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2002 DIGILAW 188 (GAU)

Sirajul Hoque v. State of Assam

2002-05-03

D.BISWAS

body2002
D. BISWAS, J. - The judgment of conviction and sentence passed by the learned Chief Judicial Magistrate, Nalbari in C.R. Case No. 541 of 1990 convicting the accused petitioner under Section 27 read with Section 18(c) of the Drugs and Cosmetics Act, 1946 is in challenge in this appeal. The punishment imposed is RI for one year and fine of Rs.500/- with imprisonment for a further period of one month in default of payment thereof. 2. I have heard Mr. M.A. Laskar, learned senior counsel for the petitioner and also Mr. S.K. N. Mahammad and Mr. K. Munir, learned Public Prosecutors for the State of Assam. 3. The Inspector of Drugs, Guwahati submitted a complaint before the learned Chief Judicial Magistrate, Nalbari alleging that the petitioner had stored and exhibited medicine for sale in the premises of a Pharmacy under the name and style of “M/ s. Santi Medical Store” at Kaplabari under Mukalmua Police Station without any valid licence in contravention of the aforesaid provisions of law. Charge was framed accordingly and on conclusion of the trial, the Judgment of conviction was pronounced. 4. Mr. Laskar, learned senior counsel argued that the petitioner was not the owner of the Pharmacy and he was learning the affairs of a Pharmacy at the time when the inspector visited and seized the medicines. According to him, the petitioner was under training and had applied for licence. According to the learned counsel, the evidence on record under the given situation do not warrant conviction of the petitioner. Besides, it has been pointed out by the learned counsel that the Pharmacy belongs to one Dr. C.K. Sarma, who had a valid licencee to deal in medicine and, as such, the judgment of conviction and sentence needs reversal. 5. According to PWs 1,2 and 4, during the course of search medicines were seized from the aforesaid Pharmacy in presence of the petitioner who claimed to be the owner thereof, but failed to produce any valid licence. PW 3 also supported the seizure by the Inspector. The evidence of the witnesses clearly indicate that the petitioner was found in charge of the Pharmacy at the time of search and seizure. Their version could not be assailed during the course of cross-examination. 6. The defence did not examine any witness. Even Dr. C.K. Sharma who was stated to be the owner of the Pharmacy was not examined. The evidence of the witnesses clearly indicate that the petitioner was found in charge of the Pharmacy at the time of search and seizure. Their version could not be assailed during the course of cross-examination. 6. The defence did not examine any witness. Even Dr. C.K. Sharma who was stated to be the owner of the Pharmacy was not examined. No licence was produced in the name of Dr. C.K. Sarma. Exhibit-4 Series, the cash memos, vide which Dr. C.K. Sharma purchased some medicine are found not to be the vouchers for the medicines seized vide seizure list, Exhibit-1. The Cash Memos relied upon by the petitioner in support of his claim that it was Dr. C.K. Sharma who had stored the medicines for sale cannot salvage the situation. Non-examination of Dr. C.K. Sharma goes to show that the defence plea is nothing but an attempt to camouflage the illegal storage and sale of medicine by the petitioner. Situation would have, however, been altogether different if it could be shown that the Pharmacy was owned by Dr. Sharma under a valid licence. The statement of PWs 1, 2 and 4 that the petitioner had claimed to be the oowner of the Pharmacy clearly indicate petitioner's complicity in the matter. 7. The Supreme Court in Mohd. Shabir -Versus- State of Maharashtra, (1997) 1 SCC 568 interpretating the provisions of Section 27 held as follows : “4. On an interpretation of Section 27, it seems to us that the arguments of Mr. Singh are well founded and must prevail. The words used in Section 27, namely, manufacture for sale, “sells”, have a comma after each clause but there is no comma after the clause “stocks or exhibits for sale”. Thus the section postulates three separate categories of cases and no other ; (1) manufacture for sale ; (2) actual sale ; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word “stocks” clearly indicates that the clause “stocks or exhibit for sale” is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, Section 27 of the Act would not be attracted.....” 8. In the instant case, there was storage of medicine in the Pharmacy, and the said medicines were exhibited for sale. In the instant case, there was storage of medicine in the Pharmacy, and the said medicines were exhibited for sale. No alternative view is deducible if the evidence of all the four PWs are read together. Therefore, the learned Court below has rightly convicted the appellant for the offence alleged. 9. In the result, the criminal revision is dismissed.