Gujarat High Court
State Of Gujarat vs Rajesh Medical And General Stores And ... on 15 March, 1993
Equivalent citations: (1993)2GLR1094
JUDGMENT K.J. Vaidya, J.
1. This appeal by the State of Gujarat for enhancement of sentence is directed against the impugned judgment and order, dated 13-2-1986, rendered in Criminal Case No. 2900 of 1985, by Shri S.J. Sheth, learned J.M.F.C., Anand, wherein three respondents, viz., M/s. Rajesh Medical & General Stores, Anand, and two others - who incidentally happen to be the father and son and also the owner and the person-in-charge of the said Stores, on each of them pleading guilty to the charge of contravening Rules 65(4)(4) and 65(4)(3) of the Drugs & Cosmetics Rules, 1945 for short "the Rules" framed under the Drugs & Cosmetics Act, 1940 for short "the Act" which are offences under Sections 18(a)(i), 18(d), 18A of the said Act, punishable under Sections 27(b)(ii) and 27(c) of the Act, were ordered to be convicted and sentenced for the same till rising of the Court and to pay fine of Rs. 2,500/- in default, to undergo R.I. for one year.
2. Few relevant facts: According to the Drugs Inspector, Mr. R.R Gandhi P.W. 1, Exh. 3 on 28-1-1985 around 4-00 p.m. when he visited 'M/s. Rajesh Medical & General Stores' at Anand, he found the respondent No. 3 was present in the shop selling various drugs and medicines and also noticed some tubes of 'Borolin Anti-septic Perfume Creme'. On some suspicion arising about the standard of the said Borolin tube, he purchased the same for the purpose of analysis and accordingly seized them in presence of Panchas after drawing the Panchnama. Thereafter, on making further inquiry from the respondent No. 3, it was found out that the said tubes were purchased from some unknown vendor whose names and addresses were also not known and that he had no purchase bills regarding the same. This according to the Drug Inspector was clearly in contravention of Rule 65(4)(4) of the Rules. Further while purchasing the said 'Borolin' tube for the analysis, the respondent No. 3 did not issue any cash/credit memo and thereby he further contravened Rule 65(4)(3)(i) of the Rules. Still further, according to the Drags Inspector, the respondents were found in possession of the stock of the said Borolin tubes for selling, whereby they had committed the offences punishable under Sections 18(a)(i), 18(a)(vi), 18(e) and 18A of the Act, which are punishable under Sections 27(b)(ii) and 27(c) of the Act. On the basis of these allegations, after obtaining necessary sanction, the Drugs Inspector filed a complaint in the Court of learned J.M.F.C., Anand whereupon on issuance of the summons, the respondents appeared before the Court for facing the trial.
3. From the record, it further transpires that the learned Magistrate framed the charge [Exh. 21] on 13-2-1986 and recorded oral plea of the three respondents at Exhs. 22, 23 and 24 respectively, wherein they pleaded guilty to the charge and also prayed for mercy on the ground that the alleged offences were their first offence. Over and above the oral pleas of guilty, all the three respondents also submitted a joint purshis [Exh. 26]. The learned Magistrate accepting the said plea convicted the respondents for the offences with which they came to be charged and sentenced each one of them, as stated in detail in para 1 of this judgment giving rise to the present appeal for enhancement of sentence.
4. Mr. M.A. Bukhari, learned A.P.P. while making serious grievance against unduly lenient and manifestly illegal and unjust order of sentence, submitted that the same was ex-fade illegal being contrary to the minimum sentence as prescribed under the relevant clauses of Section 27 of the said Act. The learned A.P.P. further submitted that when the Statute has prescribed the minimum sentence, this legislative mandate should not have been ignored by the learned Magistrate, even if the accused pleaded guilty to the charge. The learned A.P.P. further submitted that having regard to the facts, circumstances and the law governing the case of plea of guilty, the resultant sentence till rising of the Court only and fine of Rs. 2,500 being ex-fade illegal, the case deserves to be at once remanded to the trial Court for de-novo trial. In support of this contention, the learned A.P.P. has relied upon the decision of This Court rendered in case of State of Gujarat v. Thakorlal Keshavlal Rana and Anr. reported in 1991 (1) XXXII (1) GLR 71. The learned A.P.P. further submitted that this decision, of course, is under me Prevention of Food Adulteration Act, 1955, but at the sametime, die principle involved, namely, when the Statute has prescribed die minimum sentence and yet, the learned Magistrate if in contravention of die same awarded a sentence which was less than minimum on the plea of guilty by the accused, then in that case, the same is applicable with all force to the facts and circumstances of the present case. Thus, the present case apparently being a case of plea-bargaining, it deserves to be remanded. The learned A.P.P. on the basis of the above submissions finally urged that instant case also apparently being a case of plea-bargaining, the same deserves to be remanded to the trial Court for fife novo trial.
5. Now at the very outset, it has got to be stated that there is indeed considerable force in the submissions made by the learned A.P.P. and hence the same merit acceptance in toto. Having regard to the facts and circumstances of the case, the same crearly falls within the preview of Sections 17B. 18(a)(i), 18(a)(vi), 18(c), 18A, which are punishable under Sections 27(b)(ii), 27(c) of the Act. The relevant provisions of Section 27(c)(ii) and Section 27(c) reads as under:
27. Penally 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) xxx xxx xxx (b) any drug-
(i) deemed to be adulterated under Section 17A, but not being a drug referred to in Clause (a), or
(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 one year but which may extend to three years and with fine which shall not be less than five thousand rupees:
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 one year and of fine of less than five thousand rupees;
(c) any drug deemed to be spurious under Section 17B, but not being a drug referred to in Clause (a) 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 five thousand rupees:
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 but not less than one year.
6. Now taking into consideration the above provision regarding sentence under Section 27(c), the respondents were liable to be punished at least for a term not less than three years and fine which shall not be less than Rs. 5.000/-, and even if at all they could be believed to have made out some case with 'adequate and special' reasons warranting any lenient view to be taken, then even, they were liable to be punished for the minimum sentence of one year (Emphasis supplied). This material aspect unfortunately has been totally lost sight of by the learned Magistrate while accepting the plea of guilty and in sentencing the respondents till rising of the Court and to pay fine of Rs. 2,500/-. When such is an unescapable factual and legal position, merely because the respondents pleaded guilty that by itself did not invest the trial Court with any special power to take charitable view of the matter by short-circuiting the entire trial and awarding unduly lenient sentence. Further the reasons given by the learned Magistrate for taking absolutely undeserving charitable view of the matter in imposing a flee-bite sentence is totally unsustainable. On going through the judgment, it appears that the learned Magistrate has misdirected himself in observing that the discretion is vested in the Court to award less than the minim am sentence after assigning reasons for the same. Now this observation per se is unwarranted and contrary to the provision contained in Section 27(c) which even for the adequate and special reasons, prescribes the minimum sentence of not less than one year! ! It is indeed difficult to understand as to how the learned Magistrate failed to read the black and white provision contained in Section 27(c) of the Act pertaining to the minimum sentence? It appears that while taking lenient view of the matter, following circumstances have weighed with the learned Magistrate:
(1) that the respondent No. 2 is an old man and found to be seriously ill;
(2) that this was their first offence;
(3) that the respondent No. 3 had purchased Borolin from unknown vendor as at the relevant time, there was shortage of this particular medicine;
(4) that he has no intention to commit the offence;
(5) that the muddamal 'Borolin' is an ointment fur skin application and that because of use of the same, there was not going to be any serious deleterious effect;
(6) that on seeing the testing report, neither Zinc Oxide nor Boric acid were present.
7. Now with due respect to the learned Magistrate, it may be stated mat except bare assertions in the joint purshis [Exh. 26] submitted by the respondents to the effect that the respondents No. 2 was sick old man and was not attending the shop at the relevant time, there was absolutely nothing on the record to testify and support the same for the Court to satisfy its judicial conscience regarding genuineness of the same to accept it. In the said joint purshis there is neither any specific age mentioned nor any specific disease described, nor any medical certificate produced in support of the alleged sickness of respondent No. 2! Thus, except bald assertion and mere ipsi-dixit in the written purshis, there is absolutely nothing on the record to justify alleged grounds for taking any lenient view of the matter, even if it was legally possible to be availed of! It is to be mentioned that when Legislature vests any discretion in Courts to award less than the minimum sentence prescribed under the particular Statute then such a discretion should be exercised with the utmost care and circumspection. If on the contrary, the Court remains relaxed and unattentive, it is very likely that in a given case some scheming accused trickily invoking false sympathy of Court may get away with light sentence defeating the very object of the sentencing process ! Further still, it is indeed not a valid and justifiable defence open to the respondent No. 3 that he had purchased 'Borolin' from unknown vendor, and therefore, he had no intention to commit any offence. As a matter of fact, having regard to the Rule 65(3)(i) of the Drugs & Cosmetics Rules, 1945, not only such a defence is not available to any accused but to take the same is suicidal and virtually admitting guilt. The said Rules 65(4)(3)(i) and 65(4)(4)(i) of the Rules reads as under:
65(4)(3)(i) The supply by retail of any drug shall be made against a cash/credit memo which shall contain the following particulars:
(a) Name, and address and sale number of the Order;
(b) Serial number of the cash/credit memo;
(c) the name and quantity of the drug supplied....
65(4)(4)(i) Records of purchase of a drug intended for sale or sold by retar shall be maintained by the licensee and such records shall show the following particulars, namely;
(a) the date of purchase;
(b) the name and address of the parson from whom purchased and the number of the relevant licence held by him,
(c) the name of the drug, the quantity and the batch number, and
(d) the name of the manufacturer of the drug....
Thus, it is clear from the admission of the respondent No, 3 that this particular Rules 65(4)(3)(i) and 65(4)(4)(i) of the Rules have admittedly not been complied with!! Further, unfortunately as it is while pleading guilty, respondents have lost fright of Section 19 of the Act where the defence pleaded is expressly not permissible. The said Section 19 reads as under:
19. Pleas: ('} Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug or cosmetic in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.
(Emphasis supplied)
8. Thus, the defence taken by the respondents No. 3 itself is thus chargeable under Section 18(a)(vi) which is punishable under Section 27(d) of the Act. Thus taking into consideration the aforesaid discussion, it is very clear that the trial Court has committed an obvious error in accepting the plea of guilty by not awarding the minimum sentence as prescribed under Section 27(c) of the said Act. In fact, had indeed the learned Magistrate been careful enough to point out to the respondents that despite their pleading guilty, the Court as per the Statutory mandate was going to impose a sentence of not less than three years and fine of Rs. 5,000 as provided under Section 27(c) of the Act, unless a case for lesser sentence was made out as provided in proviso to Section 27(c) of the said Act, for which also, the minimum sentence is of one year, perhaps, the respondents would not have dared to plead guilty ! It appears that the respondents probably thinking that by pleading guilty, they would be let-off with light sentence, they were tempted to plead guilty. It is indeed unfortunate that though respondents were represented by the learned Advocate, the learned Advocate in his turn did not care to point out and impress upon them that pleading guilty to the charge was fraught with irreversible consequences of being visited with the minimum sentence of imprisonment and fine which the trial Court was bound to impose in view of the express Legislative mandate given Section 27(c) of the Act. When both - the learned Advocate and the learned Magistrate, despite express provision in the Law failed to warn, and thereby discharge their duties to the respondents about the danger of being visiting with minimum sentence, no fault of pleading guilty can be fastened on the respondents alone. It is hoped that henceforth both the learned Magistrate and Advocate, in such cases, will take due and necessary care in informing accused/clients properly before they plead guilty to the charge where minimum sentence is prescribed. In the instant case, since the credulous respondents for no fault of their own apparently have been lead to believe that by pleading guilty, they will be let-off by some nominal sentence, it would not be fair and just on the part of This Court to spring surprise in this appeal by enhancing their sentence by imposing the least minimum sentence of imprisonment and fine, as prescribed under Section 27(c) of the Act, without the respondents being actually tried on merits. In this view of the matter, this matter deserves to be remanded to the trial Court for de-novo trial.
9. In the result, this appeal for enhancement of sentence is dismissed. The impugned judgment and order of conviction and sentence is hereby ordered to be quashed and set-aside. Fine, if paid, be refunded to each of the accused. The matter is remanded to the trial Court for de-novo trial to be disposed of on merits, according to law and as expeditiously as possible, in view of the fact that the offence is of the year 1985.