Karnataka High Court
Ravikumar vs The State Of Karnataka on 18 July, 2023
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CRL.RP No. 879 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 879 OF 2019
BETWEEN:
RAVIKUMAR
S/O LATE MANJAYYA POOJARY
AGED ABOUT 49 YEARS
R/O ESHWARA KRUPS
NEAR POST OFFICE, BASRUR VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201.
...PETITIONER
(BY SRI. P.B. UMESH FOR
R.B.DESHPANDE, ADVOCATES)
AND:
THE STATE OF KARNATAKA
BY ASSISTANT DRUG CONTROLLER
UDUPI CIRCLE, UDUPI - 576 101.
(REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS, BENGALURU - 560 001.)
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 28-03-2012 PASSED BY
THE ADDL.CIVIL JUDGE AND JMFC AT KUNDAPUR IN
C.C.NO.1833/2004 CONFIRMED BY THE JUDGMENT AND
ORDER DATED 15-05-2019 PASSED BY THE ADDL. DISTRICT
AND SESSIONS JUDGE, UDUPI(SITTING AT KUNDAPURA)
KUNDAPURA IN CRL.A.NO.29/2013 (CONVICTED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 27(b)(ii) AND
SECTION 28 OF DRUGS AND COSMETIC ACT AND ETC.,
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CRL.RP No. 879 of 2019
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 13.06.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 28.03.2012 in C.C.No.1833/ 2004 on the file of Additional Civil Judge and JMFC at Kundapura and its confirmation judgment and order dated 15.05.2019 in Crl.A.No.29/2013 on the file of Additional District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura, wherein the Trial Court convicted the accused/petitioner for the offences punishable under Section 27(b)(ii) of Drugs and Cosmetic Act, 1940 (for short 'Act') and sentenced him to undergo simple imprisonment for a period of 15 days years and also convicted for the offence punishable under Section 28 of the Act and sentenced to undergo simple imprisonment for a term of 15 days. The same is confirmed by the Appellate Court.
2. The petitioner is the accused before the Trial Court and appellant before the Appellate Court. -3- CRL.RP No. 879 of 2019
Brief facts of the case:
3. It is the case of the prosecution that, on 07.08.2003, on credible information, the complainant and his team conducted raid at Ashwathi Clinic, Chakramma Kodi, Kodi Kundapura Taluk. The complainant and his team found that there are some allopathic drugs including salable packs drugs, physician samples and drugs which are labeled as Central Government supply, not for sale. The accused failed to furnish the purchase invoice of the drugs which were in his possession at the time of inspection and the accused without possessing the valid drug license required to be obtained under the provisions of the Act was selling the said drugs which is in contravention of the provisions under Sections 18(c) and 18(a) of the Act. A case came to be registered against the petitioner. The Trial Court took cognizance and criminal case was registered against the petitioner and convicted him for the said offences. The Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court.
4. Heard Sri.P.B.Umesh, learned counsel appearing on behalf of Sri.R.B.Deshpande, learned counsel for the petitioner -4- CRL.RP No. 879 of 2019 and Sri.Rahul Rai.K, learned High Court Government Pleader for the respondent - State.
5. It is the submission of the learned counsel for the petitioner that, as per the averments of the complaint, the provisions of the Act will not be attracted or otherwise the ingredients of the provisions do not attract on the averments made in the complaint. In the absence of specific and appropriate provision, conviction cannot be passed against the petitioner. Making such submission, the learned counsel prays to set aside the concurrent findings of the Courts below.
6. Per contra, the learned High Court Government Pleader (for short 'HCGP') for the respondent justified the concurrent findings recorded by the Courts below and submits that, the petitioner was running the clinic, but he did not possess suitable qualification to run the clinic and the drugs which he possessed in his clinic was salable in nature for which, he had no license. The said seizure of the drugs have been proved and corroborated by the evidence of PW.3 and all the witnesses have supported the case of the prosecution about the clinic which was being run by the petitioner. The prosecution proved the case beyond all reasonable doubt and the Courts -5- CRL.RP No. 879 of 2019 below convicted the petitioner under Sections 27(b)(ii) and 28 of the Act for having violated the provisions under Sections 18(c) and 18(a) of the Act. As such, the learned HCGP prays to dismiss the petition.
7. Having heard the learned counsel for the respective parties, it is relevant to refer to the said provisions of Sections 27(b)(ii) and 28 along with Section 18(c) and 18(a) of the Act, which reads thus:
"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.--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 distributes, --
(b) any drug -
(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 three year but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more]:
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees];
28. Penalty for non-disclosure of the name of the manufacturer, etc.--Whoever contravenes the -6- CRL.RP No. 879 of 2019 provisions of section 18A [or section 24] shall be punishable with imprisonment for a term which may extend to one year, or [with fine which shall not be less than twenty thousand rupees or with both.]
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--
(c) [manufacture for sale or for distribution, or sell, or 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:
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.
(a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale] or distribute--
[(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
[(ii) any cosmetic which is not of a standard quality or is misbranded or spurious;] -7- CRL.RP No. 879 of 2019 [(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 4 [to prevent, cure or mitigate] any such disease or ailment, or 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;]"
8. On careful reading of the said provision, it appears that to constitute an offence, the petitioner should have either sold the drug by taking prescriptions or the drugs, which he intends to sell should have been prohibited by the Authority. In absence of these two requirements, the conviction in respect of above said provisions cannot be sustained. The Courts below failed to appreciate the ingredients of the provisions of the Act and convicted the petitioner, which is erroneous and unsustainable. Hence, the same is required to be set aside. -8- CRL.RP No. 879 of 2019
9. In the light of the observation made above, I proceed to pass the following:
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 28.03.2012 passed in
C.C.No.1833/2004 by the Additional Civil Judge and JMFC at Kundapura and judgment and order dated 15.05.2019 passed in Crl.A. No.29/2013 by the Additional District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura, are set aside.
(iii) The petitioner is acquitted for the offences punishable under Sections 27(b)(ii) and 28 of Drugs and Cosmetic Act, 1940.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE UN