Dr.V.Krishna Murthy, vs State Of A.P., Rep By Pp.,
2023 Latest Caselaw 874 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                               ****

CRIMINAL REVISION CASE No.896 OF 2007

Between:

Dr. V. Krishna Murthy, S/o Kotaiah, Proprietor and Medical Officer, M/s. Sivani Blood Bank, Dornakal Road, Suryaraopet, Vijayawada-2. .... Petitioner/Appellant/ Accused Versus

The State of A.P., Rep. by its Public Prosecutor, High Court of A.P. .... Respondent/complainant.

DATE OF ORDER PRONOUNCED              :   15.02.2023


SUBMITTED FOR APPROVAL:




          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU



1. Whether Reporters of Local Newspapers
   may be allowed to see the Order?                    Yes/No

2. Whether the copy of Order may be
   marked to Law Reporters/Journals?                   Yes/No


3. Whether His Lordship wish to see the
   Fair copy of the order ?                            Yes/No




                                 ___________________________
                                    A.V.RAVINDRA BABU, J




           * HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

              + CRIMINAL REVISION CASE No.896 OF 2007



                                 % 15.02.2023

# Between:
Dr. V. Krishna Murthy, S/o Kotaiah,
Proprietor and Medical Officer,
M/s. Sivani Blood Bank, Dornakal Road,
Suryaraopet, Vijayawada-2. ....          Petitioner/Appellant/
                                       Accused
                                Versus

The State of A.P., Rep. by its Public Prosecutor, High Court of A.P. .... Respondent/complainant.

! Counsel for the Revision Petitioner

: Sri C. Sharan Reddy

^ Counsel for the Respondent : Public Prosecutor

< Gist:

> Head Note:

? Cases referred: 1 (1979) I Supreme Court Cases 568

AIR 1974 SC 469

This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL REVISION CASE NO.896 OF 2007

ORDER:-

This Criminal Revision Case is filed by the petitioner, under

Sections 397 and 401 of Code of Criminal Procedure Code

("Cr.P.C." for short), who is the accused No.1 in C.C.No.496 of

2002, on the file of III-Additional Chief Metropolitan Magistrate,

Vijayawada and unsuccessful appellant in Criminal Appeal No.10

of 2006 on the file of Metropolitan Sessions Judge, Vijayawada,

challenging the judgment, dated 06.07.2007 in Criminal Appeal

No.10 of 2006, where under the learned Metropolitan Sessions

Judge dismissed the Criminal Appeal confirming the judgment,

dated 09.01.2006 in C.C.No.496 of 2002 on the file of

III-Additional Chief Metropolitan Magistrate, Vijayawada.

2) The present Revision Petitioner faced trial before the

trial Court for the contravention of the provisions of Drugs and

Cosmetics Act and he was convicted and sentenced. Challenging

the same, he filed Criminal Appeal before the Metropolitan

Sessions Judge, Vijayawada and it was dismissed on merits.

Hence, he filed the present Criminal Revision Case.

3) The parties to this Criminal Revision Case will

hereinafter be referred as described before the Court below for

the sake of convenience.

4) The case of the complainant before the Court below,

in brief, is as follows:

(i) L.W.1 is a Drug Inspector appointed under Section 21

of the Drugs and Customs Act, 1940. Presently he is working at

Vijayawada. He has the jurisdiction for the entire State of Andhra

Pradesh.

(ii) On 27.03.2002, basing on the information regarding

the storage of Blood at Sangha Mitra Clinic, situated at D.No.29-

19-831, Dornakal Road, Vijayawada by Dr.V.Krishna Murthy, the

Complainant-L.W.1 along with Sub-Inspector of Police-L.W.2 and

two mediators raided the premises of Sangha Mitra Clinic at

06:15 pm and they found 22 filled blood bags and 60 X 10 units

blood collection bags (CPDA-I) in a room, situated at the right

side of the entrance of Sangha Mitra Clinic. Then the complainant

seized the above stocks under Form-16 in the presence of the

mediators under the cover of mediators report and obtained

acknowledgment from A1. L.W.5-Dr.Sudhakar addressed a letter

to the complainant stating that the entire building was taken for

rent and the room where the blood seized was given to

Dr.V.Krishna Murthy, proprietor of M/s. Sivani Blood Bank. A1

accepted that the stock belongs to him only and also accepted

that he is not holding any license for the said premises. He

further stated that he is the proprietor of M/s. Sivani Blood Bank.

Then the complainant has informed the seizure to the Court of V

Metropolitan Magistrate, Vijayawada on 28.03.2002, as required

under Section 23 (5) of Drugs and Cosmetics Act, 1940 and as

per the direction, the complainant produced the property along

with the complaint. The Sub-Inspector of Police recorded the

statements of professional donors and on 28.03.2002 that Dr.V.

Krishna Murthy submitted certified copy of cash and credit memo,

dated 24.03.2002 of M/s. Sri Devi Diagnostic Distributes,

Miryalaguda issued to M/s.Sivani Blood Bank with regard to 600

blood bags. On verification, it was found that the above firm is

not in existence at the given address. On the basis of news item

published in Eenadu Telugu daily, dated 02.04.2002 regarding

un-official collection of blood by Dr.V.Krishna Murthy along with

some others at Huzurnagar, Nalogonda District, the complainant

contacted Drugs Inspector and came to know that the Sub-

Inspector of Police, Huzurnagar Police Station, Nalgonda District,

arrested A-1 for the illegal blood collection camp on the basis of

the complaint lodged by Uppala Sri Hari, President of Varthaka

Sangam. Then the complainant addressed a letter to the

Inspector General, Drugs Control Administration, Hyderabad, for

the cancellation of license of M/s. Sivani Blood Bank and

requested to pass necessary orders to launch prosecution against

Dr.V.Krishna Murthy. The complainant also sent a letter to A1 to

furnish the particulars of the mode of payment and to furnish the

records of the donors of the blood and the said letter was served

in person, but he has not given any reply. The accused violated

Section 18(c) of Drugs and Cosmetics Act punishable under

Section 27(d) of the Act. He also violated Section 18(c) of Drugs

and Cosmetics Act, read with Section 27 (d) of the said Act.

(iii) The learned III-Additional Chief Metropolitan

Magistrate, Vijayawada, took the case on file under Section 18(c)

read with 27(d) and 18(B) read with 28(D) of Drugs and

Cosmetics Act, 1940. Originally, charges under Section 18 (c)

read with 27(d) and 18 (B) read with 28 (A) were framed and

explained to accused in Telugu, for which they pleaded not guilty

and claimed to be tried.

5) The complainant examined four (04) witnesses i.e.,

P.Ws.1 to 4 and got marked Exhibits P-1 to P-16 and M.Os.1 and

2. The accused denied the incriminating circumstances under

Section 313 of Criminal Procedure Code (Cr.P.C) on examination.

Subsequently, charges were altered as follows before the trial

Court.

(i) The first altered charge is under Section 18(c) read with 27(b)(ii) of Drugs and Cosmetics Act, 1940 and

(ii) The second altered charge is under Section 18(B) read with 28(A) of Drugs and Cosmetics Act, 1940.

6) Both sides did not let in any additional evidence

regarding alteration of charges.

7) The learned III-Additional Chief Metropolitan

Magistrate, Vijayawada, on hearing both sides and on

consideration of oral as well as documentary evidence, found the

guilt of the accused No.1 of charges and convicted him and after

questioning about the quantum of sentence, sentenced him to

suffer rigorous imprisonment for two (02) years and to pay a fine

of Rs.10,000/- (Rupees ten thousand only) in default to suffer

simple imprisonment for two (02) months for the charge under

Section 18 (c) read with 27(b)(ii) of the Drugs and Cosmetics Act

and further sentenced the accused to pay a fine of Rs.500/-

(Rupees Five hundred only) in default to suffer simple

imprisonment for one (01) month for the charge under Section 18

(b) read with Section 28(a) of the Drugs and Cosmetics Act.

However, the learned III Additional Chief Metropolitan Magistrate,

Vijayawada, acquitted A2 i.e., M/s. Sivani Blood Bank, Propriety

concern. Challenging the said order, the appellant No.1 had filed

Criminal Appeal No.10 of 2006, on the file of Metropolitan

Sessions Judge, Vijayawada and the same came to be dismissed

on merits. Challenging the same, the present Criminal Revision

Case is filed.

8) Now in deciding this Criminal Revision Case, the point

that arises for consideration is as to whether the impugned

judgment, dated 06.07.2007 in Criminal Appeal No.10 of 2006,

on the file of Metropolitan Sessions Judge, Vijayawada, suffers

with any illegality, irregularity and impropriety and whether there

are any grounds to interfere with the said judgment?

Point:-

9) Sri Shaik Md. Ismail, learned counsel, representing

learned counsel for the petitioner, would contend that there was

no evidence to prove that accused violated the provisions of

Drugs and Cosmetics Act, 1940. The premises wherefrom the

blood bags were seized was not in exclusive possession of the

accused. P.W.3 admitted that there is a way from his portion to

the place where the blood bags were seized. There was no

evidence that accused was selling the blood bags or those blood

bags were meant for sale. The complainant did not take any

steps to send the seized items to chemical analysis and there was

no evidence that it was human blood. The blood has not come

under the purview of the definition of drug according to the

provisions of Drugs and Cosmetics Act. The learned III-Additional

Chief Metropolitan Magistrate, Vijayawada and the learned

Metropolitan Sessions Judge, Vijayawada, did not appreciate the

case of the petitioner. The blood bags seized would not come

under the purview of drugs as defined under the Act. The room

wherefrom the blood bags were seized could be construed as

godown and petitioner got license to run the blood bank. He

would further submit that the sentence imposed by the Court

below against the Revision Petitioner is excessive. The trial Court

relied on Ex.P12 which was not legally proved. He would submit

that the Criminal Revision Case is liable to be allowed. Learned

counsel for the petitioner would rely upon the decision in Mohd.

Shabir vs. State of Maharashtra1 to support his contention.

10) Sri Y. Jagadeeswara Rao, learned counsel, representing

the learned Public Prosecutor for the State, would submit that the

petitioner filed this Criminal Revision Case against the concurrent

findings of the trial Court as well as Appellate Court. The

complainant adduced cogent evidence before the trial Court and

the judgment of the learned Metropolitan Sessions Judge,

Vijayawada, is with proper reasons, dismissing the appeal and the

(1979) I Supreme Court Cases 568

complainant proved both the charges against the petitioner with

consistent evidence, as such, the Criminal Revision Case is liable

to be dismissed.

11) The case of the complainant, in brief, is that the

accused was running Sivani Blood Bank and he stored 22 filled

blood bags and 60x10 units blood collection bags in a room

situated at the right side of the entrance of Sangha Mitra Clinic

and he had no license whatsoever to store the same at the said

premises. The further allegation is that the accused claimed that

he purchased the same from M/s. Sridevi Diagnostic Distributors,

Miryalaguda and when the complainant enquired, it proved to be

false. Another allegation is that the accused did not maintain any

record and when the complainant required the accused to

substantiate the proof regarding the source of the drugs, he failed

to comply it, as such, he further violated Section 18(B) and

punishable under Section 28(A) of the Drugs and Cosmetics Act.

12) P.W.1 before the Court below is the Drug Inspector.

P.W.2 is the mediator, who accompanied P.W.1 at the time of raid

conducted by P.W.1. P.W.3 is Dr.K. Sudhakar, who was examined

by the complainant to prove that the room where from the blood

bags were seized was in possession of the accused. P.W.4 is the

then Drug Inspector, Nalgonda, who claimed to have made some

enquiry at request of P.W.1 and found that M/s. Sri Devi

Diagnostic Distributers, Miryalaguda is not inexistence.

13) The substance of the evidence of P.W.1 is that on

27.02.2002 on the basis of information provided by the police,

Vijayawada, he along with Sub-Inspector of Police, L & O

Governorpet Police Station and two witnesses B.V. Srinivas and

M. Sudhakar raided the premises of Sanga Mitra Clinic, situated

at D.No.29-19-831, Dornakal Road, Vijayawada. They found 22

filled blood bags and 60x10 units of blood collection bags in a

room measuring about 10x10 at the right side of the entrance of

the said Sangha Mitra Clinic. He seized the blood bags and blood

collection bags under Form-16 under the cover of mediators

report. Ex.P.1 is the copy of Gazette notification to show that he

was authorized to launch prosecution. Ex.P.2 is the copy of

licence of A.2 for running the blood bank. Ex.P.3 is Form-16.

Ex.P.4 is the mediators report and served copies thereof on Dr.

Krishna Murthy (A.1) and he obtained his acknowledgment on

Form-16 and mediators report. Ex.P.5 is the acknowledgement on

Ex.P.3, Form-16. They also acknowledged on Ex.P.4, mediators

report. He intimated the seizure to the Jurisdictional Magistrate.

Then, he enquired Dr. Sudhakar of Dr. Sangha Mtra Clinic about

the premises where the blood bags were seized. Dr. Sudhakar

addressed a letter to him stating that the entire building was

taken by him for rent and the room where the blood bags were

seized was given to Dr. V. Krishna Murthy, Proprietor of M/s.

Sivani Blood Bank and that he (Dr. Sudhakar) is no way

concerned with the activity going on in that room. Ex.P.7 is the

statement of Dr. Sudhakar. Ex.P.8 is the seizure intimation memo

to the Court. A.1 at the time of seizure accepted that the stocks

of blood bags and collection bags belonged to him, but, he has no

license to the said premises. He revealed that he is the Proprietor

of A.2 firm. Then, he (P.W.1) submitted the interim report to the

Additional Director General, Drugs Controlling Administration,

Hyderabad, vide letter, dated 28.03.2002. Ex.P.9 is the letter

reporting the said issue. The Sub-Inspector of Police gave to him

the statements of the professional blood donors. Ex.P.10 is the

letter given by Sub Inspector of Police. Ex.P.11 is the statement

of Palli David Raju. On 28.03.2002 A.1 submitted a certified copy

of the cash memo No.20, dated 24.03.2002 of M/s. Sridevi

Diagnostics Distributors, D.No.20-46, Satuluri Complex,

Islampura Street, Miryalaguda, issued to M/s. Sivani Blood Bank

for 600 empty blood collection bags of batch No.101321. Ex.P.12

is the copy of the invoice submitted by A.1. Then he requested

the Drug Inspector, Nalgonda, to verify the correctness of

Ex.P.12 and the Drug Inspector, Nalgonda, vide letter, dated

06.04.2002, intimated to him that the said M/s. Sridevi

Diagnostic Distributors, Miryalaguda, is not inexistence. Ex.P.13

is the said letter. He further spoken about the so-called cases

booked against A.1 by the Huzurnagar Police at Nalgonda. He

also sent information seeking cancellation of drug licence to A2.

Ex.P.14 is the letter addressed to Additional Director General,

Administration, Hyderabad. He further testified that he addressed

a letter to Dr.V. Krishna Murthy (A.1) under Section 18(B) of

Drugs and Cosmetics Act, requiring him to produce the mode of

payment to the blood collection i.e., the bill, dated 24.03.2002 of

M/s Sridevi Diagnostics Distributors, Miryalaguda and also to

furnish the records and other particulars. Ex.P.15 is the letter.

He got served the said letter on A.1 under acknowledgement,

which is Ex.P.16. A.1 did not give any reply to the said notice.

M.O.1 is the 60x10 units of blood each 350 ml. M.O.2 is

22x1x350 ml. blood bags. The licence was issued to firm at

Dr.No.29-19-85 at Dornakal Road, Vijayawada. A.1 illegally

stored blood collection bags at Dr.No.29-19-831, Dornakal Road,

Vijayawada.

14) P.W.2, the mediator, supported the evidence of

P.W.1. He spoken about the raid conducted by P.W.1 at Sangha

Mitra Clinic, situated at Dornakal Road, S.R. Peta and that they

went to the room at the right side of the clinic and found the

blood bags. He further testified that the presence of A.1 was also

secured at that time and A.1 stated that he has no license to

store the said blood bags there. He further spoken about Form-

16 and seizure.

15) P.W.3 is Dr. K. Sudhakar, who testified that he is

working as Assistant Professor of medicine in Government

General Hospital, Vijayawada. He is running a clinic in the name

of Sangha Mitra Clinic in Dornakal Road, which is rented and

taken the same from one Satyanarayana. He also taken one of

the portions consists of three rooms. He knows accused, who is

his friend. Accused is running M/s.Sivani Blood Bank in the

building, which is one building away from his clinic. Accused also

taken one room by the side of his portion, which was taken from

his owner. The Drug Inspector visited him on 27.03.2002. He

issued Ex.P.7 letter.

16) P.W.4 is the Drug Inspector at Nalgonda, who

spoken, in brief, about his visit of M/s.Sri Devi Diagnostic and

Distributor, Miryalaguda and that he got to the address and found

that the firm is not inexistence. He intimated the same to P.W.1

under Ex.P.13. He further spoken about the so-called case at

Huzurnagar filed against the accused.

17) Now, it is appropriate to refer here the substance of

some important documents exhibited by the complainant.

18) There is no dispute that according to Ex.P.1, P.W.1 is

the Drug Inspector, who is authorized to launch prosecution, etc.

As seen from Ex.P.2, it is Form-28(c) issued to Dr. V. Krishna

Murthy (A.1) to run M/s. Sivani Blood Bank in the premises

situated at Dr.No.29-19-85, Dornakal Road, S.R. Peta,

Vijayawada. It is dated 30.03.2000. The contents of Ex.P.2 are

not in dispute. As seen from Ex.P.3, it is Form-16, showing the

visit made by P.W.1 on 27.03.2002 to Sanga Mthra Clinic,

situated at Dr.No.29-19-831, Dornakal Road, Vijayawada and

that they seized 60x10 blood collection bags each 350 ml. and

22-x1x350 ml. of blood bags. It is purported to have contained

the signature of the accused. It is not in dispute during the cross

examination. Ex.P.4, mediators report, reflects the things that

were happened on 27.03.2002 at Sangha Mitra Clinic and it

supports the evidence of P.Ws.1 and 2. It is said to have

contained the signature of A.1 as a token of acknowledgment.

The evidence of P.Ws.1 and 2 that Form-16 under Ex.P.3 and

mahazarnama under Ex.P.4 were served on the accused by due

acknowledgement, has support from the contents of Ex.P.3 and

Ex.P.4. The evidence of P.W.3 is that he sent a letter to P.W.1

stating that he is running the clinic by name Sangha Mitra Clinic

and he gave to Dr. V. Krishna Murthy (A.1) a room at the right

side thereof on rent. It has support from Ex.P.7. Ex.P.8 is the

seizure intimation to the Court. The complainant got marked

Ex.P.12 stating that it was handed over by the accused to him

stating that he purchased bags from M/s. Sri Devi Diagnostics

Distributors, Miryalaguda. The case of the complainant is that the

address mentioned in Ex.P.12 is proved to be incorrect and no

such Diagnostics is located.

19) Another crucial document from the side of the

complainant is that when the complainant addressed a letter

under Ex.P.15 requesting the accused to furnish the records and

other particulars of donors of 22 blood bags seized by him, he

failed to produce the same. Ex.P.15 is said to have contained the

signature of the accused.

20) During the cross examination of P.W.1, his signatures

on the above referred documents are not denied. He got

suggested to P.W.1 that by threat he obtained the statement of

P.W.3 under Ex.P.7. Nothing is suggested to P.W.3 that he issued

Ex.P.7 letter under threat. Accused had knowledge of the

contents of Exs.P.3 and P.4.

21) The evidence of P.Ws.1 and 2 in my considered view

establishes the fact that the room towards right side of Sangha

Mithra Clinic was in possession of the accused. It is categorically

proved by virtue of the evidence of P.Ws.1 and 3. There is no

dispute according to P.W.3 that the blood bank premises of the

accused is one building away from Sangha Mithra Clinic. In my

considered view, accused would not have kept quiet after signing

Exs.P.3 and P.4, if the contents thereof are false. He would not

have kept quiet having got knowledge of Ex.P.15, if the raid

conducted by P.W.1 along with P.W.2 on 27.03.2002 was false.

22) The evidence on record categorically establishes the

fact that on 27.03.2002 P.W.1 along with P.W.2 conducted a raid

at Sangha Mithra Clinic bearing Door No.29-19-831 and in the

right side of the said clinic, they found 22 filled blood bags

containing human blood and 600 blood collecting bags and they

have seized the same. So, by virtue of the above, the factum of

raid by P.Ws.1 and 2 was proved. Further, the fact that the room

wherefrom the above material was seized was in the possession

of the accused was also proved by the complainant before the

Court below.

23) There is no dispute that by virtue of Ex.P.2, the

premises where the accused was supposed to store the blood is

at Dr.No.29-19-85, Dornakal Road. There is also no dispute that

A.2 was the Propriety concern and A.1 was the Proprietor. These

facts are not at all in dispute.

24) Now, I would like to appreciate the contention of the

Revision Petitioner that the complainant did not prove the seizure

of M.Os.1 and 2 from the conscious possession of the accused. It

is to be noticed that there is categorical evidence of P.W.3

supporting the case of the complainant and his evidence is in

tune with Ex.P.7. P.W.1 denied during cross examination that

hospital and the room where the blood was seized belonged to

P.W.3 and accused is not in exclusive possession. He entered into

the room from the main entrance. He do not remember whether

there are two doorways of the said room. When they reached the

room, the room was locked. A.1 came and unlocked the room.

The above answers elicited from the mouth of P.W.1, goes to

reveal that it is the A1, who unlocked the room.

25) Apart from this, accused elicited certain answers from

the mouth of P.W.3 in cross examination that the room is being

used by their staff and also the staff of the accused and also they

are dumping the scrap belongs to his hospital. He deposed that

he and accused are using the room as common. He admitted

that accused was running blood bank. In another building also,

A.1 is having equipments to keep the blood.

26) In the light of the above answers, the learned

Assistant Public Prosecutor got elicited certain answers by putting

questions which were expected to be put in cross examination

and ultimately he admitted that room was in exclusive possession

of accused and what he deposed in the cross examination earlier

is not correct. Whatever the reason may be for such answers by

P.W.3, but the fact remained is that accused had control over the

room in question. He kept quiet all through having received

Exs.P.3 and P.4 and Ex.P.15. He was physically present for

assisting P.W.1 in unlocking the room. The complainant has

adduced cogent evidence before the Court below that the room

was in exclusive possession of the accused.

27) The accused before the Court below agitated that

Ex.P.12 was not issued by him. It is very difficult to accept such

contention. When the accused was physically present at the time

of visit made by P.Ws.1 and 2 and when he acknowledged

Exs.P.3 and P.4 knowing the contents fully it is quite natural that

P.W.1 asked the accused to provide information as to the source

of obtaining M.Os.1 and 2. So, it cannot be held that Ex.P.12 was

fabricated by the complainant. There is evidence of P.W.4 that

the information provided by the accused in Ex.P.12 proved to be

false. Though Ex.P.12 did not contain the signature of accused,

but, having regard to his presence at the time of raid and his

silence after receiving Exs.P.3, P.4 and P.15, I am of the

considered view that the evidence of P.W.1 that the information

provided by accused in Ex.P.12 proved to be false is believable.

28) It is to be noticed that P.W.1 addressed a letter under

Ex.P.15 requiring the accused to provide information pertaining to

the source of 22 blood bags and mode of payment to purchase

600 bags. Accused having knowledge of Ex.P.15, failed to provide

the requisite information as provided under Section 18(B) of

Drugs and Cosmetics Act. In my considered view, the factual

aspects as averred by the complainant are quietly proved with

consistent evidence. In my considered view, the complainant has

proved the raid conducted by P.W.1 in the Company of A.2 at

Sangha Mithra Clinic bearing Door No.29-19-831 and further

proved the seizure of M.Os.1 and 2 in the room which was in

exclusive occupation of the accused.

29) The further contention of the Revision Petitioner is

that the blood does not come under definition of Drug in view of

Drugs and Cosmetics Act.

30) Section 3(b) deal with the Drug, which runs as

follows:

[(b) "drug" includes--

[(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]

(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of 11 [vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;]

[(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]

31) As seen from the definition of drug, it is inclusive

definition. It is not a narrow definition. While Section 3(b)(i)

includes all medicines for internal or external use of human

beings or animals and all substances intended to be used for or in

the diagnosis, treatment, mitigation or prevention of any disease

or disorder in human beings or animals, the other provisions i.e.,

(ii) (iii) (iv) enumerates other instances where they can be taken

as drugs. Here the clause (iii) is important. So, according to

clause (iii), all substances intended for use as components of a

drug including empty gelatin capsules can be construed as drug.

32) Coming to the case on hand, there is no denial of the

fact that the usage of human blood obtained or collected, clinic is

only for the purpose of transfusion to human beings for the

treatment, mitigation or prevention of any disease. So, it attracts

clause (iii) i.e, all substances intended for use. So, drug need not

be medicine either in the form of tablet or liquid for human

consumption. On the other hand, any substance which can be

used as components of a drug can be construed as drug. Hence,

the contention of the Revision Petitioner that blood cannot be

brought under the purview of drug, deserves no merits. There is

no denial of the fact that presently transfusion of matching

human blood of the same group is now a well known recognized

treatment adopted by the medical profession for treatment and

prevention of certain diseases. Therefore, it is fully understood

by looking into Section 3(b) that human blood comes within the

inclusive definition of drug.

33) Coming to the contention of the revision petitioner

that P.W.1 did not send 22 blood bags seized to the Chemical

examination, P.W.1 during the course of cross examination

deposed that he did not send the blood for report whether the

same was in fit condition for use or whether it is human blood or

not. Nothing was suggested to P.W.1 during further cross

examination that 22 blood bags seized from him was not

containing human blood and it was of a different material. It is to

be noticed that the complainant has categorically proved the

possession of M.Os.1 and 2 with that of accused and it was

further proved that accused stored the same. Having regard to

the above, this Court is of the considered view that when the

nature of the material that was seized from A.1 was not in

dispute, the accused cannot contend that non-sending of 22

blood bags to the Chemical analysis is fatal to the case of the

complainant. In my considered view, such a contention advanced

by the accused before the Court below and before the appellate

Court was negatived by both Courts with proper reasons and I do

not find any merits in this regard.

34) Another contention of the Revision Petitioner is that

the mere possession of M.Os.1 and 2 would not make out any

offence and to constitute the offence under Section 18(c) r/w

27(b)(ii) of the Drugs and Cosmetics Act, complainant should

prove that the accused stocked the blood for the purpose of sale

and there was no evidence adduced by the complainant that it

was meant for the purpose of sale.

35) Admittedly, the language employed in Section 18(c)

coupled with Section 27(b) (ii) of the Drugs and Cosmetics Act is

that it makes an offence if anybody manufactures for sale or for

distribution or sells or stocks or exhibits or offer for sale or

distribute any drug. Here the case of the complainant is that the

premises i.e., room where M.Os.1 and 2 were seized was not

mentioned in Ex.P.2, licence granted to the accused. Absolutely,

Ex.P.2 is not covering the room where M.Os.1 and 2 were seized.

The complainant case is that M.Os.1 and 2 were seized from the

room which was in possession of the accused when they were

stored.

36) In Mohd. Shabir's case (1 supra), admittedly, the

Hon'ble Supreme Court dealing with Section 27 of the Drugs and

Cosmetics Act, held at para No.4 as follows:

"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."

37) This Court has carefully considered the above said

decision. In the above said case, the case of the prosecution is

that the appellant thereof was caught hold at Bhusawal railway

station with 17 plastic containers containing 17,000 white

coloured tablets, for which he had no license. Dealing with the

language employed in Section 27 of the Act, the Hon'ble Supreme

Court held that the possession simpliciter of the articles does not

appear to be punishable under the Act because there was no

evidence that he stocked them for the purpose of sale. In the

above said case, the appellant canvassed the contention that

there was no evidence that he had any shop or he was

distributing agent, as such, there was no possibility to him to

exhibit or to stock for the purpose of sale, etc. The Hon'ble

Supreme Court appreciated the above said contention and held

that the possession simpliciter of the articles does not appears to

be punishable under any of the provisions of the Act.

38) In this regard, before going to appreciate, this Court

would like to clear that the above said contention was also

canvassed before the learned Metropolitan Sessions Judge,

Vijayawada and learned Metropolitan Sessions Judge, Vijayawada

relied upon a decision in Shaik Amir vs. State of Maharashtra2

where the Hon'ble Supreme Court dealing with large quantity of

AIR 1974 SC 469

misbranded drug found in the possession of accused held that it

left no room for about that he had stocked or kept it for sale and

it could not have meant for his personal use. The learned

Metropolitan Sessions Judge distinguished as above and

ultimately held that the accused herein stored the same for the

purpose of sale.

39) Now, coming to the case on hand, even Ex.P.2

discloses that accused had license to run Sivani Blood Bank at the

premises bearing Dr.No.29-19-85, Dornakal Road, Vijayawada.

It is evident from the evidence of P.W.3 that it is one building

faraway from Sangha Mithra Clinic. The facts in Shaik Amir's case

(2 supra) were that the appellant therein had no shop and he was

not a distributing agent. Here, the Revision Petitioner has a

blood bank just nearby Sangha Mithra Clinic. He had possession

over the place wherefrom M.Os.1 and 2 were seized. So, it is

very clear that when the accused was running a blood bank and

stored 22 bags of human blood and further stored 600 empty

blood collecting bags for which he failed to account for the source

of getting those M.Os.1 and 2, no other inference is possible

except the inference that the accused stored the same for the

purpose of sale. Accused would not have stored such huge blood

bags for the purpose of fancy or fun.

40) Storing blood bags is an act on the part of the

accused. Whether he stored it for sale, etc., is to be inferred

from the circumstances only. There would not be any direct

evidence to prove what is there in the mind of the accused in

storing such huge quantity of blood bags. So, the fact that

accused stored the same for sale is to be gathered from the

proven facts only. So, the intention of the accused can be

gathered from the proven facts such as that he has a blood bank

nearby the place where he stored the blood bags and further

looking into possible explanation if any given by the accused.

Accused has no possible explanation. He failed to respond to

request under Ex.P.15. So, all these circumstances, un-erredly

points out that the act of the accused in storing the same is only

meant for sale ultimately. Therefore, in my considered view, the

prosecution has categorically proved the essential ingredients of

Section 27(b)(ii) of the Act.

41) Another contention raised by the Revision Petitioner is

that even otherwise as the accused had a valid licence under

Ex.P.2 to run the blood bank, the place wherefrom the M.Os.1

and 2 were seized could be construed as a Godown. It is very

difficult to accept such contention. The contents of Ex.P.2 are not

in dispute which shows that accused had license to run blood

bank in premises bearing Door No.29-19-85 and complainant

proved the possession of the accused over the room in question

in D.No.29-19-831. So, it cannot be held that the place where

the blood bags were recovered could be presumed to be a

Godown.

42) Turning to the charge under Section 18(B) punishable

under Section 28(A) of the Act, when the complainant addressed

Ex.P.15 to the accused requiring him to provide certain

information with regard to mode of payment to 600 bags and

further necessary material with regard to 22 blood bags, accused

failed to respond. So, the complainant further proved the

violation of Section 18(B) punishable under Section 28(A) of the

Act. Hence, the findings recorded by the learned III Additional

Chief Metropolitan Magistrate, Vijayawada and the learned

Metropolitan Sessions Judge, Vijayawada, does not suffers with

any illegality, irregularity and impropriety.

43) Having regard to the overall facts and circumstances,

this Court is of the considered view that the complainant before

the Court below categorically proved the charges framed against

the accused. In my considered view, the judgment of the learned

Metropolitan Sessions Judge, Vijayawada, does not suffers with

any illegality, irregularity and impropriety.

44) Now, coming to another contention of the revision

petitioner that the sentence imposed against him is excessive,

this Court is of the considered view that as on the date of raid

conducted by P.W.1, the offence under Section 27(b) (ii) 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. Further it is no

doubt true that for the offence punishable under Section 28(A),

the learned III Additional Chief Metropolitan Magistrate,

Vijayawada, imposed fine because the penal provision is

imprisonment or fine. It is a case where this Criminal Revision

Case is pending since 2007. Looking into the age particulars of

the accused furnished by the complainant before the Court below,

at present accused must have been in the age group of 60. Here

the learned III Additional Chief Metropolitan Magistrate,

Vijayawada, for the charge under Section 18(c) r/w 28(b)(ii),

convicted the accused to imprisonment for two years and to pay a

fine of Rs.10,000/-.

45) Having regard to the overall facts and circumstances,

the ends of justice will meet, if the imprisonment imposed against

the petitioner for the charge under Section 18(c) r/w 27 (b)(ii) of

the Drugs and Cosmetics Act, is modified that of one year which

was minimum punishment provided thereof. Having regard to the

same, this Court is convinced to modify the imprisonment

imposed under Section 27(b)(ii) of the Act to that of one year

instead of two years.

46) In the result, the Criminal Revision Case is allowed in

part modifying the sentence of imprisonment imposed against the

Revision Petitioner under Section 18(c) r/w 27 (b)(ii) of the Drugs

and Cosmetics Act as that of one year instead of two years and

the rest of the judgment of the learned Metropolitan Sessions

Judge, Vijayawada, dated 06.07.2007 in Crl.A.No.10 of 2006,

shall stands confirmed.

47) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to the

trial Court and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

petitioner/appellant and to report compliance to this Court.

48) The Registry is further directed to send the copy of

the record along with lower Court record on or before 20.02.2023

without fail. A copy of this order shall be placed before the

Registrar (Judicial) for giving appropriate instructions to the

concerned in the Registry.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU

Dated: 15-02-2023 Note: LR copy be marked.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. REVISION CASE NO.896 OF 2007

Date: 15.02.2023

PGR