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2012 DIGILAW 305 (HP)

SANJAY GARG v. STATE OF HIMACHAL PRADESH

2012-05-24

KULDIP SINGH

body2012
JUDGMENT : KULDIP SINGH, J. 1. The petitioner has assailed judgment dated 25.2.2006 passed by learned Additional Sessions Judge, Solan in Criminal Appeal No. 6-NL/10 of 2004, affirming judgment dated 24.4.2004 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Case No. 7/3 of 2002 convicting the petitioner and sentencing him u/s 27(b)(ii) for fifteen days simple imprisonment and fine of Rs. 2500/-, u/s 28, fine of Rs. 1000/- under the Drugs and Cosmetics Act, 1940 (for short Act). The facts in brief are that Drugs Inspector, Solan filed a complaint against the petitioner stating therein that on 6.11.2001 the complainant and Sher Singh Thakur were on joint official tour to Baddi. The complainant found petitioner stocking and distributing drugs to the Anil Kumar, proprietor of M/s. Anil Medicos, Sai Road, Baddi by vehicle bearing No. CH-03D-9095 without any drug licence as required under the Act read with Rules under the Drugs and Cosmetics Rules, 1945 (for short Rules). The petitioner did not disclose from where he had acquired drugs found in his possession. 2. The Drug Inspector seized the drugs in presence of witnesses Chaman Lal, Anil and Sunil Kumar. The sampling and sealing were done on the spot. The sample was sent to Government Analyst, Kandaghat. On testing Government Analyst submitted report, the sample was found to be drug as per the claim made on the label. It has been stated in the complaint that petitioner has contravened Section 18(C), Section 18A of the Act by stocking and distributing, offering for sale drug without any valid drug licence and by not disclosing information as required from him which is punishable u/s 27(b)(ii) and Section 28 of the Act. 3. The petitioner was summoned. The notice of accusation was put to petitioner u/s 27(b)(ii) and Section 28 of the Act. The petitioner pleaded not guilty and claimed trial. The prosecution has examined six witnesses and produced some documents. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the prosecution case. He has stated that at the relevant time arguments took place between Drug Inspector and petitioner, as a result of which the Drug Inspector has falsely implicated the petitioner in the case. The petitioner examined two witnesses in defence. On conclusion of trial, the learned Sub Divisional Judicial Magistrate convicted and sentenced the petitioner as noticed above. He has stated that at the relevant time arguments took place between Drug Inspector and petitioner, as a result of which the Drug Inspector has falsely implicated the petitioner in the case. The petitioner examined two witnesses in defence. On conclusion of trial, the learned Sub Divisional Judicial Magistrate convicted and sentenced the petitioner as noticed above. The appeal filed by petitioner has been dismissed by learned Additional Sessions Judge, Solan on 25.2.2006, hence revision. 4. Heard and perused the record. The learned Counsel for the petitioner has submitted that proper notice of accusation was not put to the petitioner that petitioner had no licence to distribute the drugs from a vehicle. In absence of such accusation the learned Magistrate has erred in convicting and sentencing the petitioner. The learned Additional Sessions Judge has also repeated the same mistake by affirming the judgment dated 24.4.2004 of the learned Magistrate. 5. The notice of accusation was put to the petitioner on 19.12.2002 stating therein that on 6.11.2001 at Baddi he was found in possession of drug named Oral Suspn ROSCILLIN-AMX without a valid licence as required u/s 18(C) of the Act and thereby committed offence punishable u/s 27(b)(ii) of the Act. It was also put to the petitioner that he had failed to disclose to the Drugs Inspector from where he had purchased the drug named Oral Suspn ROSCILLIN-AMX as required u/s 18(A) of the Act and thereby committed offence punishable u/s 28 of the Act. 6. In para-2 of the complaint it has been stated that complainant found petitioner stocking and distributing the drug to proprietor Anil Kumar of M/s. Anil Medicos by a vehicle bearing No. CH-03D-9095 without any drug licence to distribute the drugs on Form-20BB or Form-21BB as required under the Act. The Rule 62D provides licence to sell drugs by wholesale or distribute drugs from a motor vehicle. The petitioner thus was aware of the allegations against him including the allegation that he was found distributing drugs from a vehicle without valid licence. The prosecution led evidence and ultimately it has been proved that the petitioner had no licence to distribute the drugs from a vehicle. The petitioner after his conviction filed appeal before learned Additional Sessions Judge. 7. The prosecution led evidence and ultimately it has been proved that the petitioner had no licence to distribute the drugs from a vehicle. The petitioner after his conviction filed appeal before learned Additional Sessions Judge. 7. The perusal of grounds of appeal would show that the petitioner in the appeal has not taken any ground that accusation put to him by learned Magistrate was not proper or it was not in accordance with law, he has been misled and serious prejudice has been caused to him to defend himself. It has also not been pointed out that during trial the petitioner pointed out to the learned Magistrate any defect in the accusation. The silence of the petitioner during trial and no specific ground in the grounds of appeal regarding alleged defective accusation lead to inference that petitioner was aware of the accusation and the allegations that he was found selling drugs from a vehicle without licence. Once the petitioner was aware about the case against him, in revision he cannot be heard to say that accusation was not properly put to him in the trial Court. 8. The Section 464 Cr.P.C. provides that no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. In the present case, there is enough material to infer that no prejudice has been caused to the petitioner even if it is assumed that accusation put to the petitioner was not upto to the mark as claimed by the petitioner. At the time of hearing of the revision, the learned Counsel for the petitioner has fairly stated that there is nothing on record to show that petitioner was having valid licence under the Act for distribution of drugs from a vehicle. In these circumstances, it cannot be said that the learned Magistrate has erred in convicting the petitioner u/s 27(b)(ii) and Section 28 of the Act. Similarly, learned Additional Sessions Judge has not committed any illegality in affirming the conviction of the petitioner. 9. In these circumstances, it cannot be said that the learned Magistrate has erred in convicting the petitioner u/s 27(b)(ii) and Section 28 of the Act. Similarly, learned Additional Sessions Judge has not committed any illegality in affirming the conviction of the petitioner. 9. The learned Counsel for the petitioner has submitted that the petitioner was having a drug licence to sell the drugs. The case against the petitioner is that he was found selling drugs from a vehicle without licence. The learned Counsel for the petitioner has submitted that occurrence took place on 6.11.2001. The petitioner has faced trial, appeal and revision for the last about eleven years and in these circumstances lenient view may be taken. The Section 27(b)(ii) at the relevant time provided punishment not less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees. The Court however, 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 and of fine of less than five thousand rupees. The Section 28 at the relevant time provided punishment for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both. 10. In the present case, the learned Magistrate has exercised the discretion by convicting the petitioner by invoking proviso to Section 27(b)(ii). The petitioner is facing the trial, appeal, revision for the last about 11 eleven years, therefore, it will be sufficient, if the petitioner is convicted u/s 27(b)(ii) till the rising of the Court and fine of Rs. 5000/- and u/s 28 fine of Rs. 1000/-. In default of payment of fine simple imprisonment of fifteen days on each count. The petitioner is present in the Court and has been identified by learned Counsel for petitioner. The impugned judgment is accordingly modified on sentence part only as held above. 11. No other point was urged. The petition stands disposed of on above terms.