Bombay High Court

Uday Madhavrao Chandratre vs The State Of Mah on 13 August, 2024

2024:BHC-AUG:18593
                                                                    999-revn-445-2004 judg.odt
                                                    (1)


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                         CRIMINAL REVISION APPLICATION NO. 445 OF 2004

                 Uday S/o Madhavrao Chandratre,
                 Age :- 44 years, Occu. Business,
                 R/o. Shivshakti Colony, Dhule
                 Tq. & Dist. Dhule.                              ...Applicant

                       VERSUS

                 1. The State of Maharashtra,
                    copy to be served on Public,
                    Prosecutor in the High Court
                    of Judicature of Bombay Bench
                    At Aurangabad.

                 2. Assistant Commissioner, Food
                    And Drugs Administration,
                    Champa Bag, Sakri Road, Dhule,
                    Tal and Dist. Dhule, through
                    Public Prosecutors, High Court
                    of Judicature of Bombay
                    Bench at Aurangabad.                           ...Respondents
                                                     ...
                  Advocate for Petitioner : Mr. C.C. Deshpande h/f Mr. C.R. Deshpande
                            APP for Respondents/State : Ms. M.N. Ghanekar
                                                     ...
                                                    CORAM : S.G. MEHARE, J.

                                                     DATED : AUGUST 13, 2024

                 ORAL JUDGMENT :-

1. Heard learned counsel for the applicant and learned APP

for the State.

2. The applicant/accused has impugned the judgment and

order of the Chief Judicial Magistrate, Dhule in R.C.C. No.472/1994

dated 21.07.1999 as well as the order of the 2 nd Additional Sessions

Judge, Dhule in Criminal Appeal No.30/1999 dated 06.11.2004.

999-revn-445-2004 judg.odt

3. The applicant was charged for the offences punishable

under Sections 33 EEC (a) and 33 EEC (c) punishable under Sections

33 I (1) (a)(ii) and 33 I (1) (b) of the Drugs and Cosmetics Act, 1940.

4. It was alleged against the applicant that the applicant

was manufacturing spurious 'Gulvel Satva'. He was running the

pharmaceutical firm under the name M/s. Satpuda Pharmaceuticals.

He had appointed the authorized agents for his product. The Drug

Inspector visited one Madhura Agency and found the bottles

containing medicine without any label, and other requisite details.

When the inquiry was made, it was learnt that the applicant was

manufacturing that medicine. The seized product was sent to the

Chemical Analyzer. The Chemical Analyzer submitted the report that

the substance was spurious and substandard. The applicant addressed

a letter Exhibit-28 to the authority admitting that the seized medicine

was manufactured in his company.

5. Both Courts, appreciating the evidence, believed that the

seized medicine 'Gulvel Satva' was manufactured in the

pharmaceutical company run by the applicant, namely M/s. Satpuda

Pharmaceuticals. Holding the accused guilty, the learned Chief

Judicial Magistrate sentenced him to suffer R.I. for one year and a

fine of Rs.2000/- for the offence punishable under Section 33 I (1)(a)

(ii) of the Drugs and Cosmetics Act and sentenced to suffer R.I. for

three years and fine of Rs.5000/- for the offence punishable under 999-revn-445-2004 judg.odt

Section 33 I (1)(b) of the Drugs and Cosmetics Act. The learned IInd

Additional Sessions Judge, Dhule dismissed his appeal and

maintained the conviction and sentence.

6. Learned counsel for the applicant has vehemently argued

that the document Exhibit-28 was relied upon by the prosecution.

However, no opportunity was granted to the applicant to explain it by

way of a question to the accused under Section 313 of the Criminal

Procedure Code. He vehemently argued that when the authorities

visited the manufacturing unit, there was no stock or manufacturing

process of the so-called 'Gulvel Satva'. The medicine 'Gulvel Satva'

was not spurious. He has pressed into service that since the material

evidence/ circumstance was not brought to the notice of the applicant

under Section 313 of the Criminal Procedure Code the entire trial was

vitiated. In the alternative, he prayed that Section 33 of the Drugs and

Cosmetics Act provides for passing the order less than one year for

special reasons. He would argue that the Court, by way of adequate

and special reasons, may impose a sentence of imprisonment for a

term less than one year and a fine less than Rs.50,000/- or three

times whatever is more. In alternative, he prayed for extending the

benefit of the Probation of Offenders Act. To bolster his argument, he

relied on a few case laws that would be referred in later part of the

judgment.

999-revn-445-2004 judg.odt

7. Learned APP has strongly opposed the application. She

would submit that the letter Exhibit-28 was never impugned. It was

an admission letter of the applicant that the so-called product seized

was manufactured in his factory. Since it was admitted to the

accused, no such question was required to be asked to him under

Section 313 of the Criminal Procedure Code. After seizing the

manufacturing product from the medical shop, time was spent. So,

probably in the meantime, the applicant might have stopped

manufacturing 'Gulvel Satwa'. There were no substantial grounds to

warrant or interfere with the impugned judgment and order. There is

no adequate or special reason to impose a penalty less than one year

which was minimum punishment for the offence punishable under

Section 33 EE (A) of the Drugs and Cosmetics Act. She would submit

that the case laws relied upon by the applicant could not be applied as

those are on different facts. She has vehement arguments that in no

case to exercise the discretion to impose a sentence of less than one

year. Since the question, as alleged was not put to him under Section

313 of the Criminal Procedure Code, the proceeding is not vitiated.

8. Perusal of document Exhibit-28 reveals that it was a letter

addressed to the authority by the applicant. It was an explanation of

the chemical analysis report. The applicant has expressly admitted

that the seized medicines were manufactured in his company. It was

an admission of the offence.

999-revn-445-2004 judg.odt

9. Section 313 of the Criminal Procedure Code provides for

the power to examine the accused. To enable the accused personally,

the Court should explain the circumstances appearing in the evidence

against the accused. His statement under Section 313 may be

recorded at any stage without previously warning the accused by

putting the question to him or after the prosecution witnesses have

been examined. It is a settled principle of law that the circumstances

which, according to the prosecution, lead to prove the guilt of the

accused must be put to him in his examination of the accused under

Section 313. The purpose of examining the accused is to enable him

personally to explain the circumstances appearing in the evidence

against him. The accused also has right to examine the defence

witness. In the absence of admission of the accused when the

prosecution led the evidence of prove of guilt, such incriminating

question should not be excluded from Section 313 statement.

Reading the object of Section 313 of the Criminal Procedure Code,

this Court is of the view that the admission is the best evidence

against the accused. Since the document Exhibit-28 shows the

admission of manufacturing of the 'Gulvel Satva' with chemical

analysis report as it was spurious, the prosecution need not prove it. It

was an explanatory document. The applicant was well aware of the

statement he made in Exhibit-28. Since the facts were admitted, the

prosecution was not required to prove it. The admission was within 999-revn-445-2004 judg.odt

the knowledge of the applicant. Therefore, mere non-asking the

question of those facts under Section 313, would not vitiate the

proceeding.

10. Learned counsel for the applicant relied on the judgment

of the Hon'ble Supreme Court in the case of Naresh Kumar Vs. State

of Delhi, Criminal Appeal No.1751 of 2017 dated 08.07.2024. The

Court has discussed the object of Section 313 of the Criminal

Procedure Code. The law is also well settled that mere

defective/improper examination under Section 313 of the Criminal

Procedure Code would be no ground to set aside the conviction of the

accused unless it has resulted in prejudice to the accused. Based upon

the fact discussing with Section 313 of the Criminal Procedure Code,

the Hon'ble Supreme Court held in para 15 that 'a bare perusal of the

provisions under Section 313, Cr.PC, extracted above, would

undoubtedly reveal the irrecusable obligation coupled with duty on

Court concerned to put the incriminating circumstances appearing in

the prosecution evidence against accused concerned facing the trial

providing him an opportunity to explain.' Here, the facts of the case

are different. Hence, the said judgment would not assist the applicant.

11. Learned counsel for the applicant argued that soon after

the incident, the applicant had closed down the manufacturing. He is

now 66. His wife is suffering from cancer. It was a solitary incident.

Therefore, the benefit of the Probation of Offenders Act may be 999-revn-445-2004 judg.odt

extended to him. He further argued that there were circumstances to

reduce the sentence below one year, which is a minimum conviction.

12. To bolster the case of benefit of the Probation of

Offenders Act, he relied on the judgment of the Hon'ble Supreme

Court in the case of Umrao Singh Vs. State of Haryana, Criminal

Appeal No.404 of 1981 (Arising out of S.L.P. (Cri.) No.965 of 1981)

dated 10.04.1981, Tarak Nath Kesari Vs. State of West Bengal,

Criminal Appeal No.1444 of 2023 (Arising out of SLP (Cri) D

No.28476 of 2018) dated 10.05.2023. In this case, the Hon'ble

Supreme Court held that even if there is a minimum sentence

provided in Section 7 of the Essential Commodities Act, in our

opinion, the appellant is entitled to the benefit of probation, the EC

Act, being of the year 1955 and the Probation of Offenders Act, 1958

being later. Even if a minimum sentence is provided in the EC Act,

1955, the same will not be a hurdle for invoking the applicability of

provisions of the Probation of Offenders Act, 1958. The Hon'ble

Supreme Court referred to the case of Lakhvir Singh Vs. The State of

Punjab and Ors, (2021) 3 SCC 763 . He further relied on the judgment

of the High Court of Goa in the case of State of Goa Vs. Shri

Laxmikant N. Vaidya, Criminal Appeal No.64 of 2003 dated 27 th

August/2nd September, 2004. It was a case under the Drugs and

Cosmetics Act, 1940. Bearing in mind the facts of the case, the Court

held that the accused was entitled to the benefit of Section 4 of the 999-revn-445-2004 judg.odt

Probation of Offenders Act. He also relied on the case of Indrakunwar

Vs. The State of Chattisgarh, 2023 LiveLaw (SC) 932 . The applicant

as argued before the Court has undergone one year S.I. and fine. The

fine amount has been deposited.

13. The Hon'ble Supreme Court in Umrao Singh (Supra)

observed that the High Court itself felt bound to award the minimum

sentence but on merits, was satisfied that if the legal position

warranted, the appellant could be given a lesser sentence. We, are in

agreement with the view of the High Court. The appellant/petitioner

is aged about 70, and suffering from asthama illness and has a clean

past record. Considering the percentage of deficiency, the Hon'ble

Supreme Court reduced the sentence of the period already

undergone. There are two verdicts. One is on reducing the sentence,

and another is on extending the benefit of the Probation of Offenders

Act. In view of the ratio laid down in the case of Tarak Nath Keshari

(supra), there is no impediment exercising the powers under the

Probation of Offenders Act, though minimum sentence has been

provided in the Act. The age factor has been considered in the case.

The post-incident conduct of the accused is also one of the grounds

for thinking about the benefit of the Probation of Offenders Act. The

another fact that may be considered is non-involvement of the

accused for the same offence after the crime was registered against

him.

999-revn-445-2004 judg.odt

14. Considering the age, closing down the business and no

bad past of the applicant, though the learned APP is insisting on

reducing the sentence instead of granting Probation of Offenders Act,

the Court is of the view that the view of the Hon'ble Supreme Court in

the case of Tarak Nath Keshari (supra) could be appropriately applied.

She is right in pointing out that both Courts did not err in law in

holding the accused guilty. Hence, the following order :

ORDER

(i) Criminal Revision Application is partly allowed.

(ii) The judgment and order of the Chief Judicial Magistrate,

Dhule, in R.C.C. No.472/1994 dated 21.07.1999 as well

as the order of the 2nd Additional Sessions Judge, Dhule

in Criminal Appeal No.30/1999 dated 06.11.2004 stand

maintained. However, instead of sentencing him at once

to the punishment, it is expedient to release him on

probation of good conduct.

(iii) The applicant be released on executing the bond for one

year of Rs.10,000/- (ten thousand only) with an

undertaking to appear and receive the sentence when

called upon during the said period, and in the meantime,

he should keep peace and good behaviour.