Punjab-Haryana High Court
Gulshan Kumar vs State Of Punjab on 22 February, 2010
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl.Revision No.2365 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Revision No.2365 of 2002
Date of Decision:22.02.2010
Gulshan Kumar
.....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Argued by: Mr.Harpreet S.Rakhra, Advocate,
for the petitioner.
Mr.Ajaib Singh, Additional Advocate General, Punjab,
for the respondent-State.
****
MEHINDER SINGH SULLAR, J.
Having lost his legal battle in the courts below, petitioner- Gulshan Kumar son of Des Raj-convict (hereinafter to be referred as "the petitioner") has directed the present revision petition against the impugned judgment of conviction and order of sentence dated 16.05.2000, whereby the trial Magistrate has convicted and sentenced him on two counts, firstly; to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months, for the commission of offence punishable under Section 27(b)(ii) and secondly; to undergo rigorous imprisonment for a period of six months, for the commission of offence punishable under Section 28, of the Drugs and Cosmetics Act, 1940 (for brevity "the Act"). However, both the sentences were ordered to run concurrently. The petitioner has also challenged the impugned judgment dated 18.11.2002, vide which his appeal was dismissed by the lower appellate court.
2. The matrix of the facts culminating in the commencement, Crl.Revision No.2365 of 2002 2 relevant for disposal of the present revision petition, unfolded during the trial and emanating from the record, is that PW1, complainant-Ajay Singla, who was appointed as Drug Inspector by the State of Punjab vide Notification (Ex.PA) under Section 21 of the Act, instituted a complaint (Ex.PD) against the petitioner, for the commission of offence punishable under Sections 27(b)(ii) and 28 read with Sections 18-A and 18(c) of the Act. As per the complaint, PW1 received a secret information to the effect that the petitioner was indulging in illegal medical practice, without being registered medical practitioner, as defined under Rule 2(ee) of the Drugs and Cosmetics Rules, 1945, in village Mehraj, District Bathinda. On 12.06.1996, PW1 accompanied by PW2-Dr.G.S.Dhillon, District School Medical Officer from the office of Civil Surgeon, Bathinda and PW3- Naginder Parshad, Peon, went to the shop of the petitioner for inspection, where he was found present. PW1 introduced himself and other members of the party to the petitioner and disclosed the purpose of the inspection. They also offered the petitioner to conduct their personal search. PW1 requested two/three persons from the neighbourhood to join as witnesses and only PW-Surinder Singh son of Babu Singh agreed to join the inspection.
3. The case of the complainant further proceeds that on 12.06.1996 in the wake of secret information, PW1 inspected the shop of the petitioner in the presence of PW2, PW3 and PW(DW1)-Surinder Singh. On inspection, the petitioner was found stocking and exhibiting allopathic drugs for sale and distribution in his shop. On inquiry, the petitioner has neither shown any drug licence issued to him nor his registered medical practitioner certificate, authorising him to stock and exhibit the drugs for sale and distribution. The petitioner also did not disclose the names, addresses and other particulars of the persons/firm from whom, he acquired the indicated drugs. During the course of inspection, ten types of drugs stocked and exhibited for sale and distribution along with one 5 ML glass syringe with needle in a tin box, were recovered from the shop of the petitioner. A list of recovered drugs and articles in prescribed Form 16 (Ex.PB) was prepared at the spot and the petitioner signed the same in token of its correctness. The signatures of PW2, PW3 and PW(DW1)-Surinder Singh were also obtained on the recovery memo(Ex.PB). One copy of the Crl.Revision No.2365 of 2002 3 recovery memo was given to the petitioner at the spot and receipt(Ex.PB/1) was taken from him in this respect.
4. Having taken into possession the recovered drugs and articles, the Chief Judicial Magistrate allowed him(PW1) to keep the recovered drugs and articles vide order dated 13.06.1996(Ex.PC) and also signed the recovery memo(Ex.PB). All the drugs recovered from the petitioner were stated to have fallen under the definition of drugs, as defined under Section 3(b) of the Act.
5. Levelling a variety of allegations in all, according to the complainant, that on 12.06.1996, the shop of the petitioner was inspected and drugs mentioned in the recovery memo(Ex.PB) were recovered. As the petitioner neither possessed the drug licence, nor valid registered medical practitioner certificate authorising him to possess the depicted drugs, therefore, he has contravened the provisions of Section 18(c), punishable under Section 27(b)(ii) and Section 18-A, punishable under Section 28 of the Act. On the strength of aforesaid allegations, PW1 instituted the complaint(Ex.PD) against the petitioner, in the manner indicated here-in- above.
6. Having received the complaint, the petitioner was summoned to face trial for the aforesaid offences vide summoning order dated 06.11.1996 by the trial Magistrate.
7. Having completed all the codal formalities and after taking into consideration the pre-charge evidence of PW1, the trial Magistrate, charge- sheeted the petitioner, for the commission of offence punishable under Sections 27(b)(ii) and 28 of the Act vide order dated 15.01.1999. As the petitioner did not plead guilty and claimed trial, therefore, the case was slated for further evidence of the complainant.
8. The complainant in order to substantiate the charges framed against the petitioner, examined PW2-Dr.G.S.Dhillon and PW3-Naginder Parshad, Peon. PW1 appeared for further cross-examination. It may be added here that the Drug Inspector gave up PW(DW1)-Surinder Singh as unnecessary and closed the evidence of the complainant.
9. After the close of the evidence of the complainant, statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. But he denied the complainant's evidence in its totality and pleaded false Crl.Revision No.2365 of 2002 4 implication. The petitioner set-up a specific defence plea that he was falsely implicated on the asking of PW(DW1)-Surinder Singh, who wanted to evict his(petitioner)father-Des Raj from the shop, who was his tenant. The petitioner claimed that PW(DW1)-Surinder Singh obtained his signatures on blank papers. In order to substantiate his defence, the petitioner examined DW1-Surinder Singh and DW2-Ram Kishan in this regard.
10. The trial Magistrate, after taking into consideration the evidence on record, convicted and sentenced the petitioner vide impugned judgment of conviction and order of sentence, in the manner depicted here- in-above.
11. The appeal filed by the petitioner was also dismissed by the lower appellate court vide impugned judgment dated 18.11.2002.
12. The petitioner still did not feel satisfied with the impugned judgments/order and filed the present revision petition. That is how I am seized of the matter.
13. Assailing the impugned judgments of conviction and order of sentence, at the very outset, learned counsel for the petitioner has contended with some amount of vehemence that the evidence brought on record by the complainant falls short as is required to prove a criminal charge against the petitioner. The argument is that no offence under Sections 27(b)(ii) and 28 of the Act, is made out against the petitioner. So much so, the provision of Section 100(4) Cr.P.C. has not been complied with at the time of inspection of shop of the petitioner. Thus, he prayed the acceptance of the revision petition.
14. Hailing the impugned judgments, on the other hand, learned State Counsel has urged that the mandatory provision of Section 100(4) Cr.P.C. has been complied with and the case against the petitioner is duly proved by cogent evidence. Therefore, no interference is called for, in this relevant connection.
15. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to me, as there is no merit, therefore, the revision petition deserves to be dismissed for the reasons mentioned here-in-after.
16. The main celebrated argument of the learned counsel for the petitioner that since the complainant did not produce any evidence on record Crl.Revision No.2365 of 2002 5 to prove that the petitioner was actually selling the recovered drugs, so, no offence under Sections 27(b)(ii) and 28 of the Act, is made out against him, is neither tenable nor the observations in case State of Punjab Versus Buta Singh, 1991(3) Recent Criminal Reports 265, are at all applicable to the facts of the instant case. Because, accused in that case was charge-sheeted under Section 27(a) [(not under Section 27(b)(ii)] of the Act, where the element of sale is essential ingredient.
17. It is not a matter of dispute that in the instant case, the recovery of drugs was effected on 12.06.1996 and the un-amended provisions of the Act would apply. The petitioner was charge-sheeted for the commission of offence punishable under Sections 27(b)(ii) and 28 of the Act vide order dated 15.01.1999. Section 27(b)(ii) of the Act postulates that; 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 any drugs, 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 one year but which may extend to three years and with fine which shall not be less than five thousand rupees. Meaning thereby, mere stock and exhibition of the drugs (without any permit or licence) is the only essential ingredient, to invoke the penal provisions, for which the petitioner has been charge-sheeted. The condition of sale of drugs is a more heinous offence punishable under Section 27(a) of the Act, where more severe sentence was provided. In other words, mere stock and exhibition of drugs without licence or permit are essential and the element of sale is not required under Section 27(b)(ii) of the Act as urged on behalf of the petitioner.
18. The next argument of the learned counsel for the petitioner that the evidence brought on record by the complainant falls short as is required to prove a criminal charge under the Act, again is not at all tenable. As is evident from the evidence on record, PW1 has categorically stated that he inspected the shop of the petitioner in the presence of PW2, PW3 and PW (DW1)-Surinder Singh and found the drugs, which were taken into possession vide recovery memo(Ex.PB). The evidence of PW1 finds further corroboration from the statements of PW2 and PW3. They have also supported the statement of PW1 on all vital counts and maintained that the drugs mentioned in the recovery memo(Ex.PB) were duly recovered from Crl.Revision No.2365 of 2002 6 the shop of the petitioner without any permit or licence. Narrating the sequence of events, PW1 to PW3 have supported the contents of complaint (Ex.PD) on all vital counts. They gave the vivid and consistent version of the factual matrix of recovery of the indicated drugs. They were cross- examined at length but no substantial material could be elicited in searching cross-examination to dislodge their testimonies. No motive could possibly be attributed to PW1 to PW3 as to why they would falsely implicate the petitioner and would plant huge recovery of drugs unless the shoe really pinches. They have acted in discharge of their official duties in this context. PW1 has duly proved the contents of the complaint(Ex.PD) and recovery memo (Ex.PB). The petitioner has himself signed the recovery memo (Ex.PB) in token of its correctness and receipt of copy of the same. The evidence of PW1 to PW3 is thus reliable and trustworthy.
19. The other contention of the learned counsel that the drugs were not chemically examined, which renders the prosecution case doubtful, is again has no force. The perusal of recovery memo(Ex.PB) would reveal that ten specified and scheduled types of drugs such as Winflam, Paracetamol, Choloro Phenrimine, Baralgan injection, Avil injection, Gentamycin injection, Dexamethazone, Ampicillin injection, Analgin injection etc. and one glass syringe with needle in a tin box wrapped in the relevant wrappers/packets were recovered from the petitioner vide recovery memo(Ex.PB), which was duly signed by the petitioner as well as other witnesses including PW(DW1)-Surinder Singh. Even the name, complete description, batch number and expiry date etc. have been duly depicted therein. That means, since there was no dispute about the description of the specified/scheduled drugs, so, there was no occasion and PW1 was not legally required to get the same chemically examined from any laboratory under the present set of circumstances.
20. Now adverting to the last argument of the learned counsel that non-compliance of provision of Section 100(4) Cr.P.C. is fatal to the complainant's case, to my mind, the same deserves to be rejected for more than one reason. At the first instance, the shop of the petitioner was inspected in the wake of secret information and the indicated drugs were recovered by PW1 in the presence of PW2, PW3 and PW(DW1)-Surinder Singh. Secondly, it has clearly been depicted in the complaint(Ex.PD) Crl.Revision No.2365 of 2002 7 proved by PW1 that he requested two/three persons from the neighbour to join as a witness and Surinder Singh(DW1) son of Babu Singh agreed to join the inspection. In this connection, PW1 has also so stated that he sent his Peon to call the Member Panchayat or Sarpanch for witnessing the inspection but he told him that they were not available.
21. Sequelly, PW2 has also maintained that they called a public witness-Surinder Singh and owner of the shop before starting the inspection work. Likewise, PW3 has also stated that PW1-Ajay Singla asked him to call the public witness or landlord of the shop and, thus, he called Surinder Singh, who was present at the spot at the time of inspection. In cross- examination, he explained that he did not get Panch, Sarpanch or Numberdar of the village. Thus, it stands proved on record that PW1 made stern efforts to join the respectables from the locality/village, but only PW (DW1)-Surinder Singh from the locality offered to join the inspection party. Moreover, PW2-Dr.G.S.Dhillon is an independent doctor from the office of Chief Medical Officer, who testified the recovery of the drugs. It means, PW1 has searched/inspected the shop of the petitioner and recovered the indicated drugs in the presence of two independent witnesses, who have signed the recovery memo. Therefore, there was a substantial compliance of Section 100(4) Cr.P.C. and the contrary arguments of the learned counsel for the petitioner in this direction pales into insignificance and has got no direct bearing on the complainant version, particularly when no prejudice is shown to have been caused to the petitioner in this relevant behalf.
22. The defence plea and the submission of the learned counsel for the petitioner that examination of PW-Surinder Singh by the petitioner as DW1, casts a shadow of doubt on the complainant's case, deserve to be outrightly rejected. No doubt, PW-Surinder Singh was given up by the complainant and was examined by the petitioner as DW1, who has stated that he wanted to vacate the shop from Des Raj, father of the petitioner with the help of his cousin Prem Kumar. Two persons came on a scooter to his house and they asked him(DW1) to call Des Raj from his shop and they will get vacated the shop from him, but he was not at the shop. Then he called the petitioner to his house and both the persons got his(petitioner) signatures on the blank papers. But no implicit reliance can be placed on the solitary and self-serving statement of DW1 in the absence of any cogent Crl.Revision No.2365 of 2002 8 material on record in this respect. Sequelly, the statement of DW2 that in the wake of application(Ex.D2), the petitioner had taken the sponsored loan of Rs.15,000/- vide order (Ex.D1), D.R. Note(Ex.D3) and mortgaged the grossory items(karyana items) vide agreement(Ex.D4), would not come to the rescue of the petitioner. Because, the advancement of the loan would have no effect in regard to the recovery of drugs from the petitioner vide recovery memo(Ex.PB), which is otherwise proved by cogent and reliable evidence. Moreover, the facts and circumstances of the case rather suggest that PW1 has joined him at the time of inspection of the shop of the petitioner. Not only Surinder Singh(DW1) has signed the recovery memo (Ex.PB) but the same was signed by the petitioner as well in token of its correctness, besides PW1 to PW3. Rather it lends credence to the prosecution case in this relevant behalf.
23. Learned counsel for the petitioner has sought to argue that the story of the complainant with regard to the inspection of the shop of the petitioner is highly improbable and the petitioner has been falsely implicated. Meaning thereby, all the contentions now sought to be pressed into service by the learned counsel for the petitioner have already been duly considered and decided by the courts below. There is ample evidence against the petitioner as discussed here-in-above, which was rightly accepted and the courts below recorded a finding of fact that it stands proved on record that the petitioner stocked and exhibited the drugs recovered, vide recovery memo(Ex.PB), without any permit or licence and has contravened the provisions of Sections 18-A and 18(c) etc., therefore, he is liable to be punished for the commission of offence punishable under Sections 27(b)(ii) and 28 of the Act. Such finding of facts based on the evidence cannot possibly be interferred with, while exercising the limited revisional jurisdiction of this Court.
24. Faced with the situation, learned counsel appearing on behalf of the petitioner has fairly acknowledged that he will not be in a position to contest the conviction of the petitioner any more, in view of the finding of facts recorded by the courts below and the legal aspect that this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction.
25. However, learned counsel for the petitioner submitted that as Crl.Revision No.2365 of 2002 9 the petitioner is a young man and is a first offender, therefore, he is entitled to the benefit of probation of Offenders Act. Learned State Counsel has vehemently opposed the prayer and claimed that since the petitioner has committed a heinous crime, so he is not entitled to the benefit of probation of Offenders Act.
26. Having regard to the rival contentions of the learned counsel for the parties, facts and circumstances of the case emerging from the record, as discussed here-in-above, to me, it would not be expedient to grant the benefit of probation to the petitioner, where minimum sentence is provided. As strange at it may seem, but strictly speaking the tendency and frequency of such quacks, illegally stocking, exhibiting and administering such drugs, without any authorisation, permit or licence, have been tremendously increasing day-by-day, causing the grave health hazardous and complications in our society. This tendency needs to be curbed by awarding sentence of imprisonment.
27. Finding no alternative, learned counsel for the petitioner then urged that the sentence of imprisonment of the petitioner be reduced to the period already undergone by him in view of the observations in cases Hem Raj Versus State of Punjab, 2008(3) Recent Criminal Reports (Criminal) 475 and Rashpal Singh Versus State of Haryana, 2003(2) Recent Criminal Reports(Criminal) 441. The facts of the aforesaid judgments are entirely different and in Hem Raj's case(supra), the accused faced trial for 23 years, while in Rashpal Singh's case(supra), the accused suffered the agony of trial since 1983. On the peculiar facts and circumstances of those cases, sentence of imprisonment was reduced to the period already undergone by the petitioners.
28. Although, minimum punishment of one year was provided under Section 27(b)(ii) of the Act, but proviso to this Section posits 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 one year and a fine of less than five thousand rupees. In the instant case, keeping in view the huge quantity of drugs recovered from the possession of the petitioner, the fact that he has suffered the agony of protracted trial for the last more than fourteen years and totality of the facts and circumstances as discussed here-in-above, to my mind, it would be expedient and justice Crl.Revision No.2365 of 2002 10 would be squarely met and sub-served, if the sentence of imprisonment of one year imposed by the courts below on the petitioner under Section 27(b)
(ii) of the Act, is reduced to rigorous imprisonment for a period of six months and sentence of imprisonment of six months awarded, for the commission of offence punishable under Section 28 of the Act, is reduced to rigorous imprisonment for a period of three months in the obtaining circumstances of the case. Ordered accordingly. However, sentence of fine is maintained. Needless to say, both the sentences shall run concurrently.
29. No other point worth consideration has been urged or pressed by the learned counsel for the parties.
30. In the light of the aforesaid reasons, the impugned judgments of conviction are maintained, but for reduction in sentence in the manner indicated here-in-above, the impugned order of sentence is accordingly modified and the revision petition is hereby dismissed.
February 22, 2010 ( Mehinder Singh Sullar)
seema Judge
Crl.Revision No.2365 of 2002 11