State Rep. By The Drugs Inspector vs Manimaran

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._1493____OF 2018 (Arising out of SLP (Crl.) No.8452 OF 2015)

STATE REP. BY THE DRUGS INSPECTOR …Appellant

VERSUS MANIMARAN …Respondent

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 12.09.2014

passed by the High Court of Madras in Criminal R.C. No.1493 of

2013 in and by which the High Court set aside the conviction of the

respondent-accused under Sections 27(b)(ii) and 28 of the Drugs

and Cosmetics Act, 1940 and the sentence of imprisonment

imposed upon the respondent-accused.

Signature Not Verified 3. Briefly stated case of the prosecution is that the respondent Digitally signed by MADHU BALA

was running a medical shop viz., M/s. Sri Balaji Medicals. On the Date: 2018.11.30 16:06:36 IST Reason:

directions issued by the Assistant Director of Drugs Control, Salem

1 Zone, the Drugs Inspectors had inspected the respondent’s medical

shop on 17.12.2008. In the course of inspection, it was found that

certain drugs were stored without a valid drug licence and the same

were seized. A memo dated 22.12.2008 had been issued to the

respondent-accused alleging contravention of Section 18(c) of the

Drugs and Cosmetics Act, 1940. The respondent had caused reply

(Ex.-P4) to the said memo without furnishing details of purchase.

The Drug Inspector has filed a charge sheet against the respondent

informing commission of offence punishable under Sections 27(b)(ii)

and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration

of evidence, the trial court after referring to Ex.-P4 held that the

respondent has admitted that he has no licence to the premises 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 Evidence Act,

they can also be considered as primary evidence. On those

findings, the trial court convicted the respondent and sentenced him

to undergo rigorous imprisonment for one year and imposed fine of

Rs.5000/- under Section 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 the verdict of conviction and the sentence of

imprisonment, respondent-accused preferred an appeal in

Criminal Appeal No.18 of 2013 before the appellate court-Principal

2 Sessions Judge, Krishnagiri which was dismissed vide order dated

29.08.2013.

4. In the revision petition filed before the High Court, the High

Court reversed the conviction and acquitted the respondent holding

that non-examination of erstwhile owners namely Jayanthi and

Kamalakannan in whose name pharmacy licence stood was fatal to

the prosecution case. The High Court also referred to the defence

that the signature of the respondent was obtained on blank papers

in which Exs.P-4, P-7 and P-10 were prepared.

5. Learned counsel for the appellant-State has submitted that the

High Court has failed to consider that the respondent without having

a valid licence stocked and selling the drugs and that he did not

disclose the name of the supplier of the drugs, which is a

punishable offence under the provisions of the Drugs and

Cosmetics Act. It was further submitted that the High Court erred in

allowing the revision on the ground that the signature in Exs.P-4, P-

7 and P-10 were obtained on blank papers and that the respondent

had failed to prove such fact. It was also submitted that in the light

of the admission made by the respondent in Ex.-P4, non-

examination of Kamalakannan in whose name the pharmacy licence

stood and one Jayanthi in whose name the shop stood was not fatal

3 and the High Court erred in reversing the conviction of the

respondent.

6. Per contra, the learned counsel for the respondent has

submitted that the prosecution has failed to prove that the

respondent is the owner of M/s Sri Balaji Medicals and the non-

examination of Kamalakannan and Jayanthi was fatal to the

prosecution case. Learned counsel further submitted that the

alleged statement of the respondent in Exs.P-4, P-7 and P-10 relied

upon by the prosecution were only carbon copies and the 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 the

impugned judgment and materials placed on record.

8. At the time of inspection of the medical shop of the

respondent located at 191, Main Road, Bargur on 17.12.2008, it

was found that the retail medical shop was functioning without a

valid licence in violation of Section 18(c) of the Drugs and

Cosmetics Act. It was also noticed that eighty-seven items of drugs

were stocked without possessing a valid drug licence. The

respondent was prosecuted for contravention of (i) Section 18(c) of

the Drugs and Cosmetics Act for having stocked and sold drugs

4 without a valid drug licence which is punishable under Section 27(b)

(ii) of the Drugs and Cosmetics Act; and (ii) Section 18(a) of the

Drugs and Cosmetics Act for not furnishing the name of the supplier

of the drug which is punishable under Section 28 of the Drugs and

Cosmetics Act.

9. The High Court has set aside the conviction mainly on the

ground of non-examination of one Kamalakannan-the person in

whose name the pharmacy licence stood and one Jayanthi in

whose name the shop 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/s Sri Balaji Medicals from one Jayanthi

and that he had shifted the shop from the old place to the current

premises No.191, Main Road, Bargur and selling the drugs.

Relevant portion of Ex.P4 reads as under:-

“I have purchased the retail Sri Balaji Medicals two years before from Mrs. Jayanthi, but there is no sale deed made. Further the licence of this concern was expired on 31.12.2007 and not applied for the renewal. Meanwhile I have shifted the said shop from the old place to the current premises No.191, Main Road, Bargur and selling the drugs. There is no licence to this premises for sale of drugs either in my name or any other name. I have purchased the drugs against the old licence stood on the old address 226, Main Road, Bargur. I hereby inform you that there is no licence for the inspected premises that is 191, Main Road, Bargur. I was not aware of the Drugs and Cosmetics Act and its Rules since it is first time.”

5 In Ex.-P4, the respondent thus admitted having purchased the shop

from Jayanthi and that he had no licence for sale of drugs either in

his name or in any other name.

10. In Ex.-P7 also, the respondent had admitted that he had

purchased the retail shop-M/s Sri Balaji Medicals from

Kamalakannan and continually selling the drugs and that on the

date of inspection i.e. on 17.12.2008, 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 obtain licence in his own name and

apologising for the mistake and requesting for issuance of licence in

his name. The High Court, in our considered view, did not keep in

view Exs.P-4 and P-7.

11. Under Section 18(c) of the Drugs and Cosmetics Act, licence

is required for sale of any drug. Under Section 18(c) of the Act,

stocking or storing of drugs for sale cannot be done without a

licence. Respondent is charged for having stored drugs for sale

without licence. Before a person is convicted under Section 18(c)

read with Section 27(b)(ii) of the Act, the prosecution must establish

that the drugs are stocked or stored for sale without licence.

12. On the date of inspection i.e. on 17.12.2008, when

N. Banumathi, Drugs Inspector (PW-1) inspected the respondent’s

6 shop, he did not have any licence. He only stated that he was not

aware that he has to obtain the licence. When the respondent has

stocked the drugs and was selling the same without licence, there

was violation of Section 18(c) of the Act which is punishable under

Section 27(b)(ii) of the Act. The Drugs and Cosmetics Act, 1940 is a

social statute which provides for 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 of PW-1 and from the

admission of the respondent in Exs. P-4 and P-7, the prosecution

has established that the respondent did not have licence for sale of

the drugs.

13. Further during investigation, PW-1 had asked the respondent

through 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

disclosed that from whom he had purchased the eighty-seven kinds

of drugs and he had admitted the contraventions by stating that he

was not aware of the procedure to obtain the licence. Respondent

has only apologised for the mistake and requested to issue the

licence. In the light of the admission of the respondent in Exs.P-4

and P-7, non-examination of licence holder Kamalakannan and

shop owner Jayanthi was not fatal to the prosecution case. When

7 both the trial court as well as the first appellate court held that non-

examination of those two witnesses was not fatal, the High Court in

exercise of its revisional jurisdiction was not right in reversing the

said finding and held that non-examination of Kamalakannan and

Jayanthi was fatal to the prosecution case.

14. Learned counsel for the respondent has submitted that

Exs.P-4 and P-7, that is, the statements of respondent were only

carbon copies and that admission of such carbon copies raises

serious doubt about the prosecution case. As pointed out by the trial

court as well as by the first appellate court, under Section 62 of the

Indian Evidence Act, carbon copies can be taken into consideration

as primary evidence and we find no infirmity in admitting carbon

copies of those documents.

15. Yet another contention advanced by the respondent is that his

signatures 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 the courts below, if at all the signature of the

respondent in Exs.P-4, P-7 and P-10 were obtained on blank

papers, the respondent could have lodged a police complaint or a

complaint before the higher officers of PW-1 or at least could have

caused a legal notice to the complainant. But that was not to be so.

8 There is no merit in the contention of the respondent that his

signature in Exs.P-4, P-7 and P-10 were obtained on blank papers

and is only an afterthought of the respondent.

16. Upon consideration of the evidence, both the trial court as well

as the first appellate court convicted the respondent under

Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act. When

there is concurrent findings by the courts below, the High Court

ought not to have interfered with the same in exercise of its

revisional jurisdiction. The revisional jurisdiction of the High Court is

different from the appellate jurisdiction. The High court will not

normally interfere with the concurrent findings of fact, unless the

findings of fact arrived at by the courts below is perverse or that the

court has ignored the material evidence while arriving at that finding.

As held in State of Kerala v. Puttumana Illath Jathavedan

Namboodiri (1999) 2 SCC 452, ordinarily it would not be

appropriate for the High Court to reappreciate the evidence and

come to its own conclusion on the same when the evidence has

already been appreciated by the Magistrate as well as by the

Sessions court in appeal. When the courts below recorded the

concurrent findings of fact, in our view, the High Court was not right

9 in interfering with the concurrent findings of fact arrived at by the

courts below and the impugned order cannot be sustained.

17. Insofar as the sentence of imprisonment, the offence under

Section 18(c) of the Act punishable under Section 27(b)(ii) of the Act

which prescribes minimum sentence of imprisonment for one year

and minimum 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 the judgment, court may impose the sentence of

imprisonment for a term less 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. The respondent was not having

any prior conviction under the Act. As pointed out earlier, in his

statement, respondent had stated that he was not aware that he has

to obtain a licence for sale of drugs. Considering the facts and

circumstances of the case, in our considered view, in the interest of

justice proviso to Section 27(b)(ii) of the Act can be invoked and the

sentence of imprisonment of one year imposed upon the

respondent is reduced to three months.

18. In the result, this appeal is allowed and the impugned

judgment dated 12.09.2014 in Criminal R.C.No.1493 of 2013

passed by the High Court of Madras is set aside. The conviction of

10 the respondent under Sections 27(b)(ii) and 28 of the Drugs and

Cosmetics Act, 1940 is affirmed and the sentence of imprisonment

imposed upon him is reduced to three months, while maintaining the

fine of Rs.5,000/-. The respondent shall surrender within a period

of four weeks to serve the remaining sentence, failing which he shall

be taken into custody.

………………………….J. [R. BANUMATHI]

……………………………J. [INDIRA BANERJEE] New Delhi;

November 30, 2018

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