Karnataka High Court
B Radhakrishna vs The State Of Karnataka on 22 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL NO. 851/2016
BETWEEN:
B. RADHAKRISHNA S/O LATE D. ACHAR,
OCC: PROPRIETOR & COMPETENT PERSON
OF M/S V.R.K. ENTERPRISES, R/O D. NO. 6,
WARD NO. 6, OPP. TO VETERINARY
HOSPITAL, KALAMMA STREET,
BALLARI- 583 218.
- APPELLANT
(BY SRI ANWAR BASHA, ADVOCATE FOR
SRI J. BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
DRUGS INSPECTOR, REPRESENTED
BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
- RESPONDENT
(BY SRI PRAVEEN K UPPAR, GOVT. PLEADER)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED
26.04.2016 AND SENTENCE DATED 28.04.2016 PASSED
BY THE PRL. DISTRICT & SESSIONS CUM SPECIAL
JUDGE, BALLARI, IN S.C. NO. 110/2012, CONVICTING THE
ACCUSED FOR THE OFFENCES PUNISHABLE U/S 18(1),
22(1)(CCA), 18(A)(VI) R/W RULE 65(17) AND 18
PUNISHABLE U/S 22(3), 27(d) AND 28 OF THE DRUGS AND
COSMETICS ACT, 1940 & ETC.
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THIS CRIMINAL APPEAL COMING UP FOR FINAL
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This Criminal Appeal is filed by the appellant under Section 374(2) of Cr.P.C. against the judgment passed by the learned Principal District & Sessions Judge Cum Special Judge at Ballari in Special Case No. 110/2012 dated 26.04.2016 convicting the accused for the offences punishable u/S 18A, 22(1)(cca), 18(a)(vi) r/w Rule 65(17) and (18) punishable with Sections 22(3), 27(d) and 28 of the Drugs and Cosmetics Act, 1940.
2. As the submissions were not made in respect of the case from the side of the appellant, I have heard the arguments made by the learned Govt. Pleader for the respondent-State.
3. Upon the private complaint filed by the complainant H.M. Renuka Swamy, a case was registered against the appellant-accused for the offences stated above, wherein the complainant stated that, at :3: the instance of the Drugs Inspector, Ballari circle, Ballari, he filed a complaint before the Principal District & Sessions Judge, Ballari, details of which are as under:
That on 21.04.2011, P.W.1-G.P. Ravi Prasad, the then Assistant Drugs Controller, Ballari, had received a phone call from S.P. Lokayuktha, Ballari, that in the shop situated in front of Veteinary Hospital, Ballari, the wholesale distributor has stored and selling the Government supplied medicines, which are not meant for sale and expired date medicines. PW1 immediately secured panchas, i.e., PW4 K. Sandesh and PW5 B.Basavaraj, near Mothi Circle, Ballari, and disclosed the information received by him and visited the medical shop run by the accused-appellant herein, in the name and style-M/s V.R.K. Enterprises, Door No. 6, Opposite to Veterinary Hospital, Kalamma Street, Ballari, searched the shop and found 31 bottles of Raksha Ovac Trivalent foot and mouth disease vaccine, I.P. Vet Batch No. FOT 360/2009, date of manufacture April 2009 and date of expiry March 2011, manufactured by M/s :4: Indian Immunologicals Ltd., owned by subsidiary of the National Dairy Development Board, Hyderabad, and a label was fixed on the bottles "Government supply not for sale". Another bottle of same nature bearing Batch No. 358/2009; date of manufacture is March 2009; date of expiry February 2011 and manufactured by same company and label was fixed on the bottle "Government supply not for sale". All the 32 bottles were found in a refrigerator kept in the shop. On enquiry, accused did not give any reply. Thereafter, he was issued notice dated 21.06.2011 calling for explanation, later complaint was lodged u/S 200 Cr.P.C. Interim report was submitted by C.W.2-Raviprasad to the Government of Karnataka. Complainant addressed a letter to the Deputy Director, Department of Animal Husbandry, Veterinary Sciences, Ballari, seeking distribution details of the medicines. Report was submitted by the Deputy Director stating that medicines were wholly owned Subsidiary of the NDDB, Rakshapura, Hyderabad. It was not supplied to their office. Then the investigation :5: part is completed and thus there were ample proof to establish by means of documentary evidence and materials that the accused committed offences punishable under the aforesaid Act.
4. In order to establish its case, the prosecution examined witnesses as per PWs.1 to 5 and got marked documents as per Exs.P.1 to 13(a) apart from marking MOs 1 to 32. Learned trial Judge found the accused guilty for the offences alleged against him.
5. Learned Govt. Pleader appearing for the respondent-State would submit that, no explanation was given on the date of inspection/ raid. Explanation was given later stating that the medicines that were seized from the premises of the accused, did not belong to the shop of the accused and on the other hand, some customers have kept them.
6. It is necessary to mention here that a Druggist, Pharmacist or Chemist in medical shops keep the medicines for selling and not for purchasing it or to act :6: as bailees within the meaning of Contract Act, 1872. Thus, by virtue of the reply given by the accused, it is necessary to observe that, the mahazar witnesses PWs.4 and 5 have not supported the case of the prosecution and in so far as the reply is concerned, notice issued by the complainant is marked as Ex.P.4.
Reply is sent in Kannada language vide Ex.P.12 wherein the accused states that drugs and medicines were kept in his shop because of lack of refrigerator facilities with the customers and hence the accused had accommodated.
7. PW1-G.P. Raviprasad deposed in respect of the raid and complaint. He deposed with regard to seizing of date barred medicines and also the medicines provided by the Government which are "not for sale". On 23.04.2011 he sent an interim report to the State Drug controller. He further deposed regarding seizure of material objects. He was cross examined by the defence counsel.
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8. P.W.2-A.M. Sanofer Jan is the Drugs Inspector (Intelligence), Regional DDC Office at the relevant point of time. He has conducted investigation in part.
9. P.W.3-H.M. Renuka Swamy is the Asst. Drug Inspector at the relevant point of time. He has also conducted the investigation. He was also cross- examined.
10. It reveals on perusal of the case papers that, the complaint is lodged by a public servant u/S 200 Cr.P.C. by means of a private complaint before the competent Court of jurisdiction.
The points involve herein are very few and simple. The raid/ inspection was conducted by C.W.1 on the basis of a credible information.
It is necessary to note that the information was regarding selling of date barred and unauthorized medicines.
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He found bottle of Raksha Ovac Trivalent foot and mouth disease Vaccine I.P. Vet Batch No. FOT 358/2009, date of manufacture March 2009 and date of expiry February 2011 manufactured by M/s Indian Immunologicals Ltd wholly owned subsidiary of the National Dairy Development board, Hyderabad-32. These two category of life saving drug to animals, particularly of cattle were stored in the premises of the accused after the medicines turned out to be invalid for consumption. In the first limb, the date was barred for the medicines and free samples were also kept there. The medicines stated above are life saving drugs for cattle for foot and mouth disease and it is a life threatening and dangerous disease wherein the disease would affect from one animal to another animal and spreads rapidly and within no time the cattle shed would become empty. The medicines are said to be costly.
11. Learned Govt. Pleader would submit that, the events happened prove themselves that the accused :9: persons committed the offences. It is necessary to note that the time barred medicines would be of no avail more particularly they are supposed to be preserved in cool temperature in the refrigerators.
Damage done to farm people are one, out dated medicine which will not have effect on the disease to restore the cattle and the second one is that, medicine which was supposed to be given to the people who maintain cattle and depend on dairy farm. These aspects are said to be thrown to air by the accused.
12. Another point to be placed on record is, the medicines that were supplied free of costs, were prepared by the subsidiary to the Company stated above, in turn, it is elementary prudence to note that such free samples are nothing but the supply by the Government straight away to veterinary dispensaries with a hope that they would reach the poor farmers, ailing cattle and other animals more particularly to cure the disease of foot and mouth.
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13. Here it is necessary to analyze the medicines that are not amenable for sale, are of two kinds, one is the medical representative when they visit various Doctors would be offering free supply which is also called as "sample not for sale". Incidentally, they are given to the Doctors along with other complimentary gifts that would be "free sample" and "not for sale". The second category is "Government supply not for sale". Here, when the medicines are released from the factory of the subsidiary supplying to the customers is one part and supplying to the Government Hospital is totally different which are basically meant for free supply.
In this connection, the blunder or lapse are grouped for bad reasons and the complainant has cleverly chosen in not enquiring or to take action against the persons who gave those medicines to the accused.
14. In this connection, without the medicines are channelized in unholy myth. In this connection, the : 11 : holder is caught supplier has to be booked but it is surprising how the Drug Inspector are deliberately let of. Thus, it is left to the wisdom of the complainant or the concerned authorities to look into the issue.
15. The accused persons are not illiterate and were given sufficient opportunity by the complainant, but the accused have short of defence.
16. The learned trial Judge found that the accused is guilty of the offences alleged and thus convicted for the offences alleged. On overall reappreciation of the facts and materials, I do not find any infirmity, irregularity, illegality or bias in the impugned judgment. The appeal is devoid of merit and is liable to be dismissed. Accordingly, it is dismissed.
Office to send the records to the trial Court forthwith.
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Learned trial Judge shall secure the appellant herein-accused under proper warrant for further legal formalities.
Sd/-
JUDGE bvv