Karnataka High Court
State Of Karnataka vs Gangadhar Inamdar on 1 February, 2024
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CRL.A No. 100325 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100325 OF 2016 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE DRUG INSPECTOR,
DHARWAD CIRCLE, HUBBALLI,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
GANGADHAR INAMDAR
PROPRIETOR RUGHNALAYA CLINIC,
NO.559, HOUSE NO.418,
IST FLOOR, C166(5),
Digitally signed
by MAIN ROAD (BAZAR ROAD),
SHIVAKUMAR
HIREMATH R/O: GALAGI HULKOPPA,
Date:
2024.02.09
TQ: KALAGHATAGI, DIST: DHARWAD.
15:03:08
+0530
...RESPONDENT
(BY SRI. SRINAND A. PACHCHAPURE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND
SET-ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
30.07.2016 PASSED BY THE LEARNED IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT DHARWAD IN SESSION CASE NO.146 OF
2014 AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 18(C), 18A AND
22(1)(CCA) PUNISHABLE UNDER SECTION 27(B)(II), 28 AND 22(3)
OF DRUGS AND COSMETICS ACT 1940, IN THE INTEREST OF
JUSTICE AND EQUITY.
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CRL.A No. 100325 of 2016
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the
acquittal Judgment passed in S.C.No.146/2014 dated
30.07.2016 by the IV Additional District and Sessions
Judge, Dharwad, wherein, the learned Sessions Judge
acquitted the accused/respondent for the offences
punishable under Sections 18(c), 18A and 22(1)(cca)
punishable Under Section 27(b)(ii), 28 and 22(3) of Drugs
and Cosmetics Act, 1940.
2. The factual matrix of the prosecution case in
brief are that;
At Galagi-Hulkoppa village, within the jurisdiction of
Kalaghatagi police station, the respondent/accused was
running a Clinic in the name of 'Rugnalaya Clinic', No.559,
House No.419, 1st floor, C166(5), Main road (Bazar road),
R/o. Galagi-Hulkoppa, Tal : Kalaghatagi, Dist. Dharwad
and practicing as B.A.M.S. Doctor.
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3. It is the further case of the prosecution that,
the accused without having any requisite valid drug license
stocked the drug in order to sell and distribute to the
patients without disclosing the particulars of those drugs
from whom he acquired the same. Hence, based on the
specific information with respect to the same, received by
P.W.1-Assistant Drug Inspector, he instructed P.W.2- Drug
Inspector and thereafter securing the panchas i.e., P.W.3
and P.W.5, they conducted a raid on the shop of the
accused, wherein, P.W.5 one Manjunath Lakkundi, as per
the instructions of P.W.1 and P.W.2, visited the shop of
the accused on the guise of purchase of Allopathic
medicine and purchased the medicine of Rs.43/- on
13.12.2011 at about 10.00 a.m. Thereafter, by making
some gesture, informed the same to P.W.1 and 2 and
accordingly, they raided the shop of the accused. On
enquiry, the accused failed to produce necessary
license/documents for storage and distribution of those
medicines. As such, a private compliant has been filed by
P.W.2 before the learned JMFC Court, Kalaghatagi, as per
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Ex.P.24 to punish the accused for the aforementioned
offences. The learned Magistrate after taking cognizance of
the offences, registered the case and subsequently
committed the case under the provisions of Section 32 of
the Drugs and Cosmetics Act, 2008 to the Session Court.
4. After committal of the case before the learned
Sessions Judge, the learned Sessions Judge framed charge
for the aforesaid offences against the accused and read
over the same to the accused. However, the accused
pleaded not guilty and claimed to be tried.
5. In order to prove the charges leveled against
the accused, the prosecution in total examined five
witnesses as P.W.1 to P.W.5, so also got marked 24
documents as Ex.P.1 to Ex.p.24 and got identified five
material objects as M.O.1 to M.O.5.
6. After completion of the prosecution evidence,
the learned Sessions Judge has read over the incriminating
evidences of material witnesses to the accused as
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contemplated under Section 313 of Cr.P.C. However, the
accused denied the same. The accused neither chose to
examine any witness on his behalf nor got marked any
documents.
7. After assessment of the oral and documentary
evidence placed before the learned Sessions Judge, the
learned Sessions Judge has acquitted the accused for the
offences he has been charged.
8. Heard Sri. M.B.Gundawade, learned Addl. SPP
for the appellant, so also the learned counsel Sri. Srinand
A. Pachchapure, for the respondent.
9. Learned Addl. SPP would vehemently contend
that, the Judgment under this appeal suffers from
perversity and illegality. The learned Sessions Judge
without appreciating the evidence on right perspective
acquitted the accused for the offences charges against
him. He would further contend that, the prosecution has
placed sufficient evidence to prove the charges leveled
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against the accused by examining P.W.1 -Drug Controller
who received the information in respect of selling the
drugs to the patients by the accused without having any
valid license to sell or store the same. As such, he along
with P.W.2 and the panchas conducted raid. At that time,
they found that the accused was selling the drugs whioch
are allopathic without any license to that effect. The said
aspect was also corroborated by the evidence of P.W.2 and
P.W.4.
10. He would further vehemence his submission
that, though the independent panch witnesses i.e., P.W.3
and P.W.5, turned hostile, the evidence of the official
witness cannot be discarded as they acted in their capacity
and after due perusal, has raided the premises with cogent
evidence. He would further contend that, P.W.1 and P.W.2
seized the drugs which are purchased by P.W.5 under the
Mahazar at Ex.P.4 as per M.O.5. Further he would
contend, the prosecution has also proved the aspect that,
the accused had no such license to store the drugs in the
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shop as per Ex.P.21 issued by P.W.4 i.e., the Assistant
Drug Controller. In such circumstance, the prosecution has
successfully proved the charges leveled against the
accused for the aforesaid offences. In spite of that, he
would contend that, the learned Sessions Judge has
acquitted the accused in the impugned Judgment.
Accordingly, he prays to allow the appeal by setting aside
the impugned Judgment passed by the Sessions Court and
also to convict the accused for the charges leveled against
him.
11. Per contra, learned counsel for the
respondent/accused would submit that, the learned
Sessions Judge has passed the Judgment after
meticulously examining the evidence and the materials
available on record, which does not call for any
interference by this Court. According to the learned
counsel, it is the specific case of the prosecution that,
P.W.5 visited the shop of the accused and purchased the
medicine as per instructions of P.W.1 and P.W.2. However,
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the said witness himself has totally turned hostile to the
prosecution case. As such, there is no base for the
prosecution case to prove the charges leveled against the
accused. The other co-panch i.e. P.W.3 also turned hostile
to the prosecution case. In such circumstance, without
such corroboration of testimony of independent witnesses,
the only evidence of official witnesses P.Ws.1 and 2 cannot
be relied upon to convict the accused. This was rightly
observed and reasoned by the learned Sessions Judge and
as such he submits that the judgment of acquittal by the
learned Sessions Judge does not call for any interference
by this Court.
12. He would contend that, the prosecution has also
failed to produce any document in respect of the
ownership of 'Rughnalaya Clinic' wherein, accused
allegedly stored the drugs without necessary license and
sold them as claimed by the prosecution. Further he would
contend that, P.W.1 and P.W.2 in their examination has
categorically admitted that, the drugs which are said to
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have seized in the shop of the accused are available in all
the medical shops selling Allopathic medicines. In such
circumstance, interference cannot be drawn against the
accused that it was drawn from the shop of the accused.
Accordingly, he prays to dismiss the appeal.
13. Having heard the learned Addl. SPP for the
appellant, so also the learned counsel for the
respondent/accused, the only point that would arise for
my consideration is:
"Whether the Judgment under this appeal
suffers from any perversity or illegality?"
14. This Court being the appellate Court, on a
cursory glance of the evidence available on record and on
re-appreciation of the same this Court would find that -
PW.1-Rajashekhar, the then Assistant Drug
Controller deposed that, based on the specific information
received by him on 13.11.2011 he himself along with
P.W.2 and the panchas P.W.3 and P.W.5, visited the shop
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of accused which is situated in the first floor of the building
bearing No.559 situated at Galagi-Hulkoppa village and he
himself and P.W.2 sent P.W.5 to the shop of accused to
purchase the medicine for Rs.100/- and P.W.5 purchased
the medicine and subsequently made some gesture and
thereby himself and P.W.2 raided the shop and enquired
about the valid license to store the medicine in the said
shop. However, the accused failed to produce the same.
Thereafter, they seized the medicines and subsequently
drawn a mahazar in the said shop and issued notice to the
accused to produce necessary license if any, to store such
medicine. But the accused failed to produce the same. As
such, he lodged private complaint before the Magistrate.
PW.2- Smt. Shwetha who reiterated the evidence of
P.W.1. According to her, she has also visited the shop of
the accused on 13.12.2011 along with P.W.1 and the
panchas.
15. On careful perusal of the evidence of these two
witnesses, they categorically deposed in their evidence
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that on the date of incident, they went along with P.W.3
and P.W.5 the panch witnesses and among them, P.W.5
alone went to the shop of accused which is situated in the
building aforementioned and he purchased the medicine
from the accused by showing prescription of the Doctor.
Subsequently, P.W.1 and P.W.2 raided to the shop and
enquired the accused as to the licenses and at that time
accused failed to produce the necessary license. P.W.5,
the star witness who allegedly purchased the medicine
from the shop of the accused has totally turned hostile to
the prosecution case. Though the learned Public
Prosecutor has cross-examined P.W.5, nothing worthwhile
has been elicited from his mouth. Further, though the
prosecution claimed that, based on the prescription the
accused gave medicine to P.W.5, on perusal of the said
prescription, which is produced at Ex.P.1, does not show
the name of the Doctor or the clinic from where the same
is being obtained. Since, P.W.5 himself turned hostile to
the prosecution case, much evidentiary value cannot be
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attached to the evidence of P.W.1 and P.W.2 so also the
Ex.P1.
16. On a careful perusal of the evidence of P.W.1,
P.W.2 and P.W.4, I find that, the prosecution has failed
produce the documents that 'Rugnalaya Clinic belongs to
the accused. Further the evidence of P.W.1 and P.W.2
suffers from serious infirmities in respect of the alleged
raid conducted to the shop of the accused. Nevertheless,
PW.3 and 5- Punchas who were involved in the said ride
has turned hostile to the prosecution case.
17. Furhter, though the learned Addl. SPP
vehemently contends that, the evidence of P.W.1, P.W.2,
and P.W.4 cannot be discarded for the reason that they
are the officials. The Hon'ble Apex Court in the case of
Pradeep Narayan Madgaonkar and others Vs. State
of Maharastra, reported in (1995) 4 SCC 255, has held
that,
"Indeed the evidence of the official
witnesses cannot be discarded merely on
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the ground that they belong to the police
force and are either interested in the
investigating or the prosecuting agency.
But prudence dictates that, their evidence
needs to be subjected to strict scrutiny
and as far as possible corroboration of
their evidence in material particulars
should be sought."
At the cost of repetition, I opine that, in the case on
hand, the material witnesses i.e. P.W.3 and P.W.5 have
turned hostile to the prosecution case and as such, there
is no corroboration to believe the testimony of P.W.1 and
P.W.2 to the officials. It is on this ground, I am of the
considered view that, the learned Sessions Judge has
rightly acquitted the accused for the charges leveled
against him.
18. To further emphasize, since this Court is sitting
over the legality and correctness of the acquittal appeal, is
bound by the norms laid down by the Hon'ble Apex Court
in the case of H.D.Sundara and others Vs. State of
Karnataka, reported in (2023) 9 SCC 581 wherein the
Top Court held that -
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"the appellate Court while deciding an appeal
against the accused after re-appreciating the
evidence is required to consider whether the
view taken by the trial Court is possible view
which could have been taken on the basis of
evidence on record. If the view taken is a
possible view, the appellate Court cannot
over turn the order of acquittal on the
ground that, another view was also possible.
The appellate Court can interfere with the
order of acquittal only if it comes to a finding
that, the only conclusion which can be
recorded on the basis of the evidence on
record was that, the guilt of the accused was
proved beyond all reasonable doubt and no
other conclusion was possible. The appellate
Court cannot overturn the acquittal only on
the ground that, after re-appreciating the
evidence, it is of the view that, the guilt of
the accused was established beyond a
reasonable doubt only by recording such a
conclusion an order of acquittal cannot be
reversed, unless the appellate Court also
comes to the conclusion that it was only a
possible conclusion."
19. If the case on hand is seen from the angle of
the dictum laid down by the Hon'ble Apex Court, in my
considered view, the prosecution has failed to prove the
guilt of the accused beyond reasonable doubt and the
learned Sessions Judge has rightly acquitted the accused
for the charges leveled against him. Such being the case,
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there are no such compelling reasons forthcoming to
interfere in the acquittal Judgment passed by the Sessions
Judge. Accordingly, I answer the point raised above in
negative and proceed to dismiss the appeal being devoid
of merits
Sd/-
JUDGE
SVH
