Bangalore District Court
/ Chandmal Jain vs S/O.Late Bayachand on 10 March, 2020
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 10 th day of March, 2020
PRESENT :-
SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.550/2013
Appellant / Chandmal Jain
Accused: S/o.Late Bayachand
Aged about 50 years
Proprietor
M/s.Nakoda Medicals & General
Stores, Manjunath Nagara,
Bengaluru.
(By Sri.V.M., Adv.)
V/s.
Respondent / The Drugs Inspector
Complainant: Bengaluru Circle I,
Bengaluru.
Respondent by Public Prosecutor
Bengaluru
JUDGMENT
This is an appeal preferred against the judgment passed in C.C. No.838/2000 by Presiding Officer, Special Court for Economic Offences, Bengaluru wherein the learned Presiding Officer, Special court has convicted the accused for an offence punishable under Section 27(d), 28 and 28-A of Drugs and 2 Crl.A. No.550/2013 Cosmetics Act, 1940 and passed a sentence for imprisonment as well as fine.
2. To avoid confusion, the parties are referred to as complainant and accused as per their ranks in the Court below.
3. The prosecution case before the trial court is that the accused No.1 being the proprietor of M/s.Nakoda Medicals & General Stores situated at No.243, 1st Main, 3rd Stage, Manjunathanagara, Bengaluru and when PW-1 who is the Inspector appointed as Circle Inspector of Bangalore and under Section 21 of the Drugs and Cosmetics Act the accused was running a medical shop by virtue of the license granted on 15.04.1989 which was renewed up to 31.12.2000. Accused No.2 is the registered pharmacist and qualified person who was looking after the day today drugs business and retail sale.
On 04.01.2000, complainant in his routine inspection visited the accused shop premises and noticed the products which are mentioned in the list were sold though they are physician sample not to be sold and the said products were supplied to ESI and not for the sale. Accordingly, form No.15 was raised by issuing the prohibitory order which was extended from time to time till 18.03.2000. On 04.04.2000 when the complainant visited along with his colleagues who are the drug inspectors revoked form No.15 and issued a notice to disclose the sources of acquisition and to furnish 3 Crl.A. No.550/2013 necessary documents like purchase orders, invoices under Section 18A and 18B respectively and inspite of notice the accused has not produced the said purchase order or other materials to establish the fact of purchase. The registered notice issued on 12.04.2000 was not delivered and accordingly on 11.05.2000, the notice was served on Accused No.1 by obtaining acknowledgment and since the accused No.1 not complied the demand of notice and not produced any material for purchase of the objected drugs, there upon he seized articles by drawing panchanama in the presence of witnesses who were accompanied the inspector and after obtaining the permission from the competent authority, he has filed the case and alleged that the objected drugs were supplied for supply to ESI and not for sale and by possessing the same in the shop the accused No.1 has committed the offence alleged against him. Hence, the complaint was filed.
4. Inorder to prove the case of the prosecution, the prosecution has got examined PW-1 to 5 and got marked documents at Ex.P.1 to Ex.P.39 and MOs-1 to 21 were marked. On behalf of the accused, no witnesses were examined and no defence evidence has been adduced.
5. After hearing the arguments of learned Public Prosecutor and the appellant counsel, the learned Presiding Officer, Special Court for Economic Offences, Bengaluru has convicted the accused for the alleged offences and imposed sentence.
4Crl.A. No.550/2013
6. Challenging this judgment and conviction, the appeal is preferred and urged on the ground that though the inspector visited on 04.01.2000 as per inspection report Ex.P.2, it does not bear the signature neither of the appellant nor the person Anoopkumar who is running the shop on the said date. Therefore, Ex.P.7 is a concocted one and though it has been stated by the inspector that on 04.01.2000, he noticed the drugs, but why he kept quite for a period of three months till 04.40.2000 is not explained by the Inspector which is fatal to the prosecution case. Further, it is also contended that the learned Presiding Officer, Special Court for Economic Offences, Bengaluru has not at all considered the cross-examination portion of PW-1 where in he has clearly admitted that he has not made any identification mark or seizer on the products found by him and the seizer of MO-1 to 21 by PW-1 creates suspicion in the mind of the Court without considering that aspect the conviction and the sentence order is passed by the learned Trial Judge which is highly erroneous. Further, it is also contended that PW-2 and 3 who are the seizer officials with PW-1 have specifically stated that in Ex.P.5 they have not made any endorsement as to the visit and also inspection and even they have also not made any endorsement on MO-1 to 21, without appreciating these facts, the conviction order is passed. Hence, liable to be set aside.
7. To corroborate the evidence of PW-1 to 5 no independent witnesses have been examined only the official 5 Crl.A. No.550/2013 witnesses were examined and that is not sufficient for conviction of the accused. Hence, the conviction order is bad in law. Though according to PW-4 evidence, MO-8, 9, 13 were supplied to ESI drugs stores under stock register and he specifically states that he does not know how did it came into the possession of the accused shop that is completely ignored by the learned Trail Judge and even according to PW-4 these materials will be in the store of ESI as per evidence of PW-4. Such being the case the question of considering the fact of accused in possession of the Mos does not arise at all and by ignoring all these facts conviction order is passed. Hence, it is liable to be set aside by allowing the appeal by interference of this Court.
8. I have heard the arguments of learned appellant counsel and learned Public Prosecutor on the appeal filed before the court.
9. Now, inview of the grounds urged in the memorandum of appeal and the arguments canvassed by the learned appellant counsel, now the following points arose for consideration before this court are as follows;
i. Whether the prosecution proves that on 04.40.2000, the accused who is the proprietor of the medical store was in possession of the medicines by contravening provision of Drugs and Cosmetic Act whether they are aware of the fact the products were supplied for distribution from the ESI Center and 6 Crl.A. No.550/2013 there by committed the offence punishable under section 27(d), 28 and 28A of Drugs and Cosmetics Act, 1940?
ii. Whether the appellant has made ourt a ground to interfere with the judgment passed by the trial court?
iii. What Order?
10. My answers to the above points and inveiw of the evidence adduced by the prosecution and arguments canvassed by the accused counsel and by learned Public Prosecutor is as follows for the below mentioned reasons:
Point No.i : In the affirmative;
Point No.ii : In the Negative, Point No.iii : As per the final order for the following:
R E A S ON S
11. Point No.i:- Now, it is the case of the prosecution that the accused being the proprietor of the M/s.Nakoda Medicals and General Stores, situated at Manjunatha Nagara, Bengaluru was in possession of the objected drugs which are not suppose to be in possession of the accused at the shop since these objected drugs were supplied for ESI Distribution and it was not for sale. According to the prosecution case when the drug inspector PW-1 who is an authorized person to inspect the drug and medical shop when he visited first time on 04.01.2000, to the shop premises he came to know that the 7 Crl.A. No.550/2013 accused was possession those objected drugs which are prohibited for sale in the shop and after coming to know the possession of the drugs he raised prohibitory order on the very same day and from time to time a prohibotory order was extended till 04.04.2000.
12. On 04.04.2000 the prohibitory order was raised and thereafter along with the other officials of the department raided the shop and seized the materials and conducted mahazar and a notice was issued to the accused to produced the purchase order or invoices for purchase of those medicines from the proper person and to establish the lawful possession of the objected drugs in the shop premises. But when no reply has been sent and no purchase order or invoice are produced the complainant obtained the permission from the competent authority and filed this case and upon enquiry and by examining PW1- to 5 and document got marked Ex.P.1 to Ex.P.39 and MO-1 to 21, the trial court has held that the prosecution has established the case and convicted the accused for the offences punishable under Section 27(d), 28 and 28A of Drugs and Cosmetics Act, 1940.
13. Now, the learned counsel for the accused has contended in his argument that though total five witnesses were examined to prove the guilt of the accused, no independent witnesses have been examined to prove the seizer of the articles through mahazar was drawn and only the official witnesses have been examined. Though Ex.P.7 has been raised 8 Crl.A. No.550/2013 under form No.15 as a prohibitory order no signature of the owner of the shop has been obtained. Though PW-1 has came to knowledge of the objected drugs in the shop premises that was not seized for a period of three months which clearly creates doubt with regard to the seizer of the articles and by this act of PW-1 it is not established that the same drugs was seized from the shop premises and it is specifically admitted in the coruse of cross-examination that no independent witness signature has been obtained for mahazar will certainly establishes the non drawing of mahazar at the spot and PW-4 in his evidence has specifically admitted that they have not obtained the signature to MO-1 to 21 and no endorsement has been made on MO-1 to 21 and also specifically admits that there is no specific identification slip on the cotton box of the objected drugs seized by PW-1 which clearly contravenes the case of the prosecution and which certainly establishes a doubt with regard to the prosecution case and that benefit of doubt would be given to the accused and the accused is liable to be acquitted for the said offences according to the learned appellant counsel.
14. The learned Public Prosecutor has specifically contended that in her argument that the witnesses have been examined before the court PW1- to 5 have unequivocally stated that the objected drugs were in the custody of the accused and found in the shop premises of the accused and also insptie of issue of notice to produce the purchase order or invoice for substantiating the purchase made by the accused, no steps 9 Crl.A. No.550/2013 have been taken by the accused. In such a circumstances, the prosecution version has to be believed and the learned judge has rightly held that the prosecution has proved the quilt of the accused and rightly convicted the accused for the said offences. Hence, she prayed for dismissal of the appeal.
15. Now, in view of the rival contention of both the parties and the arguments submitted by the learned Public Prosecutor and the appellant counsel this court has to analyze and re- appreciate the evidence of the prosecution and the documents produced by the prosecution and independently this court has to consider whether the prosecution has proved the guilt of the accused with respect to the offence.
16. Now, it has to be specifically noted that PW-1 to 5 are the competent officials of the Drugs and Cosmetic Department to visit the shop of the accused and found that the objected drugs were in the premises of the accused shop. Admittedly, PW-1 is the authorized drug inspector to visit the drug and medical shop and also authorized to search for the objected materials and also he is authorized to take action for such objected drugs in the shop premises. PW-1 after noticing the fact of the objected drug in the shop, he raised prohibitory orders as Ex.P.8 to Ex.P.12 and though according to the appellant counsel for which the signature of the accused is not obtained, but in Ex.P.12 there is an endorsement to the effect that the copy of the form No.15 has been received by the accused which is marked as Ex.P.12(b) and while receiving the 10 Crl.A. No.550/2013 prohibitory order, PW-1 has issued Ex.P.13 for which also the accused has affixed his signature as Ex.P.13(b). No where in the cross-examination the accused counsel has specifically denied these aspects about affixing signature on Ex.P.12 and Ex.P.13. In the same way Ex.P.14 also issued to the accused in Rule 55 and 145B of the Drugs and Cosmetic Act wherein the objected drugs which were found in the shop premises are specifically mentioned and it is also stated that the following drugs are having a label as 'Physician sample not be sold' and this document Ex.P.14 is also received by the accused by putting signature as Ex.P.14(b).
17. The learned counsel appearing for the appellant has contended in his argument that the panchanama has been not singed by any independent witnesses. Hence, the panchanama has not been successfully proved before the court. But it is well established principle of law and by catena of decision, the Hon'ble Apex Court has specifically held that merely because the interest witnesses have been examined their evidence cannot be brushed aside only on that ground, if their evidence has inspired confidence with the court, then the court can consider such evidence to consider the guilt of the accused. More particularly it is to be noted that in Ex.P.15 the signature of the accused also finds a place. If really there was no drawing of panchanama then the question of getting signature of the accused to that document would not have been arise at all. Under these circumstances, the arguments of the learned appellant counsel stating that since no independent witnesses 11 Crl.A. No.550/2013 have been examined not obtained signature to the mahazar is not no consequence and it hold no water.
18. Further, it is to be specifically noted according to Ex.P.20, a letter was issued by ESI department along with the list of the materials supplied as Ex.P.22 and Ex.P.23 & 24 is drugs which have been mentioned in the form No.15 & and Ex.P.12 finds place and it is specifically stated in Ex.P.21 with Ex.P.3 and 4 articles mentioned in in the list of other drugs have been supplied to the ESI Department and by this document it is successfully established that the objected drugs were supplied to ESI to supply to its units and not for sale. Now, when the prosecution is successfully established through the convincing evidence when such objected drugs were in the shop premises which are supplied only for distribution of ESI units, now the burden shifts on the accused to prove that those medicines were not belonging to the ESI units but it was purchased by way of lawful document. Further, in Ex.P.25, the notice was also issued to the accused calling upon to produce the purchase order or invoices which establishes the purchases made by the accused with respect to the objected drugs. But that notice returned as not claimed. Later on 12.04.2000 a copy of the notice or latter has been served on the accused as per Ex.P.27(a) on 04.05.2000 and on 11.05.2000 also a reminder was also issued to the accused to explain the circumstances of possessing of those objected products in contravention of Drugs and Cosmetic Act. But for all these notices and reminders no reply has been sent. If really the 12 Crl.A. No.550/2013 accused was in possession of the purchase order and invoices, he could have produced those documents and explained the circumstances in which he came in possession of those objected drugs when such attempt has not been made or when no attempt has been made by the accused to establish those facts, the question of considering the fact that accused has not committed the offence punishable under the said act is of no consequence and by considering over all these evidence and in particular the documentary evidence with respect to the existence of objected drugs in the shop and non explanation of accused with respect to the possession of those goods though an opportunity was provided for the accused to explain, in my opinion the prosecution has successfully established the contravention of the act and also successfully established the commission of the offence alleged against them. Hence, I have no hesitation to answer Point No.1 in the affirmative.
19. Point No.ii:- Now, as already discussed in detail in point No.1 this court has specifically come to the conclusion that the prosecution before the trial court has successfully established the contravention of the Drugs and Cosmetics Act and the accused has miserably failed to explain the circumstances under which the objected materials has come to the shop of the accused and the learned Presiding officer, Special Court for Economic Offences, Bengaluru has analyzed the evidence of all the witnesses and the contention taken by the accused counsel in the course of argument and also come to a proper conclusion with respect to the offences 13 Crl.A. No.550/2013 alleged against the accused. Now by analyzing the evidence adduced before the trial court, this court has also come to the conclusion has established the guilt of the accused.
20. When such being the case the question of interference with respect to the trial court does not arise at all. The question of interference with the trial court arises only when the appellate court comes to a different conclusion if it differs with the opinion of the trial court when it has committed any error and come to a wrong conclusion by not appreciating in a proper manner of the facts and circumstances and law narrated before the trial court and interference is called only when the grounds urged in the appeal has been successfully established by the appellant before the appellate court but where as in this case though the appellant counsel has urged number of grounds and argued in support of his ground, he has miserably failed to establish the grounds urged successfully before this court when grounds urged are not established before the court the question of interference by the appellate court is uncalled for and the question of interference by the appellate court does not arise at all. Hence, I have no hesitation to answer point No.2 in the negative.
21. Point No.vi:- Inview of above reasons, I proceed to pass the following:-
14Crl.A. No.550/2013 OR D E R The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby dismissed as no merits.
Consequently, the judgment passed by the Special Court for Economic offences in C.C. No.838/2000 dated 17.09.2013 is hereby confirmed.
Send back the LCR with the copy of this judgment to the Court below forthwith. (Dictated to the stenographer on the computer, corrected and then pronounced by me in the open Court on this the 10 th day of March, 2020).
(SRI.S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore City.15
Crl.A. No.550/2013 10.03.2020 App-VM Res-PP Judgment pronounced in the Open Court (vide separate order) O R DE R The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby dismissed as no merits.
Consequently, the judgment passed by the Special Court for Economic offences in C.C. No.838/2000 dated 17.09.2013 is hereby confirmed.
Send back the LCR with the copy of this judgment to the Court below forthwith.
LXI Addl. City Civil & Sessions Judge, Bengaluru City.
16 Crl.A. No.550/2013