M.Appala Raju, vs State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1399 AP

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

        CRIMINAL REVISION CASE NO.1436 OF 2008

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

was the appellant in Criminal Appeal No.12 of 2006, on the file of

I   Additional   Metropolitan   Sessions   Judge,   Visakhapatnam,

challenging the judgment, dated 08.09.2008, where under the

learned I Additional Metropolitan Sessions Judge, Visakhapatnam,

dismissed the appeal filed by the appellant, as such, confirmed

the conviction and sentence imposed against the accused in

C.C.No.290 of 2004, on the file of II Additional Chief Metropolitan

Magistrate, Visakhapatnam. The accused faced charges under

Sections 18(c) r/w 27(b)(ii) and 18(A) punishable under Section

28 of the Drugs and Cosmetics Act before the trial Court. The trial

Court found the accused guilty of the offence punishable under

Section 27(b)(ii) and 28 of the Drugs and Cosmetics Act and

sentenced him to suffer simple imprisonment for one year and to

pay a fine of Rs.500/-, in default to suffer simple imprisonment

for three months for the offence under 27(b)(ii) of the Act and

further sentenced him to pay a fine of Rs.500/-, in default to

suffer simple imprisonment for one month for the offence under

Section 28 of the Act.
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        2)     The   parties   to    this   Criminal     Revision    Case    will

hereinafter be referred to as described before the trial Court for

the sake of the convenience.

        3)     The    State,    represented        by     Drugs      Inspector,

Visakhapatnam, filed a complaint before the trial Court alleging in

substance that the complainant is a Drugs Inspector, appointed

under    Section     21   of   the   Drugs     and      Cosmetics    Act     vide

G.O.Ms.No.670        Health,    Medical      and     Family      Welfare     (L2)

Department, dated 12.12.1988.               He has jurisdiction over the

entire State of Andhra Pradesh and is authorised to launch

prosecution under Section 32 of the Drugs and Cosmetics Act.

        4)     Basing on a telephonic complaint, dated 27.05.2003

against Mr.M.A. Raju (accused) regarding sale of drugs without

licence, the complainant (L.W.1) along with Drugs Inspector,

Anakapalle (L.W.2) and two mediators L.W.3-Mr. K. Srinivasa Rao

and L.W.4-V. Surya Srinivasa Rao raided the premises of

M/s.Gowri       Clinic,   situated     at    D.No.2-17,       Baji    Junction,

Gopalapatnam, Visakhapatnam on 28.05.2003.                    They found one

person       examining    patients    who     disclosed    his    identity    on

questioning as Dr.M.A. Rao (accused), owner of Gowri Clinic. The

clinic is in three rooms. The complainant and party found cartoon

boxes containing drugs like sale packs, Physician samples and
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government hospital drugs.     The government hospital drugs are

meant for government institutions and hospitals for free supply

and supposed to be available only in government institutions. The

complainant questioned the accused regarding source of supply of

drugs. The accused was unable to produce any purchase bills for

the sale packs.   He did not disclose the source of supply of the

hospital drugs and Physician samples as required under Section

18(A) of the Drugs and Cosmetics Act. He revealed that he is not

holding any drug licence for storage of drugs. Hence, complainant

seized the drugs (1-32) in the presence of Drugs Inspector,

Anakapalle and mediators. The drugs particulars were entered in

Form-16 and mediators report was drafted to that effect. The

accused was present at the time of seizure and acknowledged the

receipt of Form-16 and mediators report. The complainant vide

memo,    dated    29.05.2003    informed   the   seizure   to   the

jurisdictional Court, which returned the property with a direction

to produce along with the complaint. Thus, the accused stored the

drugs in his premises without having any licence, as such,

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

Drugs and Cosmetics Act. He further failed to disclose the source

of supply, as such, contravened Section 18 (A) punishable under

Section 28 of the Drugs and Cosmetics Act.
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     5)    The jurisdictional Magistrate took cognizance of the

offences under the above provision of law and after appearance of

the accused and after complying the formalities under Section 207

of the Code of Criminal Procedure ("Cr.P.C." for short) by

following the private warrant procedure, examined P.W.1 and

P.W.2 and deferred the cross examination of P.W.1 and P.W.2 and

then basing on the material available on record, framed charges

under Sections 18(c) r/w 27(b)(ii) and 18(A) punishable under

Section 28 of the Drugs and Cosmetics Act and explained the

same to the accused in Telugu, for which he pleaded not guilty

and claimed to be tried. Then, an opportunity was given to the

accused to cross examine P.W.1 and P.W.2 and after that the

complainant further examined P.W.3.

     6)    Thus, on behalf of the complainant before the trial

Court, P.W.1 to P.W.3 were examined and Ex.P.1 to P.4 were

marked and M.O.1 to M.O.32 were marked.

     7)    After closure of the evidence of the complainant, the

accused was examined under Section 313 of Cr.P.C. with

reference to the incriminating circumstances appearing in the

evidence let in, for which he denied the same and reported no

defence evidence.
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     8)     The   learned   II   Additional   Chief      Metropolitan

Magistrate, Visakhapatnam, on hearing both sides and on

considering the oral as well as documentary evidence, found the

accused guilty of the charges under Sections 18(c) r/w 27(b)(ii)

and 18(A) punishable under Section 28 of the Drugs and

Cosmetics   Act   and   accordingly,   convicted   him    and   after

questioning the quantum of sentence, sentenced him to suffer

simple imprisonment for one year and to pay a fine of Rs.500/-, in

default to suffer simple imprisonment for three months for the

offence under Section 27(b)(ii) of the Drugs and Cosmetics Act

and further sentenced him to pay a fine of Rs.500/-, in default to

suffer simple imprisonment for one month for the offence under

Section 28 of the Drugs and Cosmetics Act.

     9)     Felt aggrieved of the same, the unsuccessful accused

filed Criminal Appeal No.12 of 2006 before the I Additional

Metropolitan Sessions Judge, Visakhapatnam, which came to be

dismissed on merits.

     10)    Felt aggrieved of the same, the unsuccessful appellant

filed the present Criminal Revision Case before this Court,

challenging the judgment, dated 08.09.2008 on the file of I

Additional Metropolitan Sessions Judge, Visakhapatnam.
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     11)    Now, in deciding this Criminal Revision case, the point

that arises for consideration is that as to whether the judgment,

dated 08.09.2008 in Criminal Appeal No.12 of 2006, on the file of

learned I Additional Metropolitan Sessions Judge, Visakhapatnam,

suffers with any illegality, irregularity and impropriety and

whether there are any grounds to interfere with the said

judgment?

POINT:-

     12)    Sri Mohammad Ismail, learned counsel, representing

the learned counsel for the Revision Petitioner, would contend

that the learned appellate Judge did not look into as to whether

the prosecution established the essential ingredients of Section

18(c) r/w Section 27(b)(ii) and Section 18(A) punishable under

Section 28 of the Drugs and Cosmetics Act.        The evidence of

P.W.1 to P.W.3 was interested which was relied upon by the

learned trial Judge as well as the learned appellate Judge without

proper reasons. There was no evidence to show that the so-called

drugs alleged to be seized were meant for sale. There was serious

discrepancy with regard to time at which P.W.1 secured P.W.2

and P.W.3. They did not testify as to the number of boxes that

were found in the alleged premises of the accused. The

complainant did not examine another mediator L.W.4. The
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complainant did not look into the defence of the accused before

the trial Court properly. In support of his contentions, he would

rely upon the judgment of the High Court of Telangana at

Hyderabad in Criminal Appeal No.74 of 2020 and contended that

when there is no evidence to prove the exclusive possession of

the accused over the premises, conviction cannot be sustained.

He would further submit that at any rate the judgment of the

learned I Additional Metropolitan Sessions Judge, Visakhapatnam

in dismissing the appeal filed by the appellant is not proper, as

such, the judgment is liable to be set aside.

      13)   Sri   Y.   Jagadeeswara      Rao,   learned       counsel,

representing the learned Public Prosecutor, would contend that

the accused was found physically by examining the patients when

the raid party entered into the premises of the accused.           By

examining P.W.1 to P.W.3 and by getting marked Ex.P.1 to P.4,

the complainant before the trial Court proved the case of the

complainant beyond reasonable doubt. Accused acknowledged the

receipt of Form-16 and mediators report. He failed to account for

the drugs that were found in his possession. His defence before

the trial Court was not tenable. The trial Court as well as the

appellate Court rightly appreciated the evidence on record, as

such, the Criminal Revision Case is liable to be dismissed.
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        14)   The specific case of the complainant is that the

accused was running Gowri Clinic in the premises bearing Door

No.2-17, Baji Junction, Gopalapatnam, Visakhapatnam.                Having

received an oral complaint that the accused is indulging in selling

drugs without proper licence, complainant secured P.W.2 and

P.W.3 and L.W.4 and conducted a raid and seized 32 cartoon

boxes consisting of the government hospital drugs, drugs meant

for Physician samples and other drugs and the accused did not

account for the source of the drugs, etc. The complainant claimed

that the seizure was reflected in Form-16 and also in the

mahazarnama which was acknowledged by the accused. Hence,

the contention of the complainant is that without having any

licence whatsoever, he stored the drugs under M.O.1 to M.O.32

meant for sale and he failed to disclose the source of supply, as

such,    he   violated   Sections   18(c)   r/w   27(b)(ii)   and    18(A)

punishable under Section 28 of the Drugs and Cosmetics Act.

        15)   P.W.1 deposed the facts in substance that having

received a complaint from unknown person on 27.05.2003 that

the accused is storing drugs without licence at his clinic at Baji

Junction, on 28.05.2003, he along with L.W.2-Drug Inspector,

Anakapalle and two mediators K. Srinivasa Rao and V. Surya

Srinivasa Rao, visited the clinic of the accused in Door No.2-17,
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Baji Junction, Gopalapatnam, Visakhapatnam. The accused was

found examining the patients. They revealed their identity. They

searched the Gowri Clinic premises where he was examining the

patients and found 32 varieties of drugs. They were hospital drugs

not for sale, patient samples not for sale and sale box. They

seized drugs 1 to 32 in Form-16 and mediators report was also

drafted there. They signed in Form-16 and mediators report.

They served copy thereof to the accused, who acknowledged.

Ex.P.1 is the Gazette Notification under which P.W.1 is authorized

to launch prosecution. Ex.P.2 is Form-16. Ex.P.3 is the mediators

report.    Ex.P.4 is the endorsement of the Court on Ex.P.2.     He

informed     the   seizure   to   the   jurisdictional   Magistrate,

Visakhapatnam, who directed him to produce the property at the

time of complaint. He intimated to the Additional Director

General, Drugs, about the seizure. Ultimately, he filed the

complaint on 17.09.2003. The accused stored the drugs without

licence which is violative of Section 18(c) of the Drugs and

Cosmetics Act. During the course of search and seizure, he

enquired the accused about the possession of the drugs and the

accused did not respond about his possession which is violative of

Section 18(A) of the Drugs and Cosmetics Act.
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     16)   Coming to the evidence of P.W.2, the mediator, he

deposed that he is running a medical shop at Baji Junction in the

name and style of Ramachandra Medical Shop. He prepared

Ex.P.3 in the presence of Drugs Inspector at Appalaraju's clinic on

25.08.2004

at 10-00 a.m. The drugs were recovered from the

possession of the accused. M.O.1 to M.O.32 were the drugs taken

by the Drugs Inspector. He affixed slip on the pack with his

signature. The accused did not produce any licence.

17) P.W.3, the Drugs Inspector, Anakapalle, who assisted

P.W.1, deposed that he assisted P.W.1 from 10-00 a.m. to 2-30

p.m. at the premises of the accused on 28.05.2003. He prepared

Form-16 to the dictation of P.W.1, P.W.2 and L.W.4. P.W.2 is the

scribe of panchanama. He (P.W.3) attested Form-16 by signing

all the pages along with P.W.1, P.W.2 and L.W.4. 32 items of the

drugs were seized. Four items among them are the Physician

samples, 19 items among them are the sale boxes and 9 items

among them are government supply drugs. The accused failed to

produce the source of supply of the seized drugs licence and

purchasing bills, etc. P.W.2 attested Form-16.

18) As seen from the evidence of P.W.1 during cross

examination, he approached the mediators at 9-45 a.m. on

28.05.2003 before proceeding to the scene of offence. According

to the evidence of P.W.2 during cross examination, the Peon of

the complainant called him to go to the shop at 10-00 a.m.

According to the evidence of P.W.3 in cross examination, P.W.1

requested P.W.2 and V. Surya Srinivasa Rao about 9-45 a.m. to

follow him. Admittedly, there is a discrepancy with regard to the

time at which P.W.1 secured the presence of P.W.2 and P.W.3.

The above said discrepancy, in my considered view, is not fatal to

the case of the complainant. P.W.2 is no other than the medical

shop owner whose services were utilised by P.W.1 to act as a

mediator. P.W.3 was a Drug Inspector at Anakapalle, whose

services were also requested by P.W.1 to assist him in conducting

raid.

19) As seen from Ex.P.1, P.W.1 was authorized to conduct

raid at Visakhapatnam and he was authorized to launch

prosecution. As seen from Ex.P.2, it contains the signatures of

P.W.1 to P.W.3 and L.W.4 and further the signature of the

accused. The accused acknowledged the receipt of Ex.P.2 Form-

16 by putting his signature and also by affixing his stamp as if he

received copy i.e., Form-16 in four pages. So, the knowledge of

contents of Ex.P.2 can be attributed to the accused. Similarly, as

seen from Ex.P.3, the mediatornama, the accused received copy

of the panchanama in three pages and he signed and affixed his

stamp also. There is no dispute about the receipt of copies of

Ex.P.2 and Ex.P.3 by the accused by putting his signatures with

stamps. So, the accused had knowledge of the contents of Ex.P.2

and Ex.P.3 which disclose that the accused was running his clinic

in Door No.2-17, Baji Junction, Gopalapatnam, Visakhapatnam

and it consists of three rooms.

20) During cross examination of P.W.1, he was called

upon to say about the topographic particulars of the premises, as

such, he testified in cross examination that the building consists

of room facing towards road. There is vacant space at the

terminal point of the building as well as compound wall of the

building. There is a way in between the compound wall and the

Hardware shop and that is the way to reach the clinic. There is

one Anuradha Medical Stores in the building and it is not by the

side of Hardware shop. The said medical stores belonged to the

brother of the accused. There is a wooden partition which can be

visualized, if anybody enters the room. He does not remember

where a push door is appended to the wooden partition to get

inside of the Doctor's room. There is another door to the other

side of the Doctor's room followed by a varandah and a compound

wall of the building. All the doors were kept open when search

was conducted at 10-00 a.m. M.O.1 to M.O.32 were not kept

inside the Doctor's room, but, they were kept in the patients

waiting room. He denied a suggestion that the accused entered

into the premises after they sat in his room and then they briefed

their purpose of visit. One boy was there and he did not enquire

him whether he is a Compounder or someone else. He found

three or four boxes on the bench. He did not enquire either Ayah

or the Sweeper as he did not know them. He denied a suggestion

that the persons who are inimically deposed against the accused

planted M.O.1 to M.O.32 and gave complaint to him. He denied

that keeping M.O.1 to M.O.32 in the premises cannot be

construed as for selling of the property. He denied that he is

deposing false.

21) Turning to the evidence of P.W.2 in cross

examination, he deposed that the accused has been running a

clinic behind Hardware shop. Hardware shop is a part of complex.

There is access all along the complex to go to complex. He did not

observe the things in front room before entering into the Doctor's

room. He denied that he is deposing false. Coming to the

evidence of P.W.3 in cross examination, he deposed that the rear

side of the door of the clinic was shut by that time they entered

into the room. One has to push the door of the middle shop in

order to enter inside the Doctor's room. The accused himself

opened the door of his room. He denied that they planted those

items to file a false case against the accused and accused has

nothing to do with the seized items.

22) During the course of Section 313 Cr.P.C. examination,

the accused specifically admitted the raid conducted by the

complainant along with P.W.2, P.W.3 and another mediator. He

further admitted categorically about the drafting of the

mahazarnama by P.W.2. He further admitted categorically during

Section 313 Cr.P.C. examination questionnaire that he received

copies of Form-16 and mediators report. The defence of the

accused is that drugs were not recovered from his possession. He

put forth a version in Section 313 Cr.P.C. examination that on

that day he came to the clinic at 10-20 a.m. By then, the

complainant along with party was sitting. He questioned them and

they revealed their identity. He questioned them as to why they

came to his clinic. They shown two boxes and stated that the said

boxes belonged to him for which he denied. He denied the

contents of the boxes. Then, the Drugs Inspector clerk brought

K. Srinivasa Rao and V. Surya Srinivasa Rao. He does not know as

to the contents written by them on the document. At 1-20 p.m,

they handed over a paper and threatened to him to put his

signature, as such, he put his signature. So, this is the version of

the accused during Section 313 Cr.P.C. examination.

23) It is not suggested to P.W.1 to P.W.3 in cross

examination that P.W.1 to P.W.3 threatened the accused to put

his signature in Form-16 and mediatornama. On the other hand,

the evidence goes to show that accused comfortably received

copies thereof and put his signature and affixed his stamp. He

did not raise his little finger voicing before any authority that his

signatures were obtained by P.W.1 to P.W.3 by force. According

to the defence of the accused before P.W.1, the persons who are

inimically deposed against him planted M.O.1 to M.O.32 which he

denied. According to his defence before P.W.3, the complainant

party planted M.O.1 to M.O.32 which he denied.

24) It is to be noticed that as evident from the admissions

made by the accused during the course of Section 313 Cr.P.C.

examination, there is no dispute that the accused used to run his

clinic in the premises bearing Door No.2-17, Gowri Clinic, Baji

Junction, Goapalapatnam, Visakhapatnam. The evidence goes to

mean that he had exclusive custody over the three rooms in

which he is running a clinic. He admitted the recovery of M.O.1 to

M.O.32 from his clinic in his Section 313 Cr.P.C. examination.

Therefore, the above answers spoken by the accused during

Section 313 of Cr.P.C. examination may be taken into

consideration according to Section 313 (4) of Cr.P.C. He did not

say anything in Section 313 Cr.P.C. examination that the persons,

who are inimically deposed against him planted M.O.1 to M.O.32,

as suggested to P.W.1. He did not disclose in Section 313 Cr.P.C.

examination that the complainant party planted M.O.1 to M.O.32

in his premises. Therefore, there is no dispute that the accused

had exclusive possession over the premises in question.

25) Turning to the decision of the High Court of Telangana

at Hyderabad in Criminal Appeal No.74 of 2020, it was a case

where the prosecution witnesses 2 and 3 turned hostile to the

case of the prosecution and prosecution did not prove the

exclusive possession of the premises with that of the appellant

therein, as such, the learned Additional Sessions Judge, acquitted

the accused. When the matter was canvassed by way of appeal

before the High Court of Telangana by the State, the appeal was

dismissed appreciating the contention of the respondent that

P.W.2 and P.W.3 turned hostile and complainant did not prove the

exclusive possession of the premises with that of the respondent.

The above facts obviously stood in a different footing from the

facts of this case for the reason that in this case the accused

never disputed his possession over the premises in question and

never disputed about the recovery of M.O.1 to M.O.32, but, put

forth inconsistent versions before P.W.1 and P.W.3 that the

persons, who are inimically deposed against him and the

complainant party planted M.O.1 to M.O.32 respectively.

26) It is to be noticed that the defence of the accused is

that by the time he went to his clinic, he found the complainant

party and they shown two cartoon boxes and asked him as to how

they are and he denied the contents and stated that they are not

belonging to him. Here, the case of the complainant and the

evidence adduced is that by the time the complainant party

searched the premises, the accused was found sitting examining

the patients. It is elicited from the mouth of P.W.1 that there was

a boy in the clinic of the accused. Further it was elicited from the

mouth of P.W.1 that there was a Sweeper in the clinic of the

accused. Hence, in normal circumstances, no one would have any

accessibility to the clinic of the accused before the accused came

there. It is the case of the accused that P.W.1 to P.W.3 entered

into his premises without his knowledge or consent. If that be the

case, he has to probabalise how they gained entry into the

premises even before arrival of the accused. The accused did not

probabalise his contention by examining office boy or the Sweeper

to say that P.W.1 to P.W.3 entered into the premises before his

arrival. When the accused had exclusive control over his clinic, he

cannot contend that the persons inimically deposed against him

planted M.O.1 to M.O.32. His contention before P.W.3 that the

complainant party planted M.O.1 to M.O.32 is not tenable. If that

be the case of the accused, the accused would not have signed in

Ex.P.2 and Ex.P.3.

27) The topographic particulars elicited from the mouth of

P.W.1 go to prove that the accused had exclusive control over the

three rooms in question. It is immaterial as to whether from

where exactly they were seized. However, there is evidence of

P.W.1 that they were found at the patients' waiting room. When

the accused had exclusive possession over the premises in

question, it is for him to explain as to how they were found in his

premises. The accused miserably failed to probabalize his defence

theory.

28) The learned II Additional Chief Metropolitan

Magistrate, Visakhapatnam as well as the learned I Additional

Metropolitan Sessions Judge, Visakhapatnam rightly looked into

various contentions put forth by the accused. There is cogent

evidence adduced by the complainant that M.O.1 to M.O.32 were

recovered from the premises of the accused on which he had

exclusive possession thereof.

29) There is no dispute that under Section 18(c) of the

Drugs and Cosmetics Act, the accused was not supposed to store

M.O.1 to M.O.32 without having proper licence. The complainant

proved the recovery of M.O.1 to M.O.32 in the clinic of the

accused and with what intention the accused stored the same is

to be inferred from the proven facts and circumstances. The

accused was running the clinic by then and he was even

examining patients by the time the complainant conducted a raid.

The accused was not supposed to store the government supply

drugs which were supposed to be in the government hospital. The

accused would not have stored M.O.1 to M.O.32 for fancy

purpose. Under the circumstances, the only inference that could

be drawn is that the accused stored M.O.1 to M.O.32 for the

purpose of sale. Apart from this, according to Section 18(A) of

Drugs and Cosmetics Act, every person not being the

manufacturer, a drug if required shall disclose to the Drug

Inspector from whom he acquired the drug or cosmetic. There is

no dispute that the accused did not reveal the source of supply.

So, the allegations of the complainant which are categorically

proved attracts essential ingredients of Section 18(c) which is

punishable under Section 27(b)(ii) of the Drugs and Cosmetics

Act. Apart from this, they would further attract the essential

ingredients of Section 18(A) punishable under Section 28 of the

Drugs and Cosmetics Act. Both the charges were proved against

the accused before the Court below beyond reasonable doubt.

This Criminal Revision Case against the concurrent findings of the

learned II Additional Chief Metropolitan Magistrate,

Visakhapatnam as well as the learned I Additional Metropolitan

Sessions Judge, Visakhapatnam deserves no merits and the

judgment of the learned I Additional Metropolitan Sessions Judge,

Visakhapatnam cannot be said to be illegal or irregular. It does

not suffer with any impropriety.

30) Having regard to the above, I am of the considered

view that absolutely, there are no grounds to interfere with the

judgment of the learned I Additional Metropolitan Sessions Judge,

Visakhapatnam.

31) In the result, the Criminal Revision Case is dismissed.

32) 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 on or before 21.03.2023 and on such certification, the

trial Court shall take necessary steps to carry out the sentence

imposed against the appellant and to report compliance to this

Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.03.2023.

PGR

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

Registry to circulate a copy of this order to the Court below on or before 21.03.2023.

CRL. REVISION CASE NO.1436 OF 2008

Date: 14.03.2023

PGR