Patna High Court
Sunil Poddar vs The State Of Bihar on 22 February, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.479 of 2018
Arising Out of PS. Case No.-464 Year-2013 Thana- BARAUNI District- Begusarai
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Sunil Poddar Son of Late Ram Baran Poddar, Resident of Village- Pahsara,
Police Station- Naokothi, District- Begusarai.
... ... Petitioner/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Shashank Shekhar, Adv.
For the Respondent/s : Mrs. Asha Kumari, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 22-02-2024
The instant revision is directed against the
judgment and order dated 15.07.2017, passed by the learned
District & Sessions Judge, Begusarai in Criminal Appeal No.
108 of 2016, whereby and where under the judgment and order
dated 28.10.2016, passed by the learned Chief Judicial
Magistrate, Begusarai in Trial No. 648 of 2016, arising out of
Barauni (Refinery O.P.) P.S. Case No. 464 of 2013 dated
15.09.2013, corresponding to G.R. No. 3903 of 2013, convicting the petitioner for the offence punishable under Sections 420, 467, 468 and 472 of the I.P.C. read with Sections 33E/ 33-I and 33EEC/ 33-I of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act of 1940') and sentencing him to undergo rigorous imprisonment for 7 years with fine of Rs. 10,000/- for the charges punishable under Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 2/9 Sections 420, 467, 468 and 472 of the I.P.C. and further sentenced him to undergo rigorous imprisonment for one year with a fine of Rs. 20,000/- for the charges under Sections 33E/ 33-I and 33EEC/ 33-I of the Act of 1940 and in default of payment of fine, further rigorous imprisonment for 1 ½ months as well as rigorous imprisonment for 3 months for default in payment of fine of Rs. 20,000/-. The Appellate Court's order is under challenge in the instant revision.
2. The case of the petitioner in brief is that one Ashok Kumar Dubey, the Drug Inspector (Ayu.), Patna received a secret information on 14.09.2012 to the effect that ayurvedic medicines and other drugs and cosmetics were being manufactured at Deona Industrial Area, Begusarai by some persons without any valid license under the said Act.
3. After receiving the said information, the said Ashok Kumar Dubey informed the matter to Neeraj Hirday, Drug Inspector, Begusarai to work out the said information and to verify as to whether ayurvedic drugs and other ayurvedic articles were being manufactured at the place as informed by PW-1. After getting the said information, Neeraj Hirday rushed to the site and found that some manufacturing work was going on under the name and style of 'Life Care' situated in a building Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 3/9 opposite to the main gate of Deona Industrial Area within Police Station, Barauni in the District of Begusarai. He conducted a raid in the said manufacturing center, however, nobody could produce any license or authority of such manufacturing work at the spot. The Drug Inspector, Neeraj Hirday found that certain products in the name of 'facewash' were being manufactured and those products were immediately seized by him under a seizure list.
4. Further case of the prosecution that on 15.09.2013, Ashok Kumar Dubey visited the spot and in presence of two independent witnesses, namely, Pawan Kumar Rai and Pankaj Kumar conducted raid and seized all materials, labelled and unlabelled products, raw materials, a packing machine, apparatus and instruments for manufacturing and sealing the said drugs, etc. under the proper seizure list. At the time of seizure, one Shrawan Kumar was found present in the said manufacturing unit. He disclosed himself as a caretaker- cum-cleaner of the said manufacturing unit. On being asked, Shrawan Kumar claimed that one Amrendra Kumar let out the building to accused Sunil Poddar (petitioner), who is running the said manufacturing unit under the name and style of 'Life Care' and he manufactures certain ayurvedic articles and drugs. Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 4/9 The owner of the said manufacturing unit, namely, Sunil Poddar (petitioner) was not present at the spot. After completion of seizure and all other formalities at the spot, Ashok Kumar Dubey filed a complaint case in the local police station on the basis of which Barauni (Refinery O.P.) P.S. Case No. 464 of 2013 dated 15.09.2013 was registered against the petitioner under Sections 420, 467, 468 and 472 of the I.P.C. read with Sections 33E/ 33-I and 33EEC/ 33-I of the Act of 1940. The police conducted investigation of the case and submitted charge- sheet against the accused. The accused duly faced trial. During trial, the prosecution examined 4 witnesses. Amongst them, PW- 1, Ashok Kumar Dubey is a complainant, PW-2, Neeraj Hirday is a Drug Inspector, who was informed by Ashok Kumar Dubey to conduct a search and seizure on 14.09.2013. PW-3 is the then S.H.O. of Barauni Police Station, who registered the case and PW-4 is the Investigating Officer of the case.
5. It is pertinent to mention at the outset that allegation under the Act of 1940 against the petitioner or the primary allegations if the charge under the aforesaid penal provision contained in the Act of 1940 is found to be proved, the Court will consider the charge under the I.P.C. against the petitioner.
Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 5/9
6. I have already said that the accused was convicted under Sections 33E/ 33-I and 33EEC/ 33-I of the Act of 1940.
7. Section 33E of the Act of 1940 describes misbranded drugs. The section runs thus:-
"33E. Misbranded drugs.--For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be misbranded--
(a) if it is so coloured, coated, powdered or polished that damage is concealed, or if it is made to appear of better or greater therapeutic value than it really is; or
(b) if it is not labelled in the prescribed manner; or
(c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular."
8. Section 33EEC of the Act of 1940 prohibits manufacture and sale of certain Ayurvedic, Siddha and Unani drugs. The provision runs thus:-
"33EEC. Prohibition of manufacture and sale of certain Ayurvedic, Siddha and Unani drugs.--From such date as the State Government may, by notification in the Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 6/9 Official Gazette, specify in this behalf, no person, either by himself or by any other person on his behalf, shall--
(a) manufacture for sale or for distribution
--
(i) any misbranded, adulterated or spurious Ayurvedic, Siddha or Unani drug;
(ii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true list of all the ingredients contained in it; and
(iii) any Ayurvedic, Siddha or Unani drug in contravention of any of the provisions of this Chapter or any rule made thereunder;
(b) sell, stock or exhibit or offer for sale or distribute any Ayurvedic, Siddha or Unani drug which has been manufactured in contravention of any of the provisions of this Act, or any rule made thereunder,
(c) manufacture for sale or for distribution, any Ayurvedic, Siddha or Unani drug except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter by the prescribed authority :
Provided that nothing in this section shall Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 7/9 apply to Vaidyas and Hakims who manufacture Ayurvedic, Siddha or Unani drug for the use of their own patients :
Provided further that nothing in this section shall apply to the manufacture, subject to the prescribed conditions, of small quantities of any Ayurvedic, Siddha or Unani drug for the purpose of examination, test or analysis."
9. It is important to note that in order to prove a charge under Section 33E which happens to be the misbranded drugs, scientific examination of seized articles i.e. the drug itself is absolutely necessary. Without such scientific examination, it is not possible for the investigating agency as well as for the Court to consider, as to whether the material was so coloured, coated, powdered or polished that damage is concealed or that sale and using of the said product causes damage to the customers. No such scientific examination has been held by the prosecution at the time of investigation. The prosecution has also failed to produce the official notification issued by the State Government specifying in this behalf that no person either by himself or by any other person on behalf shall manufacture sale or distribute any misbranded, adulterated or spurious Ayurvedic, Siddha or Unani drugs. Without such expert report, this Court fails to consider as to how the Trial Court and the First Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 8/9 Appellate Court considered the sealed drugs as misbranded and spurious drugs for which the petitioner was liable to be punished under Section 33-I of the Act of 1940. Therefore, I have no other alternative but to hold that during trial, prosecution failed to produce any scientific examination report with regard to the seized articles and for non-production of such expert report, the Court cannot hold that the seized drugs were misbranded, damaged or spurious. The Appellate Court has committed the same wrong on the basis of the oral evidence, the accused was convicted. However, a Drug Inspector, who seized the property, being the Drug Inspector cannot say that the seized drugs were misbranded or damaging for the customers, if the said drugs were sold to the market. When prosecution failed to establish charge under Sections 33E and 33EEC, charge under the general law of I.P.C. cannot be said to be proved.
10. For the reasons stated above, I have no other alternative but to hold that both the Courts below failed to appreciate that only on the basis of the evidence of departmental witnesses, a case of misbranded drug under the Act of 1940 cannot be proved. For the reasons stated above, the instant revision is allowed.
11. The judgment of conviction and order of Patna High Court CR. REV. No.479 of 2018 dt.22-02-2024 9/9 sentence dated 28.10.2016 passed by the learned Chief Judicial Magistrate, Begusarai in Trial No. 648 of 2016, arising out of Barauni (Refinery O.P.) P.S. Case No. 464 of 2013, corresponding to G.R. No. 3903 of 2013 and affirmed by the First Court of Appeal in Criminal Appeal No. 108 of 2016 by the learned District & Sessions Judge, Begusarai is hereby quashed and set aside.
12. The petitioner be released from bail bond at once.
13. Let a copy of this order be sent to the learned Court below for information and compliance along with the Lower Court's Record.
(Bibek Chaudhuri, J.) sadique/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 28.02.2024 Transmission Date NA