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2004 DIGILAW 20 (PNJ)

Pawan Kumar Bansal v. State of Haryana

2004-01-07

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Pawan Kumar Bansal petitioner herein was booked for the offence punishable under sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred as the Act) for stocking and exhibiting seven types of allopathic drugs for sale and distribution in his shop known as Delhi Wala Hospital without possessing a valid licence required under the Act and the Rules framed thereunder. According to the allegations, it amounts to contravention of section 18(c) read with rule 2(ee) of the Act. 2. After facing the trial, the petitioner stands convicted by learned Chief Judicial Magistrate, Hissar vide, judgment dated 7.2.1992 under section 127(b)(ii) and section 28(b)(ii) of the Act and was sentenced to undergo RI for one year and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo RI for 3 months under section 27(b)(ii) of the Act and RI for 2 months under section 28(b)(ii) of the Act. However, all the sentences are ordered to run concurrently. Not satisfied with the judgment of conviction and sentence he filed an appeal which met the same fate vide impugned judgment dated 2.3.1994 passed by learned Additional Sessions Judge, Hissar. Hence, this revision. 3. I have heard Mr. Sanjiv Pabbi, learned counsel for the petitioner and Mr. Bijender Dhankar, learned Assistant Advocate General, Haryana. With their assistance I have also gone through the entire record. 4. Mr. Pabbi at the very outset has submitted that he does not assail the impugned judgment on merits and has prayed for a lenient view so far as the quantum of sentence is concerned. In support of his arguments, Mr. Pabbi has relied upon a judgment of this Court rendered in Surinder Kumar Verma v. The State of Haryana, 1987(2) RCR 201. 5. The learned counsel then relies upon another judgment of this Court rendered in Rashpal Singh v. State of Haryana, 2003(2) RCR(Crl.) 441 in which while upholding the conviction of the accused under the Drugs Act, his substantive sentence was reduced to the period already undergone by him keeping in view the agony suffered by him on account of protracted trial. The learned counsel then relies upon another judgment of this Court rendered in Rashpal Singh v. State of Haryana, 2003(2) RCR(Crl.) 441 in which while upholding the conviction of the accused under the Drugs Act, his substantive sentence was reduced to the period already undergone by him keeping in view the agony suffered by him on account of protracted trial. The learned counsel further contends that although minimum sentence provided under section 27(b) of the Act is one year but the Court may for any adequate and special reasons may impose a sentence for a term of not less than one year and in the present case the petitioner has already suffered the agony of protracted trial. Besides this he also remained in custody for about a month after his appeal was dismissed and as such he now deserves a sympathetic tilt so far as quantum of sentence is concerned. 6. The learned State counsel has, however, refuted the submissions made by learned counsel for the petitioner and states that the petitioner does not deserve any concession on the point of quantum of sentence. 7. Although the conviction of the petitioner as recorded by the trial court and maintained by the appellate court is not assailed on merits yet I have gone through the impugned judgments and am of the view that the conviction earned by the petitioner is well merited. I, therefore, confirm the same. 8. So far as the sentence part is concerned, I find force in the submission made by Mr. Pabbi, learned counsel for the petitioner. The recovery memo prepared by the prosecution agency Ex. P5 reveals that the following allopathic drugs were recovered :- 1. Benadryl expectorant 2. Avil injection 3. Tone up syrup 4. Corex Cough syrup 5. Corex Cough syrup 6. Deptrim tablets 7. Iodine Tablets 9. Admittedly, the aforesaid allopathic drugs are not spurious or adulterated. The present case relates to the year 1988. The petitioner has already suffered the agony of protracted trial of 15 years. He has been punished for stocking drugs without a valid licence. I am of the view that the judgment rendered in Surinder Kumar Vermas case (supra) squarely covers the case of the petitioner for the purpose of benefit of probation and I find no reason as to why this prayer should not be allowed. He has been punished for stocking drugs without a valid licence. I am of the view that the judgment rendered in Surinder Kumar Vermas case (supra) squarely covers the case of the petitioner for the purpose of benefit of probation and I find no reason as to why this prayer should not be allowed. In Surinder Kumar Vermas case (supra) it has been observed by this Court that no doubt minimum punishment has been provided in the Act for the offence committed by the petitioner but in the light of the Full Bench judgment of this Court rendered in Joginder Singh v. State of Punjab, 1980 CLJ (Criminal) 150, the prescription of minimum sentence is no bar to the applicability of sections 360 and 361 Code of Criminal Procedure and sections 4 and 6 of the Probation of Offenders Act. In the above said case the drugs were not found spurious or adulterated. The recovery was effected in 1983. Keeping in view all the facts and circumstances of the case, the petitioner was granted the benefit of probation. In my view the present petitioner also deserves the same relief. 10. Consequently, the substantive sentence awarded to the petitioner is set aside and instead he is ordered to be released on probation for a period of one year of his entering into a bond in the sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the trial court. The petitioner shall also pay a sum of Rs. 5000/- as costs of the proceedings. It has been brought to my notice that the fine has already been deposited in the trial court by the petitioner. The same amount be now adjusted towards the costs of the proceedings. The bonds now to be submitted would be without the supervision of Probation Officer. 11. The requisite bonds shall be furnished before the trial court within one month after the receipt of certified copy of the order, failing which the petitioner shall have to undergo the substantive sentence imposed upon him by the learned trial court. With the modification in the quantum of sentence as indicated above, the present revision petition is dismissed on merits. Revision dismissed.