Karnataka High Court
Jayaprakash Pandit S vs The State Of Karnataka on 6 December, 2023
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NC: 2023:KHC:44212
CRL.RP No. 918 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO. 918 OF 2016
BETWEEN:
JAYAPRAKASH PANDIT S.
S/O. LATE. SUNDARA PANDIT,
AGED ABOUT 40 YEARS,
M/S. VAGHBHATA AYURVEDIC AGENCY,
JAYALAXMI NIVAS, PADIL,
MANGALORE - 575 007.
...PETITIONER
(BY SRI. K RAVISHANKAR., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
Digitally signed
REPRESENTED BY,
by VINUTHA M INSPECTOR OF DRUGS,
Location: HIGH
COURT OF D. K. DISTRICT,
KARNATAKA
MANGALORE CIRCLE,
MANGALORE - 575 002.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED U/S.401 R/W 397 CR.P.C,
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET-ASIDE THE JUDGMENT DATED 05.07.2016
PASSED IN CRL.A.NO.247/2012 PASSED BY THE III ADDL.
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CRL.RP No. 918 of 2016
DIST. AND S.J., D.K., MANGALORE AND THE JUDGMENT
DATED 13.08.2012 PASSED IN C.C.NO.5523/2003
PENDING ON THE FILE OF THE II JMFC COURT,
MANGALORE AND CONSEQUENTLY ACQUIT THE PETR.
FROM THE ALLEGED CHARGES AND ALLOW THIS R.P.
THIS PETITION, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri K.Ravishankar, learned counsel for the petitioner and Sri M. Vinay Mahadevaiah, learned HCGP for the respondent-State.
2. The accused-petitioner has filed this petition under Section 401 read with Section 397 of Cr.P.C. praying to set aside the judgment of conviction and sentence passed by the learned II JMFC, Mangalore (hereinafter referred to as 'the trial Court' for short) in C.C.No.5523/2023 dated 13.08.2012 and confirmed by judgment passed by the learned III Addl. District and Sessions Judge, D.K., Mangalore (hereinafter referred to as 'First Appellate Court' for short) in Crl.A.No.247/2012 -3- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 dated 05.07.2016, convicting and sentencing the petitioner for the offence punishable under Section 18(c) read with 27 (b)(ii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act' for short) to undergo simple imprisonment for a period of one year and fine of Rs.5,000/- in default of payment of fine, simple imprisonment for a period of two months.
3. For the sake of convenience, the parties are referred to as per their ranking before trial Court. The petitioner is the accused and the respondent is complainant before the trial Court.
4. The brief facts of the prosecution case is as under:
The accused was dealing in drugs in firm M/s.Vaghbhata Ayurvedic Agencies at Padil, Mangalore without having a valid licence under the Act. Thus, accused No.2-Drugs Inspector along with accused No.3- Assistant Drugs Controller along with panchas conducted a -4- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 test purchase on 08.02.2001 by sending one person by name Sri.Rajesh to the firm of the accused. Thereafter, he verified and seized some of the drugs from the medical shop of the accused. It was found that the accused was dealing in drugs Stopache 5 x 10, Ring Guard 5 tubes, D'cold tablets 5 stripes and found stock of various drugs for sale and distribution in his premises without any licence. Thereafter, P.W.1 sent those drugs to laboratory for testing and found that the accused had kept the drugs for selling illegally and thereby committed an offence punishable under Section 18(c) read with 27 (b)(ii) of the Act. Hence, PW.1 lodged the complaint, which led to the investigation. Thereafter, the trial Court took cognizance of the aforesaid offence and framed charges for the aforesaid offence.
5. The prosecution, in order to prove its case, examined in all 8 witnesses as PW.1 to PW.8 and documents were marked as Exs.P.1 to P.61 as well as the material objects in MO's.1 to 19. Thereafter, the trial -5- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 Court recorded the statement of the accused under Section 313 of Cr.P.C. by explaining the incriminating circumstances appearing in the prosecution witnesses and evidence to the accused. The case of the accused was one of total denial, and the accused did not enter the witness box.
6. On the basis of the oral and documentary evidence, the trial court convicted the accused for the offence punishable under Section 18(c) read with Section 27(b)(ii) of the and sentenced him to undergo simple imprisonment for a period of one year and fine of Rs.5,000/- in default of payment of fine, simple imprisonment for a period of two months.
7. Aggrieved by the judgment of conviction and sentence passed by the trial Court, the accused filed an appeal in Crl.A.No.247/2012 before the First Appellate Court, in turn, the Appellate Court confirmed the order of the trial Court, and dismissed the appeal. Now, aggrieved -6- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 by the orders of both the Courts, the accused filed this revision petition.
8. Sri. K. Ravishankar, learned counsel for the petitioner contended that the trial Court as well as the first Appellate Court erred in convicting the petitioner as the investigation was done before an Authority having no jurisdiction. Further, the alleged place of commission of offence does not fall within the jurisdiction of PW.1 and therefore, the trial Court ought to have acquitted the petitioner on this count.
9. Further, the trial Court convicted the petitioner without there being any material witnesses and the material witnesses have not been examined by the prosecution to prove that the petitioner was selling the allopathic medicine. Further, the contents of Ex.P12 and Ex.P6-panchanama have not been proven. It is contended that the drugs in question were seized from the house of the petitioner and were not from the medical shop. The Authorized Officers, who conducted the raid were not -7- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 competent Authorities to conduct the raid. Further, while conducting the search and seizure, PW.1 did not obtain a search warrant as required under Section 23(2) of the Act. The person who accorded sanction has not been examined as required under Section 33(m) of the Act. The sanction order has not been marked. Therefore, there are several irregularities in conducting the investigation. The seizure and search was not proved in accordance with law and the sanction order accorded by the Government was also not proved. On all these facts, learned counsel for the petitioner prays to allow the petition.
10. Learned HCGP for the respondent contended that PW.1-Drugs Inspector, PW.2-Additional Drugs Inspector and PW.3-Assistant Drugs Controller have categorically stated about the way in which the search and seizure were conducted in their presence and they have categorically and consistently stated against the petitioner. Further, PW.5 to PW.8 are the dealers, who supplied the medicine to the accused under Ex.P36 and Ex.P37. Hence, -8- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 there is clear and collaborative evidence against the petitioner. Since the trial Court and the First Appellate Court have given concurrent findings, no interference is called for in the revision petition. Hence, he prayed for dismissal of the revision petition.
11. It is not in dispute that the accused was the owner of M/s. Vaghbhata Ayurvedic Agencies, who sell the drugs in the shop. It is also not in dispute that the accused was dealing in drugs Stopache, 5 x 10, Ring Guard 5 tubes, D'cold tablets 5 stripes and found stock of various drugs for sale and distribution in his premises. It is also not in dispute that on 15.12.1999, PW.2 and PW.3 conducted raid on his shop along with PW.1-Drugs Inspector and the accused was not possessing any valid licence to sell those drugs and found that they were unauthorizedly kept for sale and sold by him.
12. In order to prove that those drugs were sold without a valid licence, the drug controller relied upon the evidence of the Drugs Inspector and Additional Drugs -9- NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 Inspector as per PW.1 to PW.3. As per the evidence of PW.4 to PW.8, they have clearly stated that they have supplied drugs to the shop of the accused. Thus, it is clearly established that, as on the date of the incident, the accused was selling the aforesaid drugs in his shop.
13. Under Section 18 of the Drugs and Cosmetics Act, 1940, a prohibition has been imposed as to the manufacture, sale, etc., of certain drugs and cosmetics. Section 18 of the Drugs and Cosmetics Act, 1940, reads as under:
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--
(a) xxxxxxxxxxxxxxxxxxxxx
(b) [sell or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;
(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug 9 [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
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 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.
14. The punishment for contravention of 18(c) is provided under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, reads as under:
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,--
(a) xxxxxxxxxxxxxxxxxxxxxxx
(b) any drug--
(i) xxxxxxxxxxxxxxxxxxxxxxx
(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 years 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]:
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15. On perusal of the above proposition of law, the prohibition under Section 18(c) of the Act is on the manufacturing, distribution, stocking or exhibition of medicines for the purposes of sale. The charge in the present case is that the accused had "stocked" medicine for "sale". The entire emphasis is on the "sale" of the medicines. This is evident from the sanction being sought by the Drugs Inspector from the office of the Director, Drug Control, Karnataka, wherein PW.1 sought for sanction by the competent Authority in order to prosecute the accused for contravention under Section 18(c) read with Section 27(b)(ii) of the Act. Therefore, as per the prosecution case, the accused had stocked the drugs and sold them.
16. It is not the case that the accused was selling drugs and cosmetics across the counter through a shop. On the contrary, as per the evidence of PW.1 to P.W.3, the accused was selling drugs from his house. Considering the small quantity of the medicines, most of which are in the category of lotions and ointments, it cannot be said, by any stretch of imagination that, such medicines could be stocked for sale and would come in the category of stocking of medicines for the
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 purpose of sale. A small quantity of medicine has been found in the premises of the accused, but it did not amount to selling their medicine across the counter in an open shop. Undoubtedly, the provisions of Section 18(c) and 27(b)(ii) of the Act are relevant provisions under the law that have a social purpose, which is to protect the ordinary citizen from being exploited inter alia by unethical medical practitioners. For this reason, the punishment under Section 27(b)(ii) of the Act can extend upto 5 years under the law and the minimum punishment is for a period of 5 years as amended in 2008.
17. Another fact that must be considered is that the search warrant was carried out on 08.02.2001 and sanction for prosecution was sought on 03.09.2003 and the sanction was ultimately given on 31.10.2003. There is no explanation for the delay in getting the approval.
18. In the case of Hasmukhlal D. Vora and Another Vs. State Of Tamil Nadu reported in 2022 SCC online SC 1732, the Hon'ble Apex Court quashed the criminal proceedings against the accused on the ground that the substance in question was not a drug under the Indian
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 Pharmacopoeia. One of the considerations was the delay in the proceedings against which the following observations were made:
"25. In the present case, the Respondent has provided no explanation for the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. In fact, the absence of such an explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings.
26. While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint.
27. While this court does not expect a full-blown investigation at the stage of a criminal complaint, however, in such cases where the accused has been subjected to the anxiety of a potential initiation of criminal proceedings for such a length of time, it is only reasonable for the court to expect bare-minimum evidence from the Investigating Authorities."
19. The sanction for prosecution given in the present case appears prima-facie, to suffer from vice of non application of mind. There is no reference to any of the documents, evidence or the submissions submitted by either of the parties, no reason are assigned or even an explanation pertaining to the delay, which indicates it has been passed in a mechanical manner. More over, the person who accorded sanction has not
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 been examined and the sanction order has also not been marked in the evidence.
20. In this instance, the possession of drugs is not disputed by either side.
21. Learned counsel for the petitioner contended that possession of drugs would not itself be an offence, but the prosecution has to prove the essential ingredients under Section 27 of the Act, when such being the case, even a stock of the medicine was for sale. In this regard, learned counsel relied upon the decision in the case of Mohd. Shabir Vs. State Of Maharashtra. reported in 1979 (1) SCC 568, wherein the Hon'ble Apex Court has held as under:
"4.... We, therefore, hold that before a person can be liable for prosecution or conviction under Section 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant."
22. The Hon'ble Apex Court in its recent decision in the case of S. Athilakshmi Vs. The State Represented by The
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 Drugs Inspector reported in Special Leave Petition(Crl.) No.9978/2022 dated 15.03.2023 has taken a similar view as taken by the Hon'ble Apex Court in the case of Mohd. Shabir Vs. State Of Maharashtra reported in 1979 (1) SCC 568.
23 When it comes to the case of the prosecution, based on credible information received by PW.3, the raid was conducted at the shop of the petitioner on 08.02.2001 and found that the accused was running his business without a valid license. These factual aspects have been proved by PW.1 to PW.3 by producing Ex.P1 to Ex.P61 and MO.1 to MO.19. In the concurrent findings of both the Courts below, the prosecution has proved charges levelled against the petitioner, which is supported by the evidence on record. On this point, I found no justifiable ground to interfere with the same.
24. Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, provides for minimum sentence of one year which may be extended up to three years with a fine, which shall not be less than Rs.5,000/- or three times the value of the drugs confiscated, whichever is more. The proviso further specifies that for any adequate and special reasons to be recorded in the
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 judgment, sentence of imprisonment for a term of less than one year or fine of less than Rs.5,000/- can be imposed in the instant case. The Courts below levied a fine of Rs.5,000/- on the accused and I find no justifiable ground to interfere with the same.
25. From the perusal of the records, it indicates that the incident had taken place in the year 2001. Now we are in the year 2023. Thus, 22 years have lapsed. The offence against the accused is that he was selling the drugs without valid licence. From the material on record, it is seen that, the accused was running a pharmaceutical store by obtaining a valid licence from the concerned department. The counsel for the petitioner contended that after three months of the alleged incident, the accused obtained a valid licence from the competent authorities and has been running a medical shop.
26. From the perusal of the evidence of PW.1 to PW.3, it is noticed that the renewal application filed by the accused was pending consideration with the drugs department. It is not the case of the prosecution that the accused was selling substandard or spurious or adulterated drugs. Under these
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NC: 2023:KHC:44212 CRL.RP No. 918 of 2016 circumstances, I am of the considered opinion that the sentence levied on the accused calls for interference.
27. Learned counsel for the petitioner contended that the accused was a first time offender. Therefore, the provisions of Probation of Offenders Act can be extended.
28. The Drugs and Cosmetic Act was of the year 1940, the Probation of Offenders Act is of the year 1958. Section 18 of the Probation of Offenders Act is a non-obstinate clause which is having overriding effect on the Drugs and Cosmetic Act. It is settled position of law that as a matter of rule the benefit under the Probation of Offenders Act cannot be extended. For special reasons and in the rarest of rare cases, the Courts are having power to extend the benefit of Probation of Offenders Act.
29. In the facts and circumstances of the case, while confirming the order of conviction on the petitioner, I am of the considered opinion that levy of fine of Rs.10,000/- with one day imprisonment till the raising of the Court will meet the ends of justice. To this extent, the impugned order of sentence requires modification.
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30. For the reasons stated above, I proceed to pass the following:
ORDER
(i) The revision petition filed by the accused is partly allowed.
(ii) The judgment of conviction of the petitioner passed by the trial Court in C.C.No.5523/2003 dated 13.08.2012 and the First Appellate Court in Crl.A.No.247/2012 dated 05.07.2016 are hereby confirmed. The order of sentence of imprisonment for a period of one year is modified to one day till the raising of the Court, before the trial Court and the sentence levied on accused to pay fine of Rs.5,000/- is enhanced to Rs.10,000/- and in default to pay the fine amount, to undergo simple imprisonment for a period of one month.
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(iii) Registry is directed to send trial Court records along with the copy of the order to the trial Court.
(iv) The petitioner is directed to deposit balance fine amount within two weeks from the date of receipt of the order.
Sd/-
JUDGE KTY List No.: 1 Sl No.: 21