STATE REP. BY THE DRUGS INSPECTOR versus MANIMARAN on 30 November 2018

STATE REP. BY THE DRUGS INSPECTOR

v.

MANIMARAN

(Criminal Appeal No. 1493 of 2018)

NOVEMBER 30, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Drugs and Cosmetics Act, 1940 – ss. 18(c), 27(b)(ii), 28 andproviso to 27(b)(ii) – Prosecution case was that when drugsinspectors had inspected the respondent’s medical shop, they hadfound certain drugs stored without a valid licence – Memo wasissued to the respondent u/s.18(c) and afterwards chargesheet wasfiled u/ss. 27(b)(ii) and 28 – Trial Court convicted the respondentand sentenced him to undergo rigorous imprisonment for one yearand imposed fine of Rs.5000/- u/s.27(b)(ii) of the Act and fine ofRs.500/- u/s.28 of the Act – Appeal was dismissed by the firstappellate Court – In revision, the High Court reversed the convictionand acquitted the respondent holding that person in whose namepharmacy licence stood and the person in whose name the shopstood were not examined, and furthermore that signatures of therespondent were taken on blank papers and that Exs.P-4, P-7 andP-10 were made using the same – On appeal, held: The High Courtdid not keep in view that the respondent had admitted that he hadpurchased the shop from the erstwhile owner and that he had nolicence for sale of drugs either in his name or in any other name –When both the trial Court as well as the first appellate Court heldthat non-examination of erstwhile owner of the shop and person inwhose name the pharmacy licence stood was not fatal, the HighCourt in exercise of its revisional jurisdiction was not right inreversing the said finding – Insofar as signatures of the respondenton blank papers were concerned, the respondent did not lodge anypolice complaint or complaint before the higher officers of the Druginspector or caused any legal notice to the complainant, thus, itwas only an afterthought of the respondent to defend himself thathis signature were obtained on blank papers – From the evidenceof Drug inspector and the admission of the respondent, theprosecution had established that respondent did not have licence

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Afor sale of drugs – However, in instant case, the offence wascommitted ten years back and respondent was not having any priorconviction under the Act, further, he had stated in his statement thathe was not aware that he had to obtain licence for sale of drugs –Therefore, in interest of justice proviso to s.27(b)(ii) of the Actinvoked and the sentence of imprisonment of one year imposed uponBthe respondent reduced to three months, while maintaining the fineof Rs.5000/- – Jurisdiction – Revisional Jurisdiction.

Evidence Act, 1872 – s.62 – Carbon copies – Held: Carboncopies can be taken into consideration as primary evidence.

CAllowing the appeal, the Court

HELD: 1. Upon consideration of the evidence, both thetrial court as well as the first appellate court convicted therespondent under Sections 27(b)(ii) and 28 of the Drugs andCosmetics Act. When there is concurrent findings by the courtsDbelow, the High Court ought not to have interfered with the samein exercise of its revisional jurisdiction. The revisional jurisdictionof the High Court is different from the appellate jurisdiction. TheHigh court will not normally interfere with the concurrent findingsof fact, unless the findings of fact arrived at by the courts below isperverse or that the court has ignored the material evidence whileEarriving at that finding. Ordinarily it would not be appropriate forthe High Court to reappreciate the evidence and come to its ownconclusion on the same when the evidence has already beenappreciated by the Magistrate as well as by the Sessions court inappeal. When the courts below recorded the concurrent findingsFof fact, the High Court was not right in interfering with theconcurrent findings of fact arrived at by the courts below and theimpugned order cannot be sustained. [Para 16][401-G-H;402-A-B]

2. The offence under Section 18(c) of the Act is punishableGunder Section 27(b)(ii) of the Act which prescribes minimumsentence of imprisonment for one year and minimum fine ofrupees five thousand. As per proviso to Section 27(b)(ii) of theAct, for any adequate and special reasons to be recorded in thejudgment, court may impose the sentence of imprisonment for aterm less than one year and a fine of less than five thousand only.HIn this case, the offence was committed in the year 2008, about ten years back. The respondent was not having any priorconviction under the Act. The respondent had stated in hisstatement, that he was not aware that he has to obtain a licencefor sale of drugs. Considering the facts and circumstances of thecase, in the interest of justice, proviso to Section 27(b)(ii) of theAct can be invoked and the sentence of imprisonment of oneyear imposed upon the respondent is reduced to three months.[Para 17][402-C-E]

State of Kerala v. Puttumana Illath JathavedanNamboodiri (1999) 2 SCC 452 : [1999] 1 SCR 575 –relied on.

Case Law Reference

[1999] 1 SCR 575relied onPara 16

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1493 of 2018.

From the Judgment and Order dated 12.09.2014 of the High Courtof Judicature at Madras in Crl. R.C. No. 1493 of 2013.

M. Yogesh Kanna, S. Paratha Sarathi, Mrs.Sujatha Bagadhi,Raja Rajeshwaran S., Advs. for the Appellant.

Vimal Pani S.C.V, A. Lakshminarayanan., Advs. for theRespondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 12.09.2014 passedby the High Court of Madras in Criminal R.C. No.1493 of 2013 in andby which the High Court set aside the conviction of the respondent-accused under Sections 27(b)(ii) and 28 of the Drugs and CosmeticsAct, 1940 and the sentence of imprisonment imposed upon therespondent-accused.

3. Briefly stated case of the prosecution is that the respondentwas running a medical shop viz., M/s. Sri Balaji Medicals. On thedirections issued by the Assistant Director of Drugs Control, Salem Zone,the Drugs Inspectors had inspected the respondent’s medical shop on17.12.2008. In the course of inspection, it was found that certain drugs A

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Awere stored without a valid drug licence and the same were seized. Amemo dated 22.12.2008 had been issued to the respondent-accusedalleging contravention of Section 18(c) of the Drugs and Cosmetics Act,1940. The respondent had caused reply (Ex.-P4) to the said memo withoutfurnishing details of purchase. The Drug Inspector has filed a chargesheet against the respondent informing commission of offence punishableBunder Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940.Upon consideration of evidence, the trial court after referring to Ex.-P4held that the respondent has admitted that he has no licence to thepremises for sale of drugs. The trial court further held that Exs.P-4 to P-7 though were carbon copies, as per Section 62 of the Indian EvidenceCAct, they can also be considered as primary evidence. On those findings,the trial court convicted the respondent and sentenced him to undergorigorous imprisonment for one year and imposed fine of Rs.5000/- underSection 27(b)(ii) of the Drugs and Cosmetics Act and fine of Rs.500/-under Section 28 of the Drugs and Cosmetics Act. Aggrieved by theverdict of conviction and the sentence of imprisonment, respondent-Daccused preferred an appeal in Criminal Appeal No.18 of 2013 beforethe appellate court-Principal Sessions Judge, Krishnagiri which wasdismissed vide order dated 29.08.2013.

4. In the revision petition filed before the High Court, the HighCourt reversed the conviction and acquitted the respondent holding thatEnon-examination of erstwhile owners namely Jayanthi and Kamalakannanin whose name pharmacy licence stood was fatal to the prosecutioncase. The High Court also referred to the defence that the signature ofthe respondent was obtained on blank papers in which Exs.P-4, P-7 andP-10 were prepared.F

5. Learned counsel for the appellant-State has submitted that theHigh Court has failed to consider that the respondent without having avalid licence stocked and selling the drugs and that he did not disclosethe name of the supplier of the drugs, which is a punishable offenceunder the provisions of the Drugs and Cosmetics Act. It was furtherGsubmitted that the High Court erred in allowing the revision on the groundthat the signature in Exs.P-4, P-7 and P-10 were obtained on blankpapers and that the respondent had failed to prove such fact. It was alsosubmitted that in the light of the admission made by the respondent inEx.-P4, non-examination of Kamalakannan in whose name the pharmacylicence stood and one Jayanthi in whose name the shop stood was notH

fatal and the High Court erred in reversing the conviction of therespondent.

6. Per contra, the learned counsel for the respondent has submittedthat the prosecution has failed to prove that the respondent is the ownerof M/s Sri Balaji Medicals and the non-examination of Kamalakannanand Jayanthi was fatal to the prosecution case. Learned counsel furthersubmitted that the alleged statement of the respondent in Exs.P-4, P-7and P-10 relied upon by the prosecution were only carbon copies andthe courts below could not have based the conviction upon Exs.P-4,P-7 and P-10 and that the High Court has rightly reversed the same.

7. We have considered the rival submissions and perused theimpugned judgment and materials placed on record.

8. At the time of inspection of the medical shop of the respondentlocated at 191, Main Road, Bargur on 17.12.2008, it was found that theretail medical shop was functioning without a valid licence in violation ofSection 18(c) of the Drugs and Cosmetics Act. It was also noticed thateighty-seven items of drugs were stocked without possessing a validdrug licence. The respondent was prosecuted for contravention of (i)Section 18(c) of the Drugs and Cosmetics Act for having stocked andsold drugs without a valid drug licence which is punishable under Section27(b)(ii) of the Drugs and Cosmetics Act; and (ii) Section 18(a) of theDrugs and Cosmetics Act for not furnishing the name of the supplier ofthe drug which is punishable under Section 28 of the Drugs and CosmeticsAct.

9. The High Court has set aside the conviction mainly on theground of non-examination of one Kamalakannan-the person in whosename the pharmacy licence stood and one Jayanthi in whose name theshop stood. The High Court did not keep in view that under Ex.-P4,the respondent has admitted that he had purchased the retail shop-M/sSri Balaji Medicals from one Jayanthi and that he had shifted the shopfrom the old place to the current premises No.191, Main Road, Bargurand selling the drugs. Relevant portion of Ex.P4 reads as under:- “I have purchased the retail Sri Balaji Medicals two years beforefrom Mrs. Jayanthi, but there is no sale deed made. Further thelicence of this concern was expired on 31.12.2007 and not appliedfor the renewal. Meanwhile I have shifted the said shop from theold place to the current premises No.191, Main Road, Bargur and A

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Aselling the drugs. There is no licence to this premises for sale ofdrugs either in my name or any other name. I have purchased thedrugs against the old licence stood on the old address 226, MainRoad, Bargur. I hereby inform you that there is no licence for theinspected premises that is 191, Main Road, Bargur. I was notaware of the Drugs and Cosmetics Act and its Rules since it isBfirst time.”In Ex.-P4, the respondent thus admitted having purchased theshop from Jayanthi and that he had no licence for sale of drugs either inhis name or in any other name.

C10. In Ex.-P7 also, the respondent had admitted that he hadpurchased the retail shop-M/s Sri Balaji Medicals from Kamalakannanand continually selling the drugs and that on the date of inspection i.e. on17.12.2008, he did not have the valid licence. Both in Exs.P-4 and P-7,the respondent had stated that he was not aware that he has to obtainlicence in his own name and apologising for the mistake and requestingDfor issuance of licence in his name. The High Court, in our consideredview, did not keep in view Exs.P-4 and P-7.

11. Under Section 18(c) of the Drugs and Cosmetics Act, licenceis required for sale of any drug. Under Section 18(c) of the Act, stockingor storing of drugs for sale cannot be done without a licence. RespondentEis charged for having stored drugs for sale without licence. Before aperson is convicted under Section 18(c) read with Section 27(b)(ii) ofthe Act, the prosecution must establish that the drugs are stocked orstored for sale without licence.

12. On the date of inspection i.e. on 17.12.2008, whenFN. Banumathi, Drugs Inspector (PW-1) inspected the respondent’s shop,he did not have any licence. He only stated that he was not aware thathe has to obtain the licence. When the respondent has stocked the drugsand was selling the same without licence, there was violation of Section18(c) of the Act which is punishable under Section 27(b)(ii) of the Act.GThe Drugs and Cosmetics Act, 1940 is a social statute which providesfor checks and balances so that drugs are sold strictly only by the licence-holder or that the adulterated drugs are not sold. From the evidence ofPW-1 and from the admission of the respondent in Exs. P-4 and P-7, theprosecution has established that the respondent did not have licence forsale of the drugs.H

13. Further during investigation, PW-1 had asked the respondentthrough Ex.-P3 to disclose that from whom he had purchased the eighty-seven kinds of drugs. In his reply letter (Ex.-P4), he has not disclosedthat from whom he had purchased the eighty-seven kinds of drugs andhe had admitted the contraventions by stating that he was not aware ofthe procedure to obtain the licence. Respondent has only apologised forthe mistake and requested to issue the licence. In the light of the admissionof the respondent in Exs.P-4 and P-7, non-examination of licence holderKamalakannan and shop owner Jayanthi was not fatal to the prosecutioncase. When both the trial court as well as the first appellate court heldthat non-examination of those two witnesses was not fatal, the HighCourt in exercise of its revisional jurisdiction was not right in reversingthe said finding and held that non-examination of Kamalakannan andJayanthi was fatal to the prosecution case.

14. Learned counsel for the respondent has submitted thatExs.P-4 and P-7, that is, the statements of respondent were only carboncopies and that admission of such carbon copies raises serious doubtabout the prosecution case. As pointed out by the trial court as well asby the first appellate court, under Section 62 of the Indian Evidence Act,carbon copies can be taken into consideration as primary evidence andwe find no infirmity in admitting carbon copies of those documents.

15. Yet another contention advanced by the respondent is that hissignatures were obtained on blank papers and that Exs.P-4, P-7 and P-10 have been made using the signed blank papers. As pointed out by thecourts below, if at all the signature of the respondent in Exs.P-4, P-7 andP-10 were obtained on blank papers, the respondent could have lodgeda police complaint or a complaint before the higher officers of PW-1 orat least could have caused a legal notice to the complainant. But thatwas not to be so. There is no merit in the contention of the respondentthat his signature in Exs.P-4, P-7 and P-10 were obtained on blank papersand is only an afterthought of the respondent.

16. Upon consideration of the evidence, both the trial court aswell as the first appellate court convicted the respondent underSections 27(b)(ii) and 28 of the Drugs and Cosmetics Act. When thereis concurrent findings by the courts below, the High Court ought not tohave interfered with the same in exercise of its revisional jurisdiction.The revisional jurisdiction of the High Court is different from the appellatejurisdiction. The High court will not normally interfere with the concurrent AB

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Afindings of fact, unless the findings of fact arrived at by the courts belowis perverse or that the court has ignored the material evidence whilearriving at that finding. As held in State of Kerala v. Puttumana IllathJathavedan Namboodiri (1999) 2 SCC 452, ordinarily it would not beappropriate for the High Court to reappreciate the evidence and cometo its own conclusion on the same when the evidence has already beenBappreciated by the Magistrate as well as by the Sessions court in appeal.When the courts below recorded the concurrent findings of fact, in ourview, the High Court was not right in interfering with the concurrentfindings of fact arrived at by the courts below and the impugned ordercannot be sustained.

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17. Insofar as the sentence of imprisonment, the offence underSection 18(c) of the Act punishable under Section 27(b)(ii) of the Actwhich prescribes minimum sentence of imprisonment for one year andminimum fine of rupees five thousand. As per proviso to Section 27(b)(ii)of the Act, for any adequate and special reasons to be recorded in theDjudgment, court may impose the sentence of imprisonment for a termless than one year and a fine of less than five thousand only. In this case,the offence was committed in the year 2008, about ten years back. Therespondent was not having any prior conviction under the Act. As pointedout earlier, in his statement, respondent had stated that he was not awarethat he has to obtain a licence for sale of drugs. Considering the factsEand circumstances of the case, in our considered view, in the interest ofjustice proviso to Section 27(b)(ii) of the Act can be invoked and thesentence of imprisonment of one year imposed upon the respondent isreduced to three months.

18. In the result, this appeal is allowed and the impugned judgmentFdated 12.09.2014 in Criminal R.C.No.1493 of 2013 passed by the HighCourt of Madras is set aside. The conviction of the respondent underSections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 isaffirmed and the sentence of imprisonment imposed upon him is reducedto three months, while maintaining the fine of Rs.5,000/-. The respondentGshall surrender within a period of four weeks to serve the remainingsentence, failing which he shall be taken into custody.

Ankit Gyan

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