Ravi Dutt vs State Of Himachal Pradesh
2023 Latest Caselaw 2009 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.357 of 2021 Decided on: 9th March, 2023

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    Ravi Dutt                                                         .....Petitioner




                                                                                   .

                                               Versus

    State of Himachal Pradesh                                     .....Respondent

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Coram

Ms. Justice Jyotsna Rewal Dua

Whether approved for reporting? 1 Yes.

For the Petitioner:

For the Respondent:

r to Mr. Sanjay Jaswal, Advocate.

Mr. Y.P.S. Dhaulta, Additional Advocate General.

Ms. Parul Thakur, Drug Inspector, HQ Dehra, District Kangra, present in person.

------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge

Learned Trial Court on 23.06.2012 convicted the

petitioner for commission of offence punishable under

Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (in

short 'the Act'). The petitioner was sentenced to undergo

simple imprisonment for a period of one year and to pay a

fine of Rs.5000/-. In default of payment of fine, he was to

further undergo simple imprisonment for a period of three

months. Petitioner's appeal against the judgment of

conviction and order of sentence dated 23.06.2012 and 1 Whether reporters of print and electronic media may be allowed to see the order?

29.06.2012, respectively, was dismissed by the learned 1st

Appellate Court on 03.05.2019. In the aforesaid

circumstances, the petitioner has assailed the above two

.

judgments in the instant revision petition.

2. Facts in nutshell are that:-

2(i). On 30.12.2004, the Drug Inspector in

performance of his official duties, inspected premises of M/s

Bhardwaj Clinic, Fatehpur, District Kangra. The inspection

was carried out in presence of police official HHC Bishamber

Singh (PW2), Parkash Chand-Employee in the office of Chief

Medical Officer (CMO), Kangra at Dharamshala (PW3),

Satish Singh (PW1) and Mukesh Kumar-present there at the

relevant time. The petitioner was found present in the clinic

at that time. He represented himself to be the proprietor

thereof.

During inspection, several allopathic drugs were

found to have been stocked for sale in the clinic. The

petitioner could not produce Drugs Licence to stock

allopathic drugs for sale. Petitioner also could not produce

any valid Registered Medical Practitioner Certificate to

practice allopathic system of medicine. The allopathic drugs

found in the clinic were seized and collected in the box

named as Fatehpur-I (Ext. P). The box was sealed with seal

'NK'. Entry of the drugs was made in Form No.16 (Ext.

PW4/B). The petitioner appended his signatures on the

aforesaid exhibits. A copy of Form No.16 signed by the

.

witnesses, the complainant and the petitioner was also given

to the petitioner/accused. After completing the codal

formalities, the complaint under Section 27(b)(ii) of the Act

was lodged.

2(ii). Learned Trial Court framed notice of accusation

against the petitioner for commission of offence under

Section 27(b)(ii) of the Act. The petitioner pleaded not guilty

and claimed trial.

2(iii). The complainant examined himself as PW4,

Parkash Chand (Employee of CMO Office, Kangra at

Dharamshala) as PW3, HHC Bishamber Singh as PW2 and

Satish Singh (independent witness) as PW1. Documentary

evidence was also adduced.

2(iv). The petitioner/accused examined his father-

Sh. Kishan Chand as DW1. Certificate of practicing as

Registered Medical Practitioner statedly issued in favour of

petitioner's father alongwith receipts of alleged renewal of

this Medical Practitioner Certificate, were produced as Ext.

DW1/B to Ext. DW1/D.

2(v). Learned Trial Court after appreciating the oral

as well as documentary evidence produced by the parties,

held that the complainant had succeeded in establishing

.

guilt of the petitioner beyond all reasonable doubts. The

petitioner was accordingly convicted for commission of

offence punishable under Section 27(b)(ii) of the Act in terms

of the judgment dated 23.06.2012 and vide order dated

29.06.2012, was sentenced to undergo simple imprisonment

for a period of one year and to pay a fine of Rs.5000/- with

default clause. As observed earlier, learned 1st Appellate

Court has affirmed the judgment and order passed by the

learned Trial Court vide its judgment dated 03.05.2019.

3. I have heard learned counsel for the petitioner

and learned Additional Advocate General for the respondent-

State.

4. Learned counsel for the petitioner submitted

that the judgments and order passed by the learned Courts

below are against the facts and applicable legal position.

That PW2 to PW4 were interested witnesses and had

conspired against the petitioner. PW3 in his cross-

examination, specifically stated that before entering the

clinic of the petitioner, the inspecting team had already

registered three or four cases and had been carrying the

case properties with them, whereas, statements of PW2 and

PW4 differ on this aspect. Learned counsel further stated

that in terms of the complaint and the statements made by

.

the prosecution witnesses, 7/8 patients were there in the

clinic at the time of inspection, however, none of the

patients were made witnesses in the case. Learned counsel,

therefore, contended that there was no legal evidence to

connect the petitioner with the allegations levelled against

him in the complaint. The judgments and order passed by

the learned Courts r below suffer from illegality and

irregularity. Hence, intervention of this Court is called for.

Prayer was accordingly made for accepting the revision

petition.

Learned Additional Advocate General defended

the impugned judgments. It was submitted that the

presence of petitioner in the clinic at the relevant time

stands proved on record. Petitioner had appended his

signatures on Form No.16. The recovery of allopathic drugs

from the premises, thus, stands established. The petitioner

had not offered any explanation regarding these aspects in

his statement under Section 313 of the Code of Criminal

Procedure (Cr.PC). The case against the petitioner was

proved beyond doubt, hence, both the learned Courts below

justly convicted and sentenced him for the offence

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

5. Observations:-

.

Having considered the rival submissions

advanced on both sides and after going through the record,

it becomes apparent that the complainant and the

prosecution witnesses have been able to prove their case

against the petitioner.

5(i). Complainant had inspected the clinic in

question alongwith Police Official HHC Bishamber Singh and

a Health Department Official-Parkash Chand. Two

independent witnesses, namely Satish Singh and Mukesh

Kumar, were also associated during inspection of the

premises. Mukesh Kumar though was given up by the

prosecution, however, Satish Singh was examined as PW1.

Bishamber Singh (PW2), Parkash Chand (PW3) and Satish

Singh (PW1) in their statements, corroborated the statement

of the complainant (PW4).

5(ii). Though there is some inconsistency in the

statement of Parkash Chand (PW3) and therefore, he was

declared hostile, however, it is well settled principle that

statement of hostile witness is not to be thrown out in its

entirety simply on the ground that he had turned hostile.

The statement, which is in conformity with the case of the

complainant, can be taken into consideration to lend

corroboration to the case of the complainant.

.

Constitution Bench of Hon'ble Supreme Court in

Criminal Appeal No.1669 of 2009 (Neeraj Dutta Versus

State (Government of NCT of Delhi), decided on 15th

December, 2022, observed that there is no legal bar to raise

a conviction upon 'hostile witness' testimony if corroborated

by other reliable evidence. The fact that a witness has been

declared 'hostile' does not result in automatic rejection of his

evidence.

Satish Singh (PW-1) was joined by the

complainant in the proceedings. He had signed Form No.16

alongwith the box containing the drugs. Satish Singh stated

that he was running a tea stall at Fatehpur. That on

30.12.2004, the petitioner was sitting in the clinic at the

time of its inspection by the complainant-Drug Inspector.

Though this witness denied that in his presence, allopathic

drugs were taken into possession from the clinic of the

petitioner and that Form No.16 was prepared and the drugs

were put in the box (Ext. P), but the fact remains that this

denial is of no consequence as he had admitted his

signatures over Form No.16. This witness had also admitted

that the Drug Inspector alongwith the police official had

visited the clinic on 30.12.2004 and the petitioner was

present in the clinic at that point of time. The witness had

.

also admitted that the petitioner used to treat patients. The

witness has not offered any explanation as to why he had

signed the documents. The signatures of this witness, in

English, at Ext. PW3/A on Form No.16, show that he is

literate person. It cannot be expected that he would sign the

documents without reading the same. It is, thus, obvious

that Satish Singh (PW1) had participated in the proceedings

at the spot and in the manner stated by the complainant

(PW4), HHC Bishamber Singh (PW2) and Parkash Chand

(PW3).

5(iii). The alleged inconsistency in the statements of

PW2, PW3 and PW4, pointed out by learned counsel for the

petitioner in respect of number of seizures made by the

complainant before carrying out the inspection of the

premises in question, does not help the petitioner at all.

Firstly, there appears to be no inconsistency between the

statements of these three witnesses. PW2-Bishamber Singh

during his cross-examination, stated that no medicines were

seized from the shops inspected by the team led by the

complainant prior to carrying out the inspection of the

premises of the petitioner. PW3-Parkash Chand simply

stated that some shops were inspected prior to the

inspection of the clinic in question, however, he expressed

.

his inability to recollect the fact about seizure of any

medicines during the inspection of such shops. The

complainant (PW4) categorically stated that though

medicines were seized even on the day of inspection of the

premises in question, however, no seizure was made prior to

inspecting petitioner's premises. All the witnesses are

unison in their version that there had been no seizure of

medicines from any of the shops inspected by the inspecting

team prior to the inspection of petitioner's premises.

Secondly, in any case, such statements even if held to be

inconsistent, are not that material in the facts of the case,

where petitioner's presence at the spot, his projection of

himself as the proprietor, his treatment of the patients

sitting there with allopathic drugs and recovery of allopathic

medicines without there being any authorization to stock

and sell the same are established.

5(iv). The contention of the petitioner of prosecution

having not examined any patient present in the premises

will not advance his case in the facts and circumstances,

where the prosecution has been able to prove its case

against the petitioner from the statements of PW1 to PW4.

The statement of the petitioner/accused under Section 313

Cr.PC only strengthens the case against him.

.

5(v). It will also be appropriate to refer to the decision

of Hon'ble Supreme Court in (2019) 13 SCC 670 (State

represented by the Drugs Inspector Versus Manimaran).

The appeal before the Hon'ble Apex Court arose out of the

judgment passed by the Hon'ble High Court, whereby the

conviction of the respondent/accused under Sections

27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 was

set aside. The Apex Court held that the High Court ought

not to have interfered with the concurrent findings given by

the learned Courts below in exercise of its revisional

jurisdiction. The revisional jurisdiction of the High Court is

different from the appellate jurisdiction. The High Court will

not normally interfere with the concurrent findings of fact,

unless the same are perverse or the Court has ignored the

material evidence while arriving at the finding. The relevant

extract from the judgment reads as under:-

"15. Upon consideration of the evidence, both the trial court as well as the first appellate court convicted the respondent under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act. When there are concurrent findings by the courts below, the High Court ought not to have interfered with the same in exercise of its revisional jurisdiction. The revisional jurisdiction of the High Court is different from the appellate jurisdiction. The High

court will not normally interfere with the concurrent findings of fact, unless the findings of fact arrived at by the courts below are perverse or that the court has ignored the material evidence while arriving at that finding.

16. As held in State of Kerala v. Puttumana Illath

.

Jathavedan Namboodiri, ordinarily it would not be

appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal.

When the courts below recorded the concurrent findings of fact, in our view, the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained."

In view of law and proved facts, the conviction of

the petitioner under Section 27(b)(ii) of the Act cannot be

faulted.

6. Insofar as the sentence of imprisonment is

concerned, as per proviso to Section 27(b)(ii) of the Act, for

any adequate and special reasons to be recorded in the

judgment, the Court may impose sentence of imprisonment

for a term less than one year and a fine of less than

Rs.5000/-. In the instant case, the offence was committed

on 30.12.2004. Almost 19 years have gone by. The

petitioner has deposited the fine amount imposed upon him

by the learned Trial Court. It is not in dispute that the

petitioner/accused was not having any prior conviction

under the Act. The defence of the petitioner had been that

his father was running the clinic and had a Certificate of

Registered Medical Practitioner for Ayurvedic and Unani

(Homeopathic) Medicines at one point of time, i.e. during

the year 1972.

.

Considering all these facts and circumstances,

in my considered view, in the interest of justice, proviso to

Section 27(b)(ii) of the Act can be invoked and sentence of

imprisonment of one year imposed upon the petitioner is

reduced to 2 months and 12 days already undergone by

him w.e.f. 22.09.2021 to 03.12.2021.

7. In the result, the conviction of the petitioner in

terms of the judgment dated 23.06.2012 passed by the

learned Trial Court, as affirmed by the learned 1st Appellate

Court vide judgment dated 03.05.2019, is upheld. However,

the sentence of imprisonment of one year imposed upon

him is reduced to 2 months and 12 days, while maintaining

the fine of Rs.5000/-.

The revision petition stands disposed of in the

above terms, so also the pending miscellaneous

application(s), if any.

                                              Jyotsna Rewal Dua
    March 09, 2023                                  Judge
            Mukesh