Virendra Singh v. State — 1967 DIGILAW 106 (ALL)

ORDER M.H. Beg, J. - The Applicant, who has been convicted u/s 27(b) of the Drugs Act and sentenced to pay a fine of Rs. 300/- , and, in default of payment of fine to undergo three months' S.I., prays for interference by this Court in revision. 2. The Applicant runs a shop under the name of M/s. Ranjit Bros, and holds a licence for selling medicines (Ex. Ka 1). Under the terms of this licence, the Applicant is not allowed to either sell of stock or exhibit; for sale certain drugs listed in Schedule C falling under the classification Sera, Vaccines, and Antitoxins .On 10-9-1963, Sri R.K. Arora, PW 1 the Drugs Inspector, Agra, inspected the Applicant's shop and found certain violations of the Drugs Act (hereinafter referred to as the Act) and the rules made thereunder. He drew up a report (Ex. Ka 5) in which he set out the alleged violations which consisted of: (1) Keeping certain drugs stocked in an almirah inspite the expiry of the dates beyond which these medicines could not be used; (2) stocking of certain Vaccines and other drugs contrary to the terms of the licence; (3) failing to maintain the prescription register and drug register required by the rules under the Act. Both the courts below have accepted the prosecution case and affirmed the conviction and sentence of the Applicant who is also shown in the charge to have been previously convicted u/s 27 of the Drugs Act and fined Rs. 100/- on 9-11-1959. 3. It has been contended vehemently by Mr. G.D. Srivastava, appearing on behalf of the Applicant that the sole evidence in this case is that of the Drugs' Inspector who did not carry out the search and seizure of the medicines in accordance with Section 103 Code of Criminal Procedure. Reliance was placed upon Section 22 of the Act which gives powers to Inspector who has to exercise these powers subject to the procedure given in Section 23 of the Act. Reliance was placed upon Section 22 of the Act which gives powers to Inspector who has to exercise these powers subject to the procedure given in Section 23 of the Act. Amongst the powers of the Inspector is a power to inspect any premises where drugs are being manufactured, the power to take samples of any drug which is being manufactured or sold or stocked or exhibited for sale, the power to enter all such places where he reasonably believes that an offence against the Act is being committed, and to seize the stock of such drugs, the power to examine records, registers and documents and to seize these if they furnish evidence of the commission of any offence. Section 22 Sub-section (2) reads as follows: The provisions of the Code of Criminal Procedure, 1898, shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued u/s 98 of the said Code. 4. The contention of Mr. Srivastava is that no seizure of medicine is possible without an entry of the premises and a search so that the provisions of Section 103 Code of Criminal Procedure ought to have been complied with. He relies on three decisions of this Court for contending that a violation of Section 103 Code of Criminal Procedure is an impropriety which would vitiate a conviction. The first of these is Sadlu Vs. Emperor, AIR 1934 All 374 . This is a case in which a police officer had chosen witnesses of questionable respectability deliberately. The next case, Bishnath Rai Vs. Rex, AIR 1950 All 147 , was a case in which it was held that, in the absence of evidence to prove circumstances showing that compliance with Section 103 Code of Criminal Procedure was not possible, the violation would be enough to vitiate a conviction. Tittar and Another Vs. State, AIR 1953 All 506 lays down that evidence is liable to be reviewed in revision for a violation of Section 103 Code of Criminal Procedure. The latest decision of the Supreme Court in Sunder Singh Vs. State of Uttar Pradesh, AIR 1956 SC 411 , however, lays down that the violation of Section 103 Code of Criminal Procedure only affects the weight of evidence of recovery and cannot affect the legality of the proceeding itself. The latest decision of the Supreme Court in Sunder Singh Vs. State of Uttar Pradesh, AIR 1956 SC 411 , however, lays down that the violation of Section 103 Code of Criminal Procedure only affects the weight of evidence of recovery and cannot affect the legality of the proceeding itself. 5. There was also some controversy about the extent to which the provisions of Section 103 Code of Criminal Procedure would apply when the Drugs' Inspector had only gone to inspect the shop and not to search it. The cross examination of the Drugs' Inspector brought out that he took the view that compliance with the procedure for a search was not considered necessary by him as he had gone only to inspect the premises. Such a ground can always be put forward for circumventing the provisions of Section 103 Code of Criminal Procedure which ought not to be ignored by Drugs' Inspectors in entering premises for the purpose of search and seizure of incriminating objects. 6. It was held recently in Municipal Board Saharanpur v. Dhian Singh 1966 AWR 662 : 1967 ALJ 210 while dealing with provisions of Section 10(7) of Prevention of Food Adulteration Act, that the Formalities laid down there for witnessing a sale ought to be complied with, although a failure to comply with its requirements if sufficiently explained, will not vitiate the trial. In the case before me, the Drugs' Inspector has put forward an excuse for not complying with the provisions which is not entirely Satisfactory. He has admitted that there were customers coming in and going out of the shop and that he made no attempt to procure their addresses. It may be that mere inspection may give a Drugs' Inspector reasons to believe that a search is necessary. When he once comes to that conclusion he ought to attempt to comply with the provisions of Section 103 Code of Criminal Procedure. The failure to comply with Section 103 Code of Criminal Procedure would, therefore, diminish the value of the evidence of the Drugs Inspector. The result is that his evidence is only acceptable to the extent to which it is corroborated by other evidence. The noncompliance will not, as already indicated above, vitiate the proceeding or invalidate the conviction. The failure to comply with Section 103 Code of Criminal Procedure would, therefore, diminish the value of the evidence of the Drugs Inspector. The result is that his evidence is only acceptable to the extent to which it is corroborated by other evidence. The noncompliance will not, as already indicated above, vitiate the proceeding or invalidate the conviction. But, each head of the charge framed will have to be examined in the light of evidence which might corroborate the evidence of the Drugs' Inspector. 7. So far as stocking of medicines after the date of expiry mentioned on the labels of medicines is concerned, I find that Rule 110 of the Drugs Rules makes only a sale and or an exhibition for sale of these medicines an offence. The mere stocking of these medicines is not an offence at all. It is possible that medicines may be stocked inadvertently after the expiry of dates given although they are not meant for sale. There ought to be something more than a mere presumption from the fact that they are found in an almirah meant for medicines intended for sale. This is a very suspicious circumstance. Nevertheless, in the absence of any evidence that the Applicant was selling these medicines after the dates of expiry given on the labels attached to the medicines, the Applicant would be entitled to the benefit of doubt. After all, people are expected to see the dates of expiry on the medicines and the chemist selling medicines beyond the dates of expiry indicated can be easily caught. There being no evidence given by the Inspector that any body tried to buy any of these medicines or that the Applicant tried to sell them, the Applicant seems entitled to the benefit of doubt for this charge based on circumstantial evidence only. 8. So far as the charge for the stocking of medicines contrary to the terms of the licence is concerned, the evidence given by the Inspector is corroborated by the actual medicines found and the report Ex. Ka. 5. The Applicant did not allege that those medicines had been brought by any enemy to the spot. On the other hand, he alleged that the medicines had been brought out from the adjoining shop of Doctor Swarup Singh Verma D.W. 1 who appeared as a defence witness. This is obviously a false explanation. Ka. 5. The Applicant did not allege that those medicines had been brought by any enemy to the spot. On the other hand, he alleged that the medicines had been brought out from the adjoining shop of Doctor Swarup Singh Verma D.W. 1 who appeared as a defence witness. This is obviously a false explanation. It has been held in Pershadi Vs. State of Uttar Pradesh, AIR 1957 SC 211 that a false explanation indicates guilt. It may be sufficient to convict but can be used to corroborate other evidence. The Applicant could put forward no ground for any hostility between himself and the Drugs' Inspector. The allegation that the Applicant has some enmity with a rival chemist has no bearing on the question whether there was any hostility with the Drugs' Inspector himself. There seems to be no reason to doubt the statement of the Drugs' Inspector. 9. The third item of the charge is also corroborated by the entry made by the Drugs' Inspector in the report Ex. Ka 5. This report corroborates the version of the Drugs' Inspector. It is true that the recovery memos, copies of which were given to the Applicant, were not signed by witnesses. The result of the violation of Section 103 Code of Criminal Procedure was only that more corroborative evidence, which could also have been there, is not there due to the omission of the Drugs' Inspector. This, however, does not, upon the facts and circumstances of the present case seem to be a sufficient reason for discarding the evidence of the Drugs' Inspector entirely. The result is that this revision application succeeds in part. The conviction of the Applicant for the charge of contravening Section 18(a)(v) of the Act, read with Rule 110 made under the Act, has not been established. It is, therefore, set aside, but the convictions for the other two violations is maintained. 10. I may notice here an impropriety in awarding the sentience. This is that the courts below have not awarded sentences separately for each of the offences charged. A fine of Rs. 300/- has been imposed conjointly for each of the three violations. I must, therefore, set aside the conviction as a whole and substitute a conviction and fine of Rs. 100/- for violation of Section 18(c) of the Drugs Act read with Rule 65 of the Act. A fine of Rs. 300/- has been imposed conjointly for each of the three violations. I must, therefore, set aside the conviction as a whole and substitute a conviction and fine of Rs. 100/- for violation of Section 18(c) of the Drugs Act read with Rule 65 of the Act. I also convict the Applicant and impose a sentence of Rs. 100/- as fine for the violation of Rule 65(4) of the Drugs Act. The Applicant will undergo one month's simple imprisonment in default of payment of each fine of Rs. 100/- . Subject to these modifications, the application is dismissed. The fine of Rs. 100/- out of Rs. 300/- , if paid already, will be refunded. Two months' time is given for payment of fine if it has not already been paid.