka Liquid Extract IP, which was not of standard quality. CC No. 35/4 PS DBG Road
12. Hence, in view of the above observation and discussion and the evidence on record, in my opinion, the present case has successfully been proved against the accused Hari Chand Goel beyond all shadows of reasonable doubt that he was found stocking and exhibiting for sale and distribution the stock of drug Ashoka Liquid Extract IP without having the requisite licence and the said drug was not of standard quality. Thus, I hereby hold the accused Hari Chand Goel guilty for the offences U/s. 18 (a) (i) and 18 (c) r/w section 27 (d) and 27 (b) (ii) of Drugs and Cosmetics Act, 1940 and convict him accordingly. Order on sentence shall be announced after hearing the accused. Accused Ram Kumar is acquitted of the offence he has been charged with. He is on bail. His bail bond is cancelled and his surety is discharged.
ANNOUNCED IN THE OPEN
COURT ON 26/07/2011. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 + 1) Delhi
CC No. 35/4
PS DBG Road
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
A.P. Singh (DI) Vs. Hari Chand Goel & Anr.
CC No. 35/4.
U/s. 18 (a) (i) r/w section 27 (d)
and U/s. 18 (c) r/w 27 (b) (ii) of
Drugs & Cosmetics Act, 1940
PS DBG Road, Delhi.
ORDER ON SENTENCE
Present: DI Balram Sahu on behalf of complainant DI A.P. Singh.
Accused/convict Hari Chand Goel on bail with Counsel. I have heard arguments on the point of sentence from Ld. Defence Counsel for accused Hari Chand Goel. It is stated that accused is facing trial for the last 23 years. It is further stated that there is no record of any previous conviction against him. It is further stated that accused is a heart patient and is undergoing regular treatment. The accused is stated to be aged around 62 years now. It is prayed that the accused may be released on probation by this court.
It may be that there is no record of previous conviction against the accused and he is facing trial since 1988, but the accused was apprehended while stocking and exhibiting for sale and distribution of drug Ashoka Liquid Extract IP without holding any drugs licence, and the drug seized from the CC No. 35/4 PS DBG Road accused was not of standard quality. The offence committed by the accused Hari Chand Goel had grave repercussion on the health of the consumers who were using it believing it to be a good quality product. Keeping in view the facts of the case, in my opinion, it is not a fit case where probation may be granted to the accused. I hereby sentence the accused for a period of two years rigorous imprisonment for the offence U/s. 18 (c) r/w section 27 (b) (ii) of D & C Act, 1940 and further to pay a fine of Rs. 10,000/ i.d. to undergo 6 months simple imprisonment. The accused is sentenced for a period of two years rigorous imprisonment for the offence U/s. 18 (a) (i) /27 (d) of D & C Act, 1940 and further to pay a fine of Rs. 10,000/ i.d. to undergo 6 months simple imprisonment. Both the sentences shall run concurrently and benefit of section 428 Cr.P.C be given to the convict and any previous imprisonment suffered by him in this case shall be set off against the substantive period of imprisonment awarded to him. File be consigned to Record Room.
Copy of Judgment and order on sentence be provided to the convict free of cost.
ANNOUNCED IN THE OPEN
COURT ON 08/08/2011. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 +1) Delhi
CC No. 35/4
PS DBG Road