M/S.Subhikshm Pharmaceutical ... vs State Of Kerala
2022 Latest Caselaw 2468 Ker

    CRL.R.P NO. 651 OF 2015        1




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                   CRL.REV.PET NO. 651 OF 2015
  AGAINST THE JUDGMETN IN CRL.A NO.119/2008 OF ADDITIONAL
                 SESSIONS COURT - VIII, ERNAKULAM
 AGAINST THE JUDGMENT IN CC 796/1997 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS -II, KOCHI
REVISION PETITIONERS/ACCUSED:

    1       M/S.SUBHIKSHM PHARMACEUTICAL DISTRIBUTORS
            REP. BY ITS MG.PARTNER M.A.SEBASTIN, CC NO.
            XII/2925, OLD RAILWAY STATION ROAD, ERNAKULAM,
            COCHIN - 18.
    2       M.A.SEBASTIN, MG.PARTENER, M/S. SUBHIKSHM
            PHARMACEUTICAL DISTRIBUTORS, CC NO. XII/2925,
            OLD RAILWAY STATION ROAD, ERNAKULAM, COCHIN - 18.
            BY ADVS.
            SRI.S.ANANTHAKRISHNAN
            SRI.N.K.SUBRAMANIAN


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.
    2       DRUG INSPECTOR
            BY M.R.PRADEEP, DRUG INSPECTOR, OFFICE OF THE
            DRUGS INSPECTOR, CIVIL STATION,
            ERNAKULAM - 682 030.

            SRI SANGEETHA RAJ-PP
     THIS    CRIMINAL   REVISION       PETITION   HAVING   COME   UP   FOR
ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
     CRL.R.P NO. 651 OF 2015           2




                                O R D E R

This Revision Petition has been filed challenging the

judgment in Crl.A. No.119/2008 dated the 27.11.2014 on the file

of the Additional Sessions Court VIII, Ernakulam (for short 'the

appellate court').

2. The revision petitioners are the accused Nos.2 and 3 in

C.C.No.796/1997 on the file of the Judicial 1 st Class Magistrate

Court-II, Kochi (for short 'the trial court'). They along with the

1st accused were tried for the offence punishable under S.267(A),

28(B) of the Drugs and Cosmetics Act.

3. The 1st accused is the proprietor of M/s.Unisan

Pharmaceuticals engaged in the manufacture and sale of drugs.

The 2nd accused is a firm carrying out distribution of drugs and

the 3rd accused is the Managing Director of the 2nd accused firm.

4. The prosecution case in short is that the accused sold

the banned drug namely Mexaquin tablets MX9611 and thereby

committed the offence.

5. All the accused appeared at the trial court. The charge

was framed against them u/s.26(A), 28(B) of the Drugs and

Cosmetics Act. The charge of the above was explained to them

and they pleaded not guilty.

6. On the side of the prosecution PW1 was examined and

Exts.P1 to P20 were marked. No defence evidence was adduced.

7. After the trial, the trial court found all the accused

guilty u/s.28(B) of the Drugs and Cosmetics Act. The 1 st and 3rd

accused were convicted and sentenced to undergo simple

imprisonment for one year and to pay a fine of Rs.5,000/- each,

in default to suffer simple imprisonment for one month. The 2 nd

accused was convicted and sentenced to pay fine of Rs.5,000/-.

Challenging the said conviction and sentence, the petitioners

preferred Crl.A.119/2008 at the appellate court and the 1 st

accused preferred Crl.A.122/2008. The appellate court after

hearing both sides, allowed the appeal, set aside the conviction

and sentence and remanded the case to the court below to afford

an opportunity to the complainant to adduce evidence afresh.

The accused Nos.2 and 3 challenged the said order of remand as

well as the order of conviction and sentence passed by the trial

court in this revision petition.

8. I have heard Sri.S.Ananthakrishnan, the learned

counsel for the revision petitioners and Sri.Sangeetha Raj, the

learned Public Prosecutor.

9. The appellate court found that the conviction passed

by the trial court was based on the documentary evidence which

were inadmissible in law. According to the prosecution, the drugs

in question were purchased from the 2nd accused firm, who in

turn purchased from the 1st accused manufacturer. The entire

documents relating to the purchase of drugs were seized by the

police during the investigation. However, the prosecution marked

and relied on only the photocopies of those documents. Exts.P4

to P20 documents relied on by the trial court are photocopies. It

is not a case where the originals are not available. Hence, the

photocopies cannot be admitted in evidence even as secondary

evidence. The appellate court correctly found that the trial court

committed illegality in convicting the accused on the basis of

photocopies of the documents which were inadmissible in law.

However, the appellate court found that an opportunity has to be

given to the complainant to adduce fresh evidence and

accordingly remanded the case to the trial court.

10. The learned counsel for the revision petitioners,

Sri.S.Ananthakrishnan submitted that an appeal filed by the

accused cannot be remanded to give an opportunity to the

prosecution to adduce further evidence to fill up its own lacuna.

The learned counsel relied on the decision of this Court in

P.Mammadkutty and Others v. State [1996 KHC 232]. It was held

that in an appeal filed by the accused against the conviction and

sentence no remand can be made by the Sessions Court for fresh

trial for filling up a lacuna on the side of the prosecution. It

was further held that, in the absence of either an appeal by the

prosecution or a revision by the de facto complainant the Sessions

Court was not justified in remanding the matter back to the trial

court on an appeal filed by the accused against their conviction.

The said decision was followed by this court again in Baby v.

State of Kerala [2016 KHC 272]. The dictum laid down in the

above decisions squarely applies to the facts of this case. Here

also the remand was made in an appeal filed by the accused that

too only to fill up the lacuna in the prosecution evidence.

Hence, I am of the view that the judgment of the appellate court

cannot be sustained.

11. The appellate court has already stated that all the

documents relied on by the prosecution are photocopies. They are

inadmissible in evidence. Hence, there is no satisfactory evidence

to prove the guilt of the accused. In short, the prosecution has

miserably failed to prove the case against the accused beyond

reasonable grounds. Therefore, the revision petitioners/accused

are entitled to be acquitted.

In the result, the revision petition is allowed. The judgment

of both courts below as against the revision petitioners stands set

aside. The revision petitioners are found not guilty and they are

acquitted for the offences charged against them.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab