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2006 DIGILAW 1473 (AP)

D. NAGA KRISHNA v. STATE OF A. P.

2006-11-23

GOPALA KRISHNA TAMADA

body2006
( 1 ) THE petitioner herein was tried in C. C. No. 135 of 1998 by the Judicial Magistrate of first Class, Atmakur, for the alleged offence punishable under Section 18 (c) read with 27 (b) (ii) of the brugs and Cosmetics Act, 1940 (for short "the Act" ). The learned Magistrate, ultimately, found him guilty of the alleged offence and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5000/-, in default, to suffer simple imprisonment for a period of one month. Against the judgment, dated 13-4-2001, the petitioner preferred Crl. A. No. 79 of 2001 and the learned I Additional District and Sessions judge, Kurnool, while dismissing it, confirmed the conviction and sentence imposed by the trial Court. Aggrieved by the same, the petitioner has filed this Criminal Revision case. ( 2 ) THE brief facts of the case are that the complainant is the Drug Inspector. The accused is the sole proprietor of an unlicenced Medical shop and running it under the name and style of M/s. Kranthi Medical and General Stores, atmakur. On 4-9-1998, the complainant, with the assistance of other was Drug Inspectors in the presence of two independent witnesses inspected the Medical shop of the accused, who was in possession of licence in Form 20 and 21 valid upto 31 -12-1995 and did not apply for renewal of the licence was required under the Drugs and Cosmetics Rules, 1945. The accused was also found selling certain drugs and the complainant seized the stocks since the proprietor contravened the above provisions of the Act. On 4-9-1998, the complainant informed the learned Judicial Magistrate of first Class, Atmakur, about the Seizure and prayed for safe custody of the seized property. After receipt of sanction orders (prosecution orders), the complainant filed the complaint. ( 3 ) SRI Praveen Kumar, learned counsel for the petitioner, has drawn my attention to section 18 (c) of the Act and contended that there is absolutely no material whatsoever establishing the fact that M. Os. 1 to 36 are either stocked or exhibited or offered for sale and hence, the petitioner could not have been convicted of the offence punishable under section 18 (c) read with 27 (b) (ii) of the Act. In this context, he has mainly relied upon a judgment of the Apex Court reported in Mohd. 1 to 36 are either stocked or exhibited or offered for sale and hence, the petitioner could not have been convicted of the offence punishable under section 18 (c) read with 27 (b) (ii) of the Act. In this context, he has mainly relied upon a judgment of the Apex Court reported in Mohd. Sabbir v. State of Maharashtra. ( 4 ) PERCONTRA, the learned Additional Public prosecutor has opposed the said contention and submitted that the trial Court and the lower appellate Court, on considering the entire material placed on record, came to the conclusion that the petitioner was guilty of the alleged offence and thus, the judgment impugned needs no interference. ( 5 ) THE main object of the Act is to prevent substandard in drugs presumably for maintaining high standards of medical treatment. Section 18 of the Act deals with prohibition of manufacture and sale of certain drugs and cosmetics. Clause (c) provides that no person shall himself or by other person on his behalf shall manufacture for sale or for distribution or sell, or stock or exhibit or offer for sale, or distribute any drugs or cosmetics except in accordance with the conditions of a licence issued for such purpose under Chapter iv of the Act. Section 27 of the Act provides for punishment in a case where any person either himself or by any other person on his behalf manufactures for sale or for distribution or sells, or stocks or exhibits or offers for sale or distributes any drugs or cosmetics without a valid licence as required under Clause (c) of section 18 of the Act. ( 6 ) IN order to sustain a conviction under section 27 (b) (ii), it must not only be proved that the accused kept the medicines without having licence, but it must also be proved that they were kept for selling. It has to be established by the prosecution affirmatively that the stock is for the purpose of sale or for distributing to the customers. In view of the workings of Section 18 (c) of the Act, it must also be proved by the prosecution that the stocking of the medicine must be only for sale. The words used in Section 27, namely, "manufacture for sale, sells" have a common after each clause, but there is no comma after the clause "stocks or exhibits for sale". The words used in Section 27, namely, "manufacture for sale, sells" have a common 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 i. e. (1) manufacture for sale (2) actual sale and (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any common after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking them for the purpose of sale and unless all the ingredients of this category are satisfied Section 27 of the Act would not be attracted. In fact, this was the view taken by the Apex Court in the judgment referred to above, but when the facts of the case on hand are taken into consideration, the contention of the learned counsel for the petitioner that the petitioner was found only in possession of the stocks which may at best be stocked and there is absolutely no evidence that they are meant for sale, and hence, the said proviso i. e. Section 27 has no application, cannot be accepted. Had the drugs i. e. M. Os. 1 to 36 been found in possession of any other person, who was not having a licence or not carrying on business in medicines, such a view is possible. In the instant case, the petitioner was having a drugs licence valid up to 31-12-1995 and during the course of inspection held on 4-9-1998, the medicines i. e. M. Os. 1 to 36 were found. In fact, the shop of the petitioner still continues the name of kranti Medical and General Stores. Further, exs. P-27 to P-32 clearly indicate that these medicines were sold by some other wholesalers to Kranti Medical and General stores thinking that the petitioner was having a valid licence. Hence, the contention put forth by the learned counsel that M. Os. 1 to 36 are not stocked forthe purpose of sale, cannot be accepted. To be more precise, it can be explained as follows: if 'x' who is only a Kirana merchant, is found in possession of M. Os. 1 to 36,then the prosecution must also prove that M. Os. 1 to 36 are not only found in possession of 'x' but also they are meant for sale. To be more precise, it can be explained as follows: if 'x' who is only a Kirana merchant, is found in possession of M. Os. 1 to 36,then the prosecution must also prove that M. Os. 1 to 36 are not only found in possession of 'x' but also they are meant for sale. If the same medicines are found in possession of 'y', who was having an expired licence of drugs, but running the business in Kirana and the shop's name indicates that it is a Medical and General stores, then it is not necessary for the prosecution to explain that the stocks are also meant for sale because the board "medical" clearly indicates that the stocking is with an intention to sell the stocks. ( 7 ) FOR the aforementioned reasons, I see no error in the judgment impugned, and accordingly, this Criminal Revision Case is liable to be dismissed. ( 8 ) THE residual question is only with regard to the sentence. As it is submitted by the learned counsel for the petitioner that the alleged offence took place on 4-9-1998 i. e. nearly 8 years ago, this Court is of the view that the sentence of simple imprisonment can be reduced by invoking the provision under section 27 of the Act. Considering the long passage of time, the nature of accusation and having regard to the fact that the petitioner has already undergone a sentence of about 15 days as under-trial prisoner immediately after the pronouncement of judgment in appeal, this Court is of the view that the sentence of simple imprisonment for one year is reduced to the period of sentence which the petitioner has already undergone, but the sentence of fine imposed by the trial Court and confirmed by the lower appellate Court shall be maintained. ( 9 ) WITH the above modification of sentence, this Criminal Revision Case is dismissed. .