The Public Prosecutor (A. P. ) v. Mahaveer Prasad — 1971 DIGILAW 679 (MAD)

Judgment: This is an appeal by the State against the judgment of the learned Fourth City Magistrate, Hyderabad acquitting the four respondents of offences under the Drugs and Cosmetics Act. The prosecution case was that on 9th October, 1968, P.W.1 and P.W.2 two Drugs Inspectors went to Adarsh Medical Hall for a routine inspection. The four respondents who were partners were proprietors of the medical shop. A-2 alone was present. In the course of the inspection they found that there was a large quantity of drugs in an attic bearing the labels “Medical Stores GMH” and ‘Medical Stores OGH’. ‘GMH’ meant Gandhi Medical Hospital and ‘OGH’ meant Osmania General Hospital. There were also several crags with the labels physician’s Sample not for sale P.W.1 then telephoned to the office of the Director of Medical Services for assistance. Panchas were also gathered. Appa Rao and Gopalakrishna Murthy, two senior Drugs Inspectors came to the shop. They brought with them P.W.3 a Sub-Inspector of Grime Branch of the C.I.D. In their presence several drugs bearing marks ‘Medical Stores GMH’, ‘Medical Stores OGH’, ‘ESI, Government of Maharashtra’ and ‘Physician’s sample not for sale’ were seized. As many as 129 items were seized under a panchnama Exhibit P-1. A copy of the Panchnama was given to A-2 one of the partners of the firm who was present. A-2 endorsed on the panchnama that he had received a copy of it and that the search and seizure were conducted and made in his presence. A receipt in form No. 16 prescribed by the Drugs and Cosmetic Rules was prepared and was given to A-2. The next day P.W.1 and Appa Rao visited the shop once again and issued an order under section 22(c) of the Drugs and Cosmetics Act directing him not to dispose of the stock in his possession for a period of twenty days. A-2 signed Exhibit P-3 in token of having received a copy of the order. Another similar order Exhibit P-4 was also served on A-2 and he signed that also. On 17th October, 1968, a notice was issued to the firm of the respondents to disclose the source from which the firm acquired the drugs found in its possession. Another notice was issued to produce the purchase bills etc. The notices were served on A-2 and he made endorsements to that effect on Exhibits P-5 and P-6. On 17th October, 1968, a notice was issued to the firm of the respondents to disclose the source from which the firm acquired the drugs found in its possession. Another notice was issued to produce the purchase bills etc. The notices were served on A-2 and he made endorsements to that effect on Exhibits P-5 and P-6. Subsequently A-3, one of the partners of the firm wrote a letter to P.W.1 on 23rd October, 1968, requesting that he might be given a fortnight’s time to send a reply to the notices. No reply was, however, ever sent. On 19th November, 1968, P.W.1 and Appa Rao once again went to the shop of the respondents and seized some more drugs under panchnama Exhibit P-8. The signature of A-2 was taken in Exhibit P-8 and a notice in form No. 16 was also served on him. Thereafter a complaint was laid against the four respondents. The learned Magistrate framed charges under section 17(e) read with section 18(a)(ii) of the Drugs and Cosmetics Act, section 18(a) (vi) read with rule 65(17) of the Rules, section 18(a)(vi) read with rule 65(4) and rule 65(5)(3) and section 18(a) of the Drugs and Cosmetics Act. 2. The plea of the accused was one of denial. Accused 1, 3 and 4 stated that the 2nd accused alone was in charge of the business and that they knew nothing. The 2nd accused examined himself as D.W. 1 and stated that he was solely responsible for the conduct of the business. On 9th October, 1958 at about 5 p.m. one Ramana Rao, a senior Drugs Inspector came to his shop for inspection. While he was there P.Ws. 1 and 2 also came there and had a talk with him and went away. Later at 6 p.m. P.W.1 came to the shop once again and took his signature on some papers stating that Ramana Rao had detected some faults in the maintenance of accounts. When he protested he was told that he would be committing another offence if he refused to sign the papers. He, therefore, signed the papers as requested. He did not read the contents of the papers nor was he given copies of those papers. Next day again P.W.1 came and took his signatures on some more papers. Then also he was not given copies of the papers signed by him. He, therefore, signed the papers as requested. He did not read the contents of the papers nor was he given copies of those papers. Next day again P.W.1 came and took his signatures on some more papers. Then also he was not given copies of the papers signed by him. On the 17th he received two notices from the office of the Director of Medical Services to furnish details and particulars of put chases for the drugs claimed to have been seized from the shop. In fact, no drugs were seized from the shop. As there was no seizure of any drugs from the shop he was unable to send any reply immediately. As he was away from Hyderabad for some time A-3 sent a reply asking for some time. Again on 30th October, 1968, P.W.1 came and took his signatures on some more papers He did not read hose papers and no copies were given to him. 3. The learned Magistrate acquitted the accused on the ground that the seizure of the drugs from the shop of the accused could not be said to be established in view of the failure of the prosecution to examine the panch witnesses. The learned Magistrate also held that there was failure to comply with the provisions of the Criminal Procedure Code relating to searches. The learned Magistrate also held that the Drugs Inspector was not justified in taking the signatures of A-2 on the panchanamas and the receipts. The State has preferred the present appeal. 4. The reasons given by the learned Magistrate for acquiting the accused appear to bear no scruitiny whatever. The learned Magistrate was wrong in thinking that there was anything objectionable in the Drugs Inspectors taking the signature of the accused on the panchanama or on the receipt. The learned Magistrate referred to decision of the Andhra Pradesh High Court which has no application whatever. That was a case in which a police officer had taken the signature of the accused on a panchanama containing a confession of the accused leading to the discovery of some evidence. A police officer is prohibited by statute from taking the signature of an accused or even a witness on a statement made by him during the course of investigation. A police officer cannot circumvent the statutory provisions by calling it a panchanama. A police officer is prohibited by statute from taking the signature of an accused or even a witness on a statement made by him during the course of investigation. A police officer cannot circumvent the statutory provisions by calling it a panchanama. On the other hand when a search of a premises is made and certain things are seized from the premises in the course of the search the officer making the search is bound to prepare a list of the things seized and deliver a copy of the list to the occupant of the premises. That is provided by section 103 Criminal Procedure Code. There is nothing objectionable if the signature of the occupant, even if he is an accused, is obtained in token of having received a copy of the list. Under the Drugs and Cosmetics Act there is no provision which prohibits a Drugs Inspector from taking the signature of a witness or an accused on any statement made by him. In the present case, the signatures of A-2 were not even taken on any statements made by him. The signatures were taken merely to acknowledge the receipt of copies of the search lists and the notices issued to the accused. I do not see anything objectionable in the conduct of the Drugs Inspectors in taking the signatures of A-2 on these documents. 5. The learned Magistrate was also wrong in holding that the seizure of the drugs from the shop of the accused Was not proved merely because the two panchayatdars were not examined. There is no reason why the evidence of the two Drugs Inspectors, PWs. 1 and 2 should be treated with suspicion. They cannot be called partisan witnesses. They were merely discharging their duties. Apart from their evidence there is also the evidence of P.W.3 who assisted P.Ws. 1 and 2 in the search. P.W.3 is the Sub-Inspector of the C.I.D. and must be considered to be an independent witness. In addition to the evidence of P.Ws. 1 to 3 we have the fact that A-2 himself affixed his signature on the several panchanamas and receipts. The explanation of the 2nd accused that he went on signing every paper that he was asked to sign by the Drugs Inspector is most unconvincing. He is not an illiterate person. In addition to the evidence of P.Ws. 1 to 3 we have the fact that A-2 himself affixed his signature on the several panchanamas and receipts. The explanation of the 2nd accused that he went on signing every paper that he was asked to sign by the Drugs Inspector is most unconvincing. He is not an illiterate person. He holds a licence under the Drug and Cosmetics Act and he knows the significance of being in possession of unauthorised drugs and subscribing to a document which mentions such possession. The explanation of A-2 is unacceptable. When a notice was issued to the firm to disclose the names and addresses of persons from whom the drugs were purchased and to produce the bills the firm did not send a reply giving the particulars asked for. On the other hand, A-3 sent a reply saying that some time may be granted for furnishing particulars. Even afterwards no reply Was sent. When the notices were received from the Drugs Inspector asking for the particulars of purchases the firm and particularly A-2 should have protested that no drugs were seized as mentioned in the notices. Nothing of the sort was over done. I have no doubt that the seizures from the shop of the firm are true. If the learned Magistrate thought that the evidence of the panchayatdars was necessary he should have taken steps to examine them as Court witnesses. The prosecution had informed him that they had turned hostile and there was, therefore, no purpose in the prosecution examining them as their witnesses. If their evidence was considered necessary it was up to the learned Magistrate to examine them as Court witnesses. I do not think that the examination of the Panchayatdars as witnesses would have served any purpose in the present case. 6. The learned Magistrate also appears to have thought that there was a failure to observe the provisions of the Criminal Procedure Code in regard to the searches since the Drugs Inspector failed to record the reasons for the search before making the search. 6. The learned Magistrate also appears to have thought that there was a failure to observe the provisions of the Criminal Procedure Code in regard to the searches since the Drugs Inspector failed to record the reasons for the search before making the search. Section 22(2) of the Drugs and Cosmetics Act prescribes that the provisions of the Criminal Procedure Code shall, so far as may be, apply to any search or seizure under Chapter IV of the Drugs and Cosmetics Act as they apply to any search or seizure made under the authority of a warrant issued under section 98 of the said Code. In other words, the search or seizure made by a Drugs Inspector is equated to the search and seizure made under the authority of a warrant issued under section 98, Criminal Procedure Code. Where a search is made under the authority of a warrant issued under section 98, Criminal Procedure Code it is unnecessary to record the reasons for making the search. It is only where a police officer is compelled to make a search in the course of an investigation, without the warrant of a Magistrate that he has to record in writing the reasons for the search. Since under the Drugs and Cosmetics Act a search or seizure by a Drugs Inspector is equated to a search and seizure under the authority of a warrant it is not necessary for a Drugs Inspector to record his reasons for making a search. 7. The next question for consideration is what are the offences committed by the accused. The first charge was that the accused had stocked for sale misbranded drugs within the meaning of section 17(e) of the Drugs and Cosmetics Act and therefore contravened section 18 (a)(ii) of the Act. Under section 17(e) a drug shall be deemed to be misbranded if it is not labelled in the prescribed manner. It is not shown that any of the drugs seized from the accused were not labelled in the prescribed manner. The accused are therefore not shown to be guilty of a contravention of section 18(a) (ii). 8. The second charge was that the accused stocked for sale drugs not intended for sale in contravention of section 18(a) (vi) read with rule 65(17). The accused are therefore not shown to be guilty of a contravention of section 18(a) (ii). 8. The second charge was that the accused stocked for sale drugs not intended for sale in contravention of section 18(a) (vi) read with rule 65(17). Rule 65(17) prohibits the sale or stocking of a drug in violation of any statement or direction recorded on the label or wripper. Several of the drugs seized from the accused contained labels ‘Physician’s sample not for sale’. The sale of such samples would therefore, be a contravention of rule 65(17). The learned Counsel however urged that all that was established against the accused was that the accused had stocked these medicines and in that they had sold the medicines. The label did not prohibit the stocking of the drugs. It only prohibited the sale of the drugs. He therefore, urged that there Was no contravention of rule 65(17). I amnot prepared to agree with the learned Counsel. I am of the view that he word ‘stocked’ in rule (17) means ‘stocked for sale’ and that stocking for sale of drugs not meant to be sold is a violation of rule 65(17). I hold that the offence under section 18(a)(vi) read with rule 65(17) is established. 9. The third charge against the accused was that the accused failed to maintain records of purchase of drugs in contravention of section 18(a)(vi) read with rule 65(4) and 65(5)(3). The submission of the learned Counsel was that there was no proof of any purchase of the seized drugs by the accused and there fore the offence of failing to maintain records of purchase was not established. I am of the view that having regard to the enormous quantity of drugs which was seized from the shop the Court may safely presume that the drugs must have been purchased by the accused. There was therefore failure to maintain records of purchase. The learned Counsel also urged that there was no evidence that the drugs were stocked for sale. Again the quantity of the drugs is itself sufficient to lead to the inference that the drugs were stocked for sale. I, therefore, hold that there was a contravention of section 18(a)(vi) read with rules 65(4) and 65(5)(3). 10. The learned Counsel also urged that there was no evidence that the drugs were stocked for sale. Again the quantity of the drugs is itself sufficient to lead to the inference that the drugs were stocked for sale. I, therefore, hold that there was a contravention of section 18(a)(vi) read with rules 65(4) and 65(5)(3). 10. The last charge was that the accused failed to disclose the names, addresses and other particulars of the persons from whom the drugs were acquired an d there was thus a contravention of section 18-A of the Act. This offence is clearly established since neither before the trial nor at the trial the accused made any attempt to disclose the particulars of the persons from whom the drugs were acquired. 11. In the result each of the four respondents is convicted under section 27(b) read with section 18(a)(vi) and rule 65 (17), section 27(b) read with section 18 (a)(vi) read with rule 65(4) and 65(5) and section 28 read with section 18-A of the Drugs and Cosmetics Act. Each of the accused is sentenced to pay a fine of Rs. 100 for the offences under section 27(b) read with section 18(a)(vi) and rule 65(17) and in default of payment of fine the accused will undergo simple imprisonment for a period of one month. Each of the accused is sentenced to pay a fine of Rs. 100 for the offence under section 27(b) read with section 18(a)(vi) and rules 65(4) and 65(5)(3) made in default of payment of fine the accused will undergo simple imprisonment for a period of one month. Each of the accused is sentenced to pay a fine of Rs. 300 for the offence under section 28 read with section 18-A of the Act and in default of payment of fine the accused will undergo simple imprisonment for a period of three months. The appeal is allowed accordingly. K.N.R. ----- Appeal allowed.