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2008 DIGILAW 410 (PAT)

State of Bihar v. Shailesh Kumar

2008-02-26

body2008
S.K. SHARMA, J.:- This Govt. Appeal has been filed against the judgment dated 9.9.1992 passed by Sri Uma Shankar Prasad, 2nd Additional Sessions Judge, Nawadah in Cr. Appeal No. 3/7 of 1990/1992 by which he has set aside the judgment dated 26.3.1990 passed by Sub-divisional Judicial Magistrate, Nawadah in G.R. No. 180 of 1980 (T.R. No. 460 of 1990) convicting shailesh Kumar (respondent in this appeal) under Section 27(b) of Drug and Cosmetics Act. (hereinafter to be referred to as "the Act" and sentencing him to undergo rigorous imprisonment for one year and a fine of Rs. 5000/- and, in defualt, to undergo rigorous imprisonment for six months. 2. The prosecution case is that the Drug Inspector, Kaua Koul, made an inspection of the medicine shop of respondent Shailesh Kumar situated in Kaua Kaul. During inspection, he collected sample of liviferol Batch No. 7664 and sent one part of it to Central Medicine laboratory, Calcutta for chemical examination on 1.11.1977 and kept one part of the sample in his office for further action. The report was received from Central Medicine Laboratory, Calcutta on 29.12.1977 and the drug was found of substandard. Thereafter, the Drug Inspector asked the respondent to disclose the name and address of the supplier of that, medicine but he could not tell the name and address of the supplier and he also failed to produce any bill for purchase of said drug. The said Inspector took sanction for prosecution of respondent from the authority concerned and after receipt of sanction order, filed a complaint in the court of Chief Judicial Magistrate, Nawadah for violation of Sections 18A and 18A(i) of the Act by the respondent. Thereafter cognizance was taken under Sections 27(b) and 28 of the Act. Charges were framed against the accused under the said Act who pleaded innocence and preferred to face the trial. 3. After considering the evidences and other materials brought on the record, the trial court found the accused guilty under Section 27(b) of the Act and sentenced him thereunder, as stated above, and acquitted him under Section 28 of the Act. 4. The convict preferred appeal against the judgment of conviction and sentence. The lower appellate court after hearing the parties and considering the materials on record found the appellant Shailesh Kumar not guilty and acquitted him from the charge after setting aside the judgment of the learned Magistrate. 4. The convict preferred appeal against the judgment of conviction and sentence. The lower appellate court after hearing the parties and considering the materials on record found the appellant Shailesh Kumar not guilty and acquitted him from the charge after setting aside the judgment of the learned Magistrate. Hence this appeal. 5. learned counsel appearing or the State-appellant has submitted that the lower appellate court has erred in holding that the cognizance was barred according to Section 468 of the Code of Criminal Procedure though it was a continuing offence. 6. learned counsel for the respondent Shailesh Kumar has submitted that the judgment of the lower appellate court is correct and requires no interference by this court. 7. Section 468 of the Code of Criminal Procedure prescribes as follows: 468: Bar to taking cognizance after lapse of period of limitation.- (1) except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 8. Section 27(b) of the Act prescribes that maximum period of punishment shall be three years. The present occurrence occurred on 4.7.1977 and cognizance was taken on 3.11.1980 i.e. after lapse of more than three years. 9. This is not a case of continuing offence, rather it is a case in which the sample for examination was taken on one date and the accused was charged only for committing offence on a particular date and he was not charged for continuing offence. It was not the case of the prosecution that it was continuing offence. So it is not in dispute that occurrence was of one date i.e. 4.7.1977 and cognizance was taken after more than three years. On this score, the lower appellate court found that the judgment of the trial court was illegal. Not only that, there were other legal infirmities in the judgment as the procedure of inspection as prescribed under Section 23 of the Act was not followed. On this score, the lower appellate court found that the judgment of the trial court was illegal. Not only that, there were other legal infirmities in the judgment as the procedure of inspection as prescribed under Section 23 of the Act was not followed. According to Section 23 of the Act, if the Inspector takes a sample of drug, then it was to keep it in sealed cover after preparing a seizure list in presence of independent witnesses and a copy of the seizure list shall be handed over to the accused and the seized sample shall be divided into three equal portion. In the present case, the sample was taken and it was divided only into two portion. So inconsistency was there. Another aspect considered by the court below is that after receipt of report from analyst, a copy of the same was to be provided to the accused within 20 days and in view of provision of Section 25 of the Act which has not been done in the present case. This is also not under challenge. Therefore, the lower appellate court by considering all aspects of the matter came to the finding that the prosecution has not been able to prove its case beyond all reasonable doubts and hold that the appellant Shailesh Kumar was entitled to be acquitted and set aside the judgment of the trial court. 10. After analysing the entire materials on record, I am of the view that the judgment of the lower appellate court is correct and requires no interference by this Court. 11. In the result, this Govt. Appeal is without merit and it is dismissed accordingly.