Karnataka High Court

Jayaprakash Pandit S vs The State Of Karnataka on 6 December, 2023

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                                                          NC: 2023:KHC:44212
                                                      CRL.RP No. 918 of 2016




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE VENKATESH NAIK T
                    CRIMINAL REVISION PETITION NO. 918 OF 2016
                   BETWEEN:

                        JAYAPRAKASH PANDIT S.
                        S/O. LATE. SUNDARA PANDIT,
                        AGED ABOUT 40 YEARS,
                        M/S. VAGHBHATA AYURVEDIC AGENCY,
                        JAYALAXMI NIVAS, PADIL,
                        MANGALORE - 575 007.
                                                               ...PETITIONER
                   (BY SRI. K RAVISHANKAR., ADVOCATE)

                   AND:

                        THE STATE OF KARNATAKA,
Digitally signed
                        REPRESENTED BY,
by VINUTHA M            INSPECTOR OF DRUGS,
Location: HIGH
COURT OF                D. K. DISTRICT,
KARNATAKA
                        MANGALORE CIRCLE,
                        MANGALORE - 575 002.
                                                             ...RESPONDENT
                   (BY SRI. VINAY MAHADEVAIAH, HCGP)

                         THIS CRL.RP IS FILED U/S.401 R/W 397 CR.P.C,
                   PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
                   TO    SET-ASIDE   THE   JUDGMENT    DATED     05.07.2016
                   PASSED IN CRL.A.NO.247/2012 PASSED BY THE III ADDL.
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                                           NC: 2023:KHC:44212
                                      CRL.RP No. 918 of 2016




DIST. AND S.J., D.K., MANGALORE AND THE JUDGMENT
DATED      13.08.2012    PASSED      IN    C.C.NO.5523/2003
PENDING     ON   THE    FILE    OF   THE   II   JMFC   COURT,
MANGALORE AND CONSEQUENTLY ACQUIT THE PETR.
FROM THE ALLEGED CHARGES AND ALLOW THIS R.P.

     THIS PETITION, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Heard Sri K.Ravishankar, learned counsel for the

petitioner and Sri M. Vinay Mahadevaiah, learned HCGP for

the respondent-State.

2. The accused-petitioner has filed this petition

under Section 401 read with Section 397 of Cr.P.C.

praying to set aside the judgment of conviction and

sentence passed by the learned II JMFC, Mangalore

(hereinafter referred to as 'the trial Court' for short) in

C.C.No.5523/2023 dated 13.08.2012 and confirmed by

judgment passed by the learned III Addl. District and

Sessions Judge, D.K., Mangalore (hereinafter referred to

as 'First Appellate Court' for short) in Crl.A.No.247/2012

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dated 05.07.2016, convicting and sentencing the

petitioner for the offence punishable under Section 18(c)

read with 27 (b)(ii) of the Drugs and Cosmetics Act, 1940

(hereinafter referred to as 'the Act' for short) to undergo

simple imprisonment for a period of one year and fine of

Rs.5,000/- in default of payment of fine, simple

imprisonment for a period of two months.

3. For the sake of convenience, the parties are

referred to as per their ranking before trial Court. The

petitioner is the accused and the respondent is

complainant before the trial Court.

4. The brief facts of the prosecution case is as

under:

The accused was dealing in drugs in firm

M/s.Vaghbhata Ayurvedic Agencies at Padil, Mangalore

without having a valid licence under the Act. Thus,

accused No.2-Drugs Inspector along with accused No.3-

Assistant Drugs Controller along with panchas conducted a

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test purchase on 08.02.2001 by sending one person by

name Sri.Rajesh to the firm of the accused. Thereafter, he

verified and seized some of the drugs from the medical

shop of the accused. It was found that the accused was

dealing in drugs Stopache 5 x 10, Ring Guard 5 tubes,

D'cold tablets 5 stripes and found stock of various drugs

for sale and distribution in his premises without any

licence. Thereafter, P.W.1 sent those drugs to laboratory

for testing and found that the accused had kept the drugs

for selling illegally and thereby committed an offence

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

Act. Hence, PW.1 lodged the complaint, which led to the

investigation. Thereafter, the trial Court took cognizance

of the aforesaid offence and framed charges for the

aforesaid offence.

5. The prosecution, in order to prove its case,

examined in all 8 witnesses as PW.1 to PW.8 and

documents were marked as Exs.P.1 to P.61 as well as the

material objects in MO's.1 to 19. Thereafter, the trial

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Court recorded the statement of the accused under

Section 313 of Cr.P.C. by explaining the incriminating

circumstances appearing in the prosecution witnesses and

evidence to the accused. The case of the accused was one

of total denial, and the accused did not enter the witness

box.

6. On the basis of the oral and documentary

evidence, the trial court convicted the accused for the

offence punishable under Section 18(c) read with Section

27(b)(ii) of the and sentenced him to undergo simple

imprisonment for a period of one year and fine of

Rs.5,000/- in default of payment of fine, simple

imprisonment for a period of two months.

7. Aggrieved by the judgment of conviction and

sentence passed by the trial Court, the accused filed an

appeal in Crl.A.No.247/2012 before the First Appellate

Court, in turn, the Appellate Court confirmed the order of

the trial Court, and dismissed the appeal. Now, aggrieved

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by the orders of both the Courts, the accused filed this

revision petition.

8. Sri. K. Ravishankar, learned counsel for the

petitioner contended that the trial Court as well as the first

Appellate Court erred in convicting the petitioner as the

investigation was done before an Authority having no

jurisdiction. Further, the alleged place of commission of

offence does not fall within the jurisdiction of PW.1 and

therefore, the trial Court ought to have acquitted the

petitioner on this count.

9. Further, the trial Court convicted the petitioner

without there being any material witnesses and the

material witnesses have not been examined by the

prosecution to prove that the petitioner was selling the

allopathic medicine. Further, the contents of Ex.P12 and

Ex.P6-panchanama have not been proven. It is contended

that the drugs in question were seized from the house of

the petitioner and were not from the medical shop. The

Authorized Officers, who conducted the raid were not

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competent Authorities to conduct the raid. Further, while

conducting the search and seizure, PW.1 did not obtain a

search warrant as required under Section 23(2) of the Act.

The person who accorded sanction has not been examined

as required under Section 33(m) of the Act. The sanction

order has not been marked. Therefore, there are several

irregularities in conducting the investigation. The seizure

and search was not proved in accordance with law and the

sanction order accorded by the Government was also not

proved. On all these facts, learned counsel for the

petitioner prays to allow the petition.

10. Learned HCGP for the respondent contended

that PW.1-Drugs Inspector, PW.2-Additional Drugs

Inspector and PW.3-Assistant Drugs Controller have

categorically stated about the way in which the search and

seizure were conducted in their presence and they have

categorically and consistently stated against the petitioner.

Further, PW.5 to PW.8 are the dealers, who supplied the

medicine to the accused under Ex.P36 and Ex.P37. Hence,

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there is clear and collaborative evidence against the

petitioner. Since the trial Court and the First Appellate

Court have given concurrent findings, no interference is

called for in the revision petition. Hence, he prayed for

dismissal of the revision petition.

11. It is not in dispute that the accused was the

owner of M/s. Vaghbhata Ayurvedic Agencies, who sell the

drugs in the shop. It is also not in dispute that the

accused was dealing in drugs Stopache, 5 x 10, Ring

Guard 5 tubes, D'cold tablets 5 stripes and found stock of

various drugs for sale and distribution in his premises. It

is also not in dispute that on 15.12.1999, PW.2 and PW.3

conducted raid on his shop along with PW.1-Drugs

Inspector and the accused was not possessing any valid

licence to sell those drugs and found that they were

unauthorizedly kept for sale and sold by him.

12. In order to prove that those drugs were sold

without a valid licence, the drug controller relied upon the

evidence of the Drugs Inspector and Additional Drugs

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Inspector as per PW.1 to PW.3. As per the evidence of

PW.4 to PW.8, they have clearly stated that they have

supplied drugs to the shop of the accused. Thus, it is

clearly established that, as on the date of the incident, the

accused was selling the aforesaid drugs in his shop.

13. Under Section 18 of the Drugs and Cosmetics

Act, 1940, a prohibition has been imposed as to the

manufacture, sale, etc., of certain drugs and cosmetics.

Section 18 of the Drugs and Cosmetics Act, 1940, reads as

under:

18. Prohibition of manufacture and sale of certain drugs and cosmetics.--From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--

(a) xxxxxxxxxxxxxxxxxxxxx

(b) [sell or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;

(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug 9 [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:

Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of

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small quantities of any drug for the purpose of examination, test or analysis :

Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality.

14. The punishment for contravention of 18(c) is

provided under Section 27(b)(ii) of the Drugs and

Cosmetics Act, 1940, reads as under:

27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.--Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,--

(a) xxxxxxxxxxxxxxxxxxxxxxx

(b) any drug--

(i) xxxxxxxxxxxxxxxxxxxxxxx

(ii) without a valid licence as required under clause

(c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more]:

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of (less than three years and of fine of less than one lakh rupees]:

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15. On perusal of the above proposition of law, the

prohibition under Section 18(c) of the Act is on the

manufacturing, distribution, stocking or exhibition of medicines

for the purposes of sale. The charge in the present case is that

the accused had "stocked" medicine for "sale". The entire

emphasis is on the "sale" of the medicines. This is evident

from the sanction being sought by the Drugs Inspector from

the office of the Director, Drug Control, Karnataka, wherein

PW.1 sought for sanction by the competent Authority in order

to prosecute the accused for contravention under Section 18(c)

read with Section 27(b)(ii) of the Act. Therefore, as per the

prosecution case, the accused had stocked the drugs and sold

them.

16. It is not the case that the accused was selling drugs

and cosmetics across the counter through a shop. On the

contrary, as per the evidence of PW.1 to P.W.3, the accused

was selling drugs from his house. Considering the small

quantity of the medicines, most of which are in the category of

lotions and ointments, it cannot be said, by any stretch of

imagination that, such medicines could be stocked for sale and

would come in the category of stocking of medicines for the

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purpose of sale. A small quantity of medicine has been found

in the premises of the accused, but it did not amount to selling

their medicine across the counter in an open shop.

Undoubtedly, the provisions of Section 18(c) and 27(b)(ii) of

the Act are relevant provisions under the law that have a social

purpose, which is to protect the ordinary citizen from being

exploited inter alia by unethical medical practitioners. For this

reason, the punishment under Section 27(b)(ii) of the Act can

extend upto 5 years under the law and the minimum

punishment is for a period of 5 years as amended in 2008.

17. Another fact that must be considered is that the

search warrant was carried out on 08.02.2001 and sanction for

prosecution was sought on 03.09.2003 and the sanction was

ultimately given on 31.10.2003. There is no explanation for

the delay in getting the approval.

18. In the case of Hasmukhlal D. Vora and

Another Vs. State Of Tamil Nadu reported in 2022 SCC

online SC 1732, the Hon'ble Apex Court quashed the criminal

proceedings against the accused on the ground that the

substance in question was not a drug under the Indian

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Pharmacopoeia. One of the considerations was the delay in the

proceedings against which the following observations were

made:

"25. In the present case, the Respondent has provided no explanation for the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. In fact, the absence of such an explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings.

26. While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint.

27. While this court does not expect a full-blown investigation at the stage of a criminal complaint, however, in such cases where the accused has been subjected to the anxiety of a potential initiation of criminal proceedings for such a length of time, it is only reasonable for the court to expect bare-minimum evidence from the Investigating Authorities."

19. The sanction for prosecution given in the present

case appears prima-facie, to suffer from vice of non application

of mind. There is no reference to any of the documents,

evidence or the submissions submitted by either of the parties,

no reason are assigned or even an explanation pertaining to

the delay, which indicates it has been passed in a mechanical

manner. More over, the person who accorded sanction has not

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been examined and the sanction order has also not been

marked in the evidence.

20. In this instance, the possession of drugs is not

disputed by either side.

21. Learned counsel for the petitioner contended that

possession of drugs would not itself be an offence, but the

prosecution has to prove the essential ingredients under

Section 27 of the Act, when such being the case, even a stock

of the medicine was for sale. In this regard, learned counsel

relied upon the decision in the case of Mohd. Shabir Vs. State

Of Maharashtra. reported in 1979 (1) SCC 568, wherein the

Hon'ble Apex Court has held as under:

"4.... 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."

22. The Hon'ble Apex Court in its recent decision in the

case of S. Athilakshmi Vs. The State Represented by The

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Drugs Inspector reported in Special Leave Petition(Crl.)

No.9978/2022 dated 15.03.2023 has taken a similar view as

taken by the Hon'ble Apex Court in the case of Mohd. Shabir

Vs. State Of Maharashtra reported in 1979 (1) SCC 568.

23 When it comes to the case of the prosecution,

based on credible information received by PW.3, the raid was

conducted at the shop of the petitioner on 08.02.2001 and

found that the accused was running his business without a valid

license. These factual aspects have been proved by PW.1 to

PW.3 by producing Ex.P1 to Ex.P61 and MO.1 to MO.19. In the

concurrent findings of both the Courts below, the prosecution

has proved charges levelled against the petitioner, which is

supported by the evidence on record. On this point, I found no

justifiable ground to interfere with the same.

24. Section 27(b)(ii) of the Drugs and Cosmetics Act,

1940, provides for minimum sentence of one year which may

be extended up to three years with a fine, which shall not be

less than Rs.5,000/- or three times the value of the drugs

confiscated, whichever is more. The proviso further specifies

that for any adequate and special reasons to be recorded in the

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judgment, sentence of imprisonment for a term of less than

one year or fine of less than Rs.5,000/- can be imposed in the

instant case. The Courts below levied a fine of Rs.5,000/- on

the accused and I find no justifiable ground to interfere with

the same.

25. From the perusal of the records, it indicates that

the incident had taken place in the year 2001. Now we are in

the year 2023. Thus, 22 years have lapsed. The offence

against the accused is that he was selling the drugs without

valid licence. From the material on record, it is seen that, the

accused was running a pharmaceutical store by obtaining a

valid licence from the concerned department. The counsel for

the petitioner contended that after three months of the alleged

incident, the accused obtained a valid licence from the

competent authorities and has been running a medical shop.

26. From the perusal of the evidence of PW.1 to PW.3,

it is noticed that the renewal application filed by the accused

was pending consideration with the drugs department. It is not

the case of the prosecution that the accused was selling

substandard or spurious or adulterated drugs. Under these

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circumstances, I am of the considered opinion that the

sentence levied on the accused calls for interference.

27. Learned counsel for the petitioner contended that

the accused was a first time offender. Therefore, the

provisions of Probation of Offenders Act can be extended.

28. The Drugs and Cosmetic Act was of the year 1940,

the Probation of Offenders Act is of the year 1958. Section 18

of the Probation of Offenders Act is a non-obstinate clause

which is having overriding effect on the Drugs and Cosmetic

Act. It is settled position of law that as a matter of rule the

benefit under the Probation of Offenders Act cannot be

extended. For special reasons and in the rarest of rare cases,

the Courts are having power to extend the benefit of Probation

of Offenders Act.

29. In the facts and circumstances of the case, while

confirming the order of conviction on the petitioner, I am of the

considered opinion that levy of fine of Rs.10,000/- with one day

imprisonment till the raising of the Court will meet the ends of

justice. To this extent, the impugned order of sentence

requires modification.

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30. For the reasons stated above, I proceed to pass the

following:

ORDER

(i) The revision petition filed by the accused

is partly allowed.

(ii) The judgment of conviction of the

petitioner passed by the trial Court in

C.C.No.5523/2003 dated 13.08.2012 and

the First Appellate Court in

Crl.A.No.247/2012 dated 05.07.2016 are

hereby confirmed. The order of sentence

of imprisonment for a period of one year is

modified to one day till the raising of the

Court, before the trial Court and the

sentence levied on accused to pay fine of

Rs.5,000/- is enhanced to Rs.10,000/- and

in default to pay the fine amount, to

undergo simple imprisonment for a period

of one month.