CRLRC/1057/2008 of P.Ramesh Babu, Vs State of Andhra Pradesh, on 30 December 2015

ORDER:

This Criminal Revision Case is directed against the judgment,dated 17.07.2008, passed in Criminal Appeal No.492 of 2006 by thelearned III Additional Sessions Judge, Guntur, by and under whichthe conviction and sentence imposed against the petitioner/accusedby the learned Additional Junior Civil Judge, Chilakaluripet, GunturDistrict, in CC No.166 of 2006, dated 17.11.2006, was confirmed.

2. The allegations in the complaint, in brief, are that thepetitioner/accused is the Proprietor of M/s. Sri Pavan Medicals atD.No.8-195 C, Choutra Centre, Chilakaluripet, having sales druglicences in Forms 20 and 21. On 04.12.1999, on information that thepetitioner/accused was dealing with drugs in the premises bearingD.No.21-209, Police Station Road, Chilakaluripet, PW.1 – Inspectorof Drugs visited the said premises along with LWs.2 to 5 the DrugInspectors and mediators respectively and found thepetitioner/accused was present in the first room of the building andconducting business in drugs. They found certain drugs stocked inthe racks and in card board boxes on floor and noticed that the drugsare physician samples, which are not to be sold and certain saleabledrugs. When the petitioner/accused was asked whether he possessany sales drug licence to sell drugs in that premises and to producepurchase bills for all those drugs, he replied that he does not haveany sales drug licence to that premises and he has not produced anypurchase bills for all the drugs found. Then PW.1 seized the drugsin the presence of LWs.2 to 6 under Form-16 and cover ofpanchanama duly signed by LWs.2 to 6 and the petitioner/accused.

On 06.12.1999 the entire seizure was reported to the InspectorGeneral, Drugs Control Administration, Hyderabad, and PW.1issued notice under Section 18A of the Drugs and Cosmetics Act,1940 (for short ‘the Act’) to LW.6 to disclose the source of supply ofthe drugs. LW.6 replied on 14.12.1999 stating that he gave first roomof his Nursing Home on sub-lease to the petitioner/accused for hisbusiness. Based on that, on 16.12.1999, PW.1 issued notice underSection 18A to the petitioner/accused to disclose the source ofseized drugs. The petitioner/accused gave reply stating that thedrugs seized on 04.12.1999 belong to him only of his M/s. Sri PavanMedicals, Chotra Centre, Chilakaluripet and he can producepurchase bills for all the drugs seized within 10 days, but he has notsubmitted the same till 17.04.2000. On 18.04.2000 PW.1 issuedanother notice to the petitioner/accused to produce purchase billsand on 22.07.2000, the petitioner/accused produced some purchasebills for some seized drugs. For confirmation of ownership ofD.No.21-209, Police Station Road, Chilakaluripet, a notice wasissued to LW.10 on 24.10.2000 and on the same day LW.10 gavereply to PW.1 stating that he gave the above building to LW.6 onlease with effect from March 1997. The investigation reveals thatthe petitioner/accused was having retail sales drugs licence inForms 20 and 21 at D.No.8-195 C, Choutra Centre, Chilakaluripet,but does not have any licence for the first room of D.No.21-209,Police Station Road, Chilakaluripet. On 20.07.2001 LW.3 who wasincharge of Drugs Inspector, Narasaraopet received prosecutionorders from the Director, Drugs Control Administration, Hyderabad,to prosecute the petitioner/accused. Hence, they filed charge sheetagainst the petitioner/accused for the offences punishable underSection 18(c) read with Section 27(b)(ii), Section 18(a)(vi) read with Section 27(d) and Section 18A read with Section 28 of the Act,which was numbered as C.C. No.166 of 2006.

3. After complying with the mandatory provisions, trial wascommenced, during the course of which, prosecution has examinedPWs.1 to 8 and got marked Exs.P1 to P42 and MOs.1 to 3. Theaccused denied the evidence on record.

4. The learned Additional Junior Civil Judge, Chilakaluripet,on hearing both sides and on perusal of the entire material onrecord, by judgment, dated 17.11.2006, found the accused guilty ofthe offences under Section 18(c) read with Section 27(b)(ii), Section18(a)(vi) read with Section 27(d) and Section 18A read with Section28 of the Act and, accordingly, convicted and sentenced him toundergo simple imprisonment for a period of one year and to pay afine of Rs.5,000/- in default to suffer simple imprisonment for onemonth for the offence under Section 18(c) read with Section 27(b)(ii)of the Act, and sentenced to undergo simple imprisonment for aperiod of one year and also to pay a fine of Rs.500/- in default tosuffer simple imprisonment for 15 days for the offence under Section18(a)(vi) read with Section 27(d) of the Act and he was alsosentenced to pay a fine of Rs.500/- in default to suffer simpleimprisonment for 15 days for the offence under Section 18-A readwith Section 28 of the Act.

5. Against the said judgment, the petitioner/accused preferredCriminal Appeal No.492 of 2006 on the file of the III AdditionalSessions Judge, Guntur, and the learned Sessions Judge, byjudgment, dated 17.07.2008, dismissed the said appeal confirmingthe conviction and sentence imposed by the trial Court. Aggrievedby the same, the petitioner/accused preferred the present revision.

6. Heard Sri T.Bali Reddy, learned Senior Counsel, appearing on behalf of Sri K. Suresh Reddy, learned counsel for the revisionpetitioner/accused and the learned Additional Public Prosecutor forthe State and perused the entire material on record.

7. The learned counsel appearing for the petitioner/accusedcontends that both the Courts below have erred in finding thepetitioner/accused guilty of the offences alleged and have notappreciated the evidence on record in proper perspective. TheCourts below have relied upon the evidence of PW 1-Drug Inspector,PW 4-the Doctor, who 10 days after the incident informed the DrugInspector that he has sublet part of his Nursing Home to thepetitioner/accused for running his medical shop and also a Punchwitness who is running a medical shop in the area and who ishaving trade rivalry with the petitioner/accused. The learnedcounsel submits that the material on record do not show that thepetitioner/accused has contravened any of the provisions as allegedand hence the impugned judgment is liable to be set aside.

8. On the other hand, the learned Additional Public Prosecutorsubmits that both the Courts below have appreciated the evidence ofthe material witnesses and taking into consideration the statement ofthe petitioner/accused himself that he has taken a part of the NursingHome of PW 4 and doing business, even though he is havinglicence to do business at another place, and the evidence on recordclearly establish the offence alleged and hence there are no meritsin the revision and the same is liable to be dismissed.

9. Now the point that arises for consideration in this revision iswhether the conviction and sentence imposed by the Courts belowagainst the revision petitioner/accused for the offences alleged islegal and sustainable.

Point:

10. The admitted fact is that the petitioner/accused is alicenced chemist and druggist, having his medical shop under thename and style of “Pavan Medicals” at Door No.8-195 C, ChoutraCentre, Chilakaluripet. He was having licence issued under theprovisions of the Drugs and Cosmetics Act. But, however, on04.12.1999 it was found that the petitioner/accused is selling certainmedicines by keeping them in premises bearing Door No.21-209,Police Station Road, Chilakaluripet, where PW 4, an AyurvedicMedical Practitioner is having Nursing Home under the name andstyle of “Rajyalakshmi Nursing Home” The drugs that were found inthe front room of the Nursing Home were purchased by thepetitioner/accused from the wholesalers, who were examined asPWs 5 to 7, who all deposed that they have supplied the medicinesto the Pavan Medicals which stand in the name of thepetitioner/accused. Some other medicines were found which werephysician samples not for sale, but which were to be used byAllopathic Practitioners.

11. The Nursing Home of PW 4 was surprised by PW 1-DrugInspector along with PWs 2 and 8 on 04.12.1999. PW 1-DrugInspector was accompanied by two other Drug Inspectors and twoPunch witnesses, one of them was examined as PW 3. PW 1-DrugInspector has addressed a letter to the petitioner/accused on16.12.1999 which is Ex.P12. The petitioner/accused gave reply to iton 28.12.1999 which is Ex.P14. In the said letter, thepetitioner/accused admitted that PW 4-Dr.K.Prasad Reddy is runningNursing Home under the name and style of “Rajyalakshmi NursingHome” at Door No.21-209, Police Station Road, Chilakaluripet andthe petitioner/accused took the first room of the above Nursing Homeon lease from PW 4 from where the drugs were seized on 04.12.1999. He further informed that he is having licence andhaving medical shop under the name and style of “Pavan Medicals”which is situated at Choutra Centre, Chilakaluripet and hepurchased the drugs for that medical shop from wholesalers, whohave been examined as PWs 5, 6 & 7.

12. PW 4 Doctor deposed that he let out the front room of hisNursing Home on sub-lease to the petitioner/accused on 01.09.1999on a rent of Rs.250/- per month. PW 4 was also present when thepremises was inspected and he also signed on the relevant papers. When the premises was inspected on 04.12.1999, PW 4 informedthe Drug Inspector about sub-leasing the premises to thepetitioner/accused on 14.12.1999 under Ex.P10. On 06.12.1999 PW1-Drug Inspector sent a letter to PW 4 Doctor which is Ex.P9 andEx.P10 is the reply given by the petitioner/accused. Ex.P11 is thecopy of the rental agreement between PW 4 Doctor and thepetitioner/accused, dated 01.09.1999.

13. The evidence of PW 1-Drug Inspector is to the effect thaton 04.12.1999 he along with other Drug Inspectors PWs 2 and 8 andthe Punch witness PW 3 found the petitioner/accused stockedcertain medicines in a portion of Nursing Home. It is also in hisevidence that the petitioner/accused is having licence to sellmedicines under the name and style of “Pavan Medicals” which issituated at D.No.8-195 C, Choutra Centre, Chilakaluripet, but not forRajyalakshmi Nursing Home. Even the Punch witness PW 3 alsocorroborates the claim of PW 1.

14. The contention of the learned counsel for thepetitioner/accused is that PW 4 Doctor did not inform PW 1-DrugInspector on 04.12.1999 that he has sub-let part of his Nursing Hometo the petitioner/accused for running medical store and only on 14.12.199 he gave that reply and hence that cannot be believed. Itmay be recalled that PW 4 Doctor furnished the said information inpursuance to Ex.P9 which was dated 06.12.1999 addressed by PW1-Drug Inspector to PW 4 Doctor. Ex.P11 is the rental agreement inbetween the petitioner/accused and PW 4 Doctor. This was alsofurnished to PW 1-Drug Inspector by PW 4 Doctor. Merely becausesuch an information was furnished by PW 4 Doctor to PW 1-DrugInspector on 14.12.1999 the same cannot be viewed with anysuspicion and on that ground that cannot be disbelieved. It is in theevidence of PWs 1, 2, 8, the Punch witness-PW 3 and PW 4 Doctorthat on 04.12.1999 the petitioner/accused was found sellingmedicines in the front portion of the Nursing Home being run by PW4. Ex.P11 which contains the signature of both PW 4 and theaccused, the authenticity of which is not challenged, clearly showsthat the petitioner/accused obtained part of front room ofRajyalakshmi Nursing Home for selling the medicines.

15. Upon carefully perusing the entire voluminous oral anddocumentary evidence on record, the facts that are proved are thatthe petitioner/accused was having a licence to sell medicines underthe name and style of “Pavan Medicals”, at Door No.8-195 C,Choutra Centre, Chilakaluripet. However, he was found to be inpossession of certain drugs kept in front room of the premisesbearing Door No.21-209, Police Station Road, Chilakaluripet, wherePW 4 is running a Nursing Home under the name and style of“Rajyalakshmi Nursing Home”. The oral and documentary evidenceon record clearly shows that the petitioner/accused was sellingmedicines at a place, other than the place where he has licence tosell. There is no gain saying fact that a licensee is not supposed tostore, stock or sell the drugs at a place other than the place where he has been given licence to sell. Therefore, I have no hesitation toconclude that the petitioner/accused has contravened the provisionsof the Act and Rules made thereunder and thereby himself liablethere for.

16. The next aspect however, is as to what is the nature of theoffence that is committed by the petitioner/accused. As alreadynoticed, the petitioner/accused has been charge sheeted for threeviolations viz., Section 18(c) read with Section 27(b)(ii), Section18(a)(vi) read with Section 27(d) and Section 18A read with Section28 of the Act. Upon perusing the provisions alleged to have beencontravened by the petitioner/accused, I have no hesitation inholding that the ingredients of Section 18(a)(vi) read with Section27(d) and Section 18A read with Section 28 of the Act are notattracted to the facts of the present case. However, the offencecommitted by the petitioner/accused squarely falls within theprovisions of Section 18(c) which is punishable under Section 27(b)(ii) of the Act.

17. Section 18(c) of the Drugs and Cosmetics Act reads asunder:

“Section 18. Prohibition of manufacture

—and sale of certain drugs and cosmetics.From such date as may be fixed by the StateGovernment by notification in the Official Gazettein this behalf, no person shall himself or by anyother person on his behalf—

(a) ……..

(b) ……….

(c) [manufacture for sale or for distribution, or sell,or stock or exhibit or offer for sale,] or distributeany drug [or cosmetic],except under, and inaccordance with the conditions of, a licenceissued for such purpose under this Chapter :

Provided that nothing in this section shall apply tothe manufacture, subject to prescribed conditions,of small quantities of any drug for the purpose ofexamination, test or analysis:

Provided further that the [Central Government]may, after consultation with the Board, bynotification in the Official Gazette, permit, subjectto any conditions specified in the notification, the6 [manufacture for sale, or for distribution, sale,stocking or exhibiting or offering for sale] ordistribution of any drug or class of drugs not beingof standard quality.”

18. The punishment for the offence under Section 18(c) of theAct is provided under Section 27(b)(ii) of the Act, which reads asunder:

“Section 27. Penalty for manufacture, sale,etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on hisbehalf, manufactures for sale or for distribution, orsells, or stocks or exhibits or offers for sale ordistributes, —

(a) ………..

(b) any drug— (i) deemed to beadulterated under section 17A, but not being adrug referred to in clause (a), or

(ii) without a valid licence as requiredunder clause (c) of section 18, shall bepunishable with imprisonment for a term whichshall not be less than one year but which mayextend to three years and with fine which shallnot be less than five thousand rupees:

Provided that the Court may, for anyadequate and special reasons to be recorded inthe judgment, impose a sentence of imprisonmentfor a term of less than one year and of fine of lessthan five thousand rupees;”

19. Therefore, it is held that the petitioner/accused hascontravened the provisions of Section 18(c) of the Drugs andCosmetics Act, which is punishable under Section 27(b)(ii) of theAct. His conviction for the said offence cannot be interfered with,since it is based on legally acceptable evidence and the findings ofthe Courts below do not suffer from any illegality or irregularity,warranting any interference. However, as already stated, the twoother charges, viz., Under Section 18(a)(vi) read with Section 27(d)and Section 18A read with Section 28 of the Act are not made out inthe present case.

20. The next aspect of the matter is what is the propersentence that can be inflicted.

21. As noticed above, the petitioner/accused was a licencedchemist and druggist of Chilakaluripet town and he was havinglicence to do business under the name and style of “PavanMedicals” at Door No.8-195C, Choutra Centre, Chilakaluripet. Hewas doing business at the said premises. In addition to that, he hasalso stored nearly 100 items of drugs in “Rajyalakshmi NursingHome” which was being run by the Doctor PW 4 by obtaining aportion thereof on sublease. The drugs that have been seized areneither spurious, misbranded nor the drugs of which expiry date hasexpired.

22. In that view of the matter, by invoking the proviso toSection 27(b)(ii) of the Act, I fee that ends of justice would be met ifthe petitioner/accused is sentenced to fine, instead of sentencinghim to imprisonment for the offence under section 18(c) of the Drugsand Cosmetics Act.

23. In the result, the Criminal Revision Case is allowed in

part. The conviction and sentence as imposed by both the Courtsbelow for the offence under section 18(a)(vi) read with Section 27(d)and Section 18A read with Section 28 of the Drugs and CosmeticsAct is set aside, and the fine amount, if any paid, shall be returned tothe petitioner/accused. The conviction recorded by both the Courtsbelow against the petitioner/accused for the offence under Section18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act isconfirmed. However, the sentence of one year imprisonment is setaside, instead the petitioner/accused is sentenced to pay a fine ofRs.20,000/- (Rupees twenty thousand only) in addition to the fineamount of Rs.5,000/- as imposed by the Courts below, in default, thepetitioner/accused shall suffer simple imprisonment for a period ofthree months.

Pending miscellaneous applications, if any, shall standclosed in consequence.

__________________

M.S.K.JAISWAL,J

Date: 30.12.2015Dsr