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2010 DIGILAW 432 (AP)

Ch. Venkateswara Rao v. State of A. P.

2010-06-04

GOPALA KRISHNA TAMADA

body2010
JUDGMENT (1) The petitioner herein-A.1 along with four others was tried as accused in C.C.No.185 of 1997 on the file of the II Addl. Judicial Magistrate of First Class, Eluru, for the offences punishable under sections 18 (c) and 18-A r/w 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 (for short "the Act"). During the course of trial, on behalf of the prosecution, P.Ws.l to 3 were examined and Exs.P.l to P.11 and M.O.I were marked. No oral or documentary evidence was adduced on behalf of the accused. The learned Magistrate having assessed the entire evidence came to the conclusion that the other accused i.e. A.2 to A.5 are not guilty of the charges for which they were tried, but however, found the petitioner-A.l guilty of the charges for which he was tried, and accordingly, convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for one month for the offence punishable under Section 18(c) r/w 27(b)(ii) of the Act, and further sentenced him to undergo simple imprisonment for one month for the offence punishable u/s 18(a) r/w 28 of the Act, by judgment dated 06/12/1999. As against the said judgment, the petitioner-A.l filed Crl.A.No.266 of 1999 on the file of the Sessions Judge, West Godavari District at Eluru and the same was dismissed on 31.03.2004. Being aggrieved by the same, petitioner-A.l filed this Revision. (2) For the purpose of convenience and to avoid ambiguity in discussion, the parties are referred to hereinafter as they were arrayed in C.C.No.185 of 1997. Briefly, the allegations of the complaint are that A.1 is an allopathic medical practitioner in Vasavi Clinic, Pedavegi, West Godavari District and engaged in sale and distribution of drugs without possessing valid drug licence. A.2 is a clerk in the firm of A.3 and A.3 firm is in possession of valid drug licence under the Act. A.2 sold drugs to A.1 in violation of licence rules and procedure of the Act. A.4 is partner of A.5 firm. A.5 firm is having valid licence for sale and storage of drugs. i) On 19/07/1996 P.W.I, the Drugs Inspector, Eluru, raided the clinic of A.1 and found that A.l was in possession of huge quantity of drugs without any licence and seized all the drugs in the presence of mediators. A.4 is partner of A.5 firm. A.5 firm is having valid licence for sale and storage of drugs. i) On 19/07/1996 P.W.I, the Drugs Inspector, Eluru, raided the clinic of A.1 and found that A.l was in possession of huge quantity of drugs without any licence and seized all the drugs in the presence of mediators. During the course of seizure, A.l handed over the invoices issued by A.3 firm and A.5 firm. A.3 issued the invoices in the name of Dr. Ravi Kumar. Pursuant thereto, P.W.I verified the records of A.3 firm and A.5 firm on 01.08.1996 and 30.08.1996 respectively and confirmed the sale of medicines to A.1 by the said firms. The petitioner also could not reveal where he obtained certain items of drugs violating Section 18(a) of the Act. Thus, A.2 violated Section 18(a) (iv) r/w conditions of licence under Sec.20(b) and 21(b)which is punishable under Section 27(a) of the Act. Similarly, A.4 also violated Section 18(a) (vi) r/w conditions of licence under Section 20(b) and 21(b) of the Act which is punishable under Section 27(b) of the Act. Hence, the Drugs Inspector, Eluru, filed the complaint. (3) Heard both sides. (4) MR. C. Praveen Kumar, learned counsel for the petitioner-A.l, while drawing the attention of this Court to the said provisions of law, mainly contended that mere possession of drugs, even if accepted, cannot be an offence and it is for the prosecution to prove that the drugs are stored without having a valid licence for the purpose of sale. According to him, even if prosecution case is taken at its face value, no offence can be said to have been committed by the petitioner- A.l Per contra, the learned Additional Public Prosecutor opposed the said submission stating that the Courts below have rightly come to the conclusion that the petitioner is guilty of the said offences and the judgments of the Courts below need no interference. (5) In the light of the said contentions put forth by both the counsel, this Court looks into the provisions of law. (5) In the light of the said contentions put forth by both the counsel, this Court looks into the provisions of law. Section 18 (c) of the Act reads thus: "Manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter; Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis; Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality." (6) Section 27 of the Act is the penal provision under which the offence is punishable and the said provision reads thus: "Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter: - Whoever, 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- a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall bepunishable with imprisonment for a term which shall not be less than ten years butwhich may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more: Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulte rated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realized from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulte rated or spurious drugs referred to in this clause. Explanation: For the purposes of the second proviso, the expression "relative" means- (i) spouse of the deceased person; or (ii) a minor legitimate son, and unmarried legitimatedaughterandawidowedmother, or (iii) parent of the minor victim; or (iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or (v)any'person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death - a) theparent;or b) a minor brother or an unmarried sister; or c) a widowed daughter-in-law; or d) awidowedsister;or e) a minor child of a pre-deceasedson; or f) a minor child of a pre-deceased daughter where no parent of the child is alive; or g) the paternal grandparent if no parent of the members is alive; b) any drug- (i) deemed to be adulterated under Sectionl7A, but not being a drugreferred to in clause (a) or (ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more; Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years and of fine of less than one lakh rupees; c) any drug deemed to he spurious under Section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and with fine which shall not be less than three lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years but not less than three years and of fine of less than one lakh rupees; d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c) , in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees; Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. I find some force in the submissions made by the learned counsel for the petitioner. But, in my considered view, the same cannot be countenanced. It has become a practice in the mofussil areas to practise medicine without any authority of law. There are cases where innocent public in mofussil areas approach the persons without knowing their qualifications simply on the basis of their information that the person is a doctor and there are incidents where people died on account of the said practice by the persons who have no authority of law to practise medicine. In my considered view, this type of practice by unqualified medical practitioners is a menace to the Society, and under no circumstances, the same shall be encouraged. (7) NO doubt, in Mohd. Shabbir v. State of Maharashtra (1) AIR 1979 SC564 the Supreme Court had taken the view that mere possession is not an offence, but in my considered view, the facts of the said case have no application to the case on hand. In the said case, basing on a message from the Senior Railway Sub Inspector, Bhusawal, that the appellant therein had been caught at the Bhusawal railway station with 17 plastic containers containing 17,000 white coloured tablets, the Drugs Inspector filed a complaint against the appellant therein. The Apex Court held that possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act and extended the benefit of doubt to the appellant therein. Same is the case with other judgment of this Court relied on by the leaned counsel for the petitioner. Herein is a case where the petitioner is an unqualified medical practitioner and he is practising medicine without any authority of law. In fact, in the complaint itself, it is stated that the petitioner is an unqualified medical practitioner doing Allopathic medical practice in the name and style of "Vasavi clinic" at Pedavegi, West Godavari District and he is engaged in sale and distribution of drugs without possessing valid drug licence. Further, as per the evidence of P.W.I, at the relevant point of time i.e. when he visited the clinic of the petitioner, he saw the petitioner distributing medicines to patients in the clinic. In those circumstances, this Court can presume that the petitioner is in possession of huge stocks of drugs only for the purpose of sale. Further, as per the evidence of P.W.I, at the relevant point of time i.e. when he visited the clinic of the petitioner, he saw the petitioner distributing medicines to patients in the clinic. In those circumstances, this Court can presume that the petitioner is in possession of huge stocks of drugs only for the purpose of sale. Section 114 of the Indian Evidence Act may be relevant and the same is extracted as under: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." (8) When it is the case of the prosecution that the petitioner is an unqualified medical practitioner practising allopathic and he is found to have been distributing medicines to patients in his clinic, definitely this Court can draw presumption u/s 114 of the Indian Evidence Act. Of course, the said presumption under section 114 of the Evidence Act is rebuttable, but the petitioner did not come forward to establish the fact that the medicines are stored for some other purpose, but not for the purpose of distribution or sale. In those circumstances, this Court has no hesitation to come to the conclusion that the petitioner is guilty of the offences for which he was tried. Accordingly, I see no merits in this revision. The learned counsel submits that the alleged offence took place in the year 1997 and the petitioner had suffered sentence of about 10 days. In those circumstances, this Court reduces the sentence of imprisonment to that of the period already undergone by the petitioner and confirms the sentence with regard to fine, imposed by the trial court. Accordingly, the Criminal Revision Case is disposed of.