Himachal Pradesh High Court
Thakur Clinic vs State Of Himachal Pradesh on 31 October, 2022
Bench: Satyen Vaidya
1
REPORTABLE/NON-REPORTABLE
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 31st DAY OF OCTOBER, 2022
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:
r to
CRIMINAL REVISION PETITION NO. 290 of 2014
PURAN CHAND, S/O SH. AJIT SINGH, M/S
THAKUR CLINIC, VILLAGE AND POST OFFICE,
BALDUHAK, TEHSIL NADAUN, DISTRICT
HAMIRPUR, H.P.
.....PETITIONER
(BY MR. N.K THAKUR, SENIOR ADVOCATE WITH
MR. DIVYA RAJ SINGH, ADVOCATE )
AND
STATE OF HIMACHAL PRADESH.
........RESPONDENT
(BY MR. DESH RAJ, ADDITIONAL ADVOCATE
GENERAL WITH MR. MANOJ BAGGA,
ASSISTANT ADVOCATE GENERAL)
RESERVED ON : 20.10.2022
DECIDED ON : 31.10.2022
::: Downloaded on - 31/10/2022 20:33:02 :::CIS
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This petition coming on for pronouncement of
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judgment this day, the Court passed the following:-
ORDER
By way of instant Revision petition, petitioner has
challenged the judgment dated 28.08.2014, passed by learned
Additional Sessions Judge, Hamirpur, H.P. in Cr. Appeal No. 56 of
2011, whereby judgment dated 29.8.2011 passed by learned
Judicial Magistrate First Class, Nadaun, District Hamirpur in case
No. 40-1 of 2008 convicting and sentencing petitioner for offences
under Section 27(b)(ii) and Section 28 of Drugs and Cosmetic Act,
1940 has been affirmed.
2. The Drug Inspector, Hamirpur, H.P. filed Complaint
No. 40-1/2008 against petitioner alleging inter-alia that petitioner
was found selling, stocking and exhibiting for sale allopathic drugs
without valid license. As per Drug Inspector, he inspected the
premises of petitioner on 04.04.2006 and found petitioner running
a Clinic-cum- Medical Store under the name and style of M/s
Thakur Clinic at Village and Post Office Balduhak, Tehsil Nadaun,
District Hamirpur, H.P. Large number of allopathic medicines were
found in the business premises of petitioner being exhibited for
sale. Petitioner could not produce valid license for such exhibition
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or sale of allopathic drugs. The Drug Inspector, seized all
allopathic drugs found in the premises of the petitioner. Prepared
its inventory in Form No.16 and sealed them in two separate
cardboard cartons. Independent witnesses were associated, in
whose presence seizure and sealing procedure was concluded.
Later, petitioner was afforded an opportunity by Drug Inspector to
submit the license, if any, to exhibit for sale allopathic drug, but
the petitioner failed to do so, hence the complaint for commission
of offences under Section 18(c) and 18-A of Drugs and Cosmetics
Act, 1940.
3. The Drug Inspector examined himself and three other
witnesses to prove the allegation against the petitioner. CW-2
Chaman Lal, CW-3 Sukh Dev and CW-4 Rakesh Kumar, were
examined as independent witnesses, but none of them supported
the prosecution case. Petitioner was examined under Section 313
of Cr.P.C. Petitioner also examined one Subhash Chand as
defence witness.
4. Learned Trial Court convicted the petitioner for
commission of offence under Section 27(b)(ii) of Drugs and
Cosmetics Act, 1940 and sentenced him to undergo rigorous
.
imprisonment for one year and to pay fine of Rs. 5,000/-. In
default of payment of fine to further undergo simple imprisonment
for three months. Petitioner was also convicted for offence under
Section 28 of the Act, ibid and was sentenced to undergo simple
imprisonment for six months and to pay fine of Rs. 1,000/-. In
default of payment of fine to further undergo simple imprisonment
for one month. The substantive sentences were ordered to run
concurrently.
5. Petitioner challenged the judgment of conviction and
sentence passed by learned Trial Court by filing an appeal under
Section 374 of Code of Criminal Procedure, but remained
unsuccessful. Learned Additional Sessions Judge, Hamirpur,
dismissed the appeal of the petitioner vide impugned judgment
and affirmed the conviction and sentence imposed by learned
Trial Court.
6. I have heard learned counsel for the parties and have
also gone through the record.
7. Learned Trial Court convicted the petitioner on the
sole testimony of the complainant/Drug Inspector. It was held that
the petitioner had failed to prove any purpose or motive with the
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Drug Inspector to falsely implicate him, therefore, the testimony
of the complainant/Drug Inspector could not be doubted.
8. Learned Appellate Court while affirming the findings
returned by learned Trial Court further held that the independent
witnesses, though had turned hostile, their testimonies could not
be discarded as a whole as these witnesses had admitted their
signatures on recovery memo Ext. CW-1/D and the sealed boxes
Ext. CW-1/E-1 and E-2 and further had failed to render any
plausible explanation for having signed such documents. Finding
corroboration to the version of complainant from statements of
witnesses CW-2 to CW-4 in aforesaid manner, learned Appellate
Court affirmed the conviction and sentence of the petitioner as
imposed by learned Trial Court.
9. Learned counsel for the petitioner has contended that
the judgments passed by both the Courts below suffer from grave
illegality being against cardinal principles of criminal
jurisprudence. He submitted that the prosecution had failed to
prove its case beyond all reasonable doubts.
10. On the other hand, Mr. Desh Raj Thakur, learned
.
Additional Advocate General has supported the judgments
passed by learned Courts below on the ground that the
conclusion as to guilt of the petitioner has been rightly drawn
after appreciation of evidence.
11.
The case as set-up by Drug Inspector was that he
visited the business premises of the petitioner on 04.04.2006.
Initially, he was alone. He found allopathic drugs exhibited for
sale in the business premises of the petitioner without any license
or permission.
12. Complainant/Drug Inspector examined himself as
CW-1. In his examination-in-chief, CW-1 remained totally silent
as to at what stage and in what manner, he associated the
independent witnesses. He only stated that he made an inventory
of the allopathic drugs found from the store of the petitioner in
Form No.16. The seized drugs were sealed in two separate
cardboard cartons in presence of the witnesses who appended
their signatures on such boxes.
13. CW-1 did not state that he had seized allopathic
drugs in presence of witnesses and that the witnesses had
signed inventory Form No. 16, Exhibit CW1/D. Perusal of the
.
document Ext. CW1/D reveals that this document runs in two
pages and the contents written on second page are in fact on the
reverse of first page. The signatures of Sukh Dev are on top left
margin of first page and signatures of Caman Lal are on the
bottom of the first page on left side. Signatures of Rakesh Kumar
are on the bottom of second page on left side. Thus, there is no
set pattern of getting the signatures of the witnesses on the
document. It appears that either the witnesses were made to sign
Ext. CW1/D at such places where some spaces were left after
writing its contents or the signatures were so obtained on blank
papers so as to have sufficient blank space to scribe the contents
at ease. Had the document been written in presence of
witnesses, the scribe must be mindful of the fact that it was being
witnessed by others who were also to sign the same. With such
thought in mind sufficient and proper space would have been left
for witnesses to append their respective signatures on each of
the page. The manner of execution of document creates doubt
regarding seizure being made in presence of independent
witnesses. CW-2 to CW-4 have stated that no recovery was
affected in their presence and their signatures were taken
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subsequently. As per CW-2, he had signed Ext. CW1/D and other
documents at Sharma Medical Store, Hamirpur and document
was blank, when he had appended his signature thereon.
Similarly, CW-3 has rendered the explanation that he had signed
the document Ext. CW1/D at District Hospital, Hamirpur, H.P. on
the asking of a Medical Representative named as Rinku. CW-4
Rakesh Kumar also stated that he had signed blank document in
good faith.
14. To prove the signatures of witnesses on a document
is quite distinct from proving the authenticity of contents of the
documents. It has to be suggestive from all attending
circumstances that the witnesses had appended their signatures
on the document after witnessing the facts detailed therein. The
purpose of association of independent witnesses in a criminal
investigation is to lend authenticity to the version of the
prosecution. Thus, keeping in view the entirety of attending
circumstances, explanation rendered by CW-2 to CW-4 for
appearance of their signatures on document Ext. CW1/D and Ext.
CW-1/E-1 to CW-1/E-2 could not have been brushed aside lightly.
15. Even otherwise, document Ext. CW1/D needs to be
.
looked at with circumspection for the reason that CW-1 did not
state that that he had incorporated the factum of the seizure of
documents Ext. CW-1/C-1 to C-27 in memo Ext. CW1/D, nor had
such fact been suggested to CW-2 to CW-4 while being cross-
examined by complainant. Noticeably, such insertion at serial No.
31 of page No.2 of document Ext. CW-1/D, on the face of it,
appears to been made subsequently. This apparently has been
done to overcome the omission to prepare separate memo
regarding recovery of documents Ext. CW1/C-1 to C-27. Had the
Drug Inspector carried his inspection in the presence of
independent witnesses, the seizure of documents Ext. CW1/C-1
to C-27 would also have been in presence of such witnesses.
Such hypothesis is, however, belied by the fact that documents
Ext. CW1/C-1 to C-27 do not bear the signatures of any of the
independent witnesses. Further, it has also not been proved that
the documents Ext. CW-1/C-1 to C-27 were either in the
handwriting of petitioner or were prepared under his instructions.
16. Another fact that cannot be brushed aside is that out
of three independent witnesses, two witnesses i.e. CW-3 and
CW-4 were not from the same village what to talk of same
.
locality. There is no explanation, as to how, the Drug Inspector
was able to procure the presence of witnesses who evidently
were from other villages. There is also no explanation as to why,
the petitioner did not associate the witnesses from same locality.
This again creates doubt on the story put forth by Drug Inspector.
17. Prosecution carried a very heavy burden to prove its
case beyond all reasonable doubts. This could only be possible
had the evidence produced by it been so confidence inspiring as
to negate the possibilities of all other hypothesis than the guilt of
accused. However, in light of observations made hereinabove,
there were many gaps in the prosecution story which remained
unexplained. Thus, when two views appear to be possible, the
view favourable to the accused has to be given precedence.
18. In light of above discussion, the revision petition is
allowed. Judgment dated 28.08.2014, passed by learned
Additional Sessions Judge, Hamirpur, H.P. in Cr. Appeal No. 56 of
2011 and judgment dated 29.8.2011 passed by learned Judicial
Magistrate First Class, Nadaun, District Hamirpur in case No. 40-
1 of 2008 convicting and sentencing petitioner for offences under
Section 27(b)(ii) and Section 28 of Drugs and Cosmetic Act, 1940
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are set-aside. Petitioner is acquitted of all the charges.
19. The petition is accordingly disposed of, so also the
pending miscellaneous application(s), if any.
31st October 2022
(sushma)
r to ( Satyen Vaidya )
Judge
