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2013 DIGILAW 118 (HP)

State of Himachal Pradesh v. Avtar Sharma

2013-02-27

DEV DARSHAN SUD

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JUDGMENT Dev Darshan Sud, J. The State has challenged the acquittal of the respondent for offence under Section 18 (c) read with Section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’). 2. The respondent was prosecuted for violation of the provisions of the Act (supra) on the allegations that the respondent was in possession of a variety of allopathic medicines in his shop which had been kept for sale by him. Inspector Navneet Marwah PW1 inspected the premises of M/s Sharma Clinic, Kandwal, District Kangra and according to him, the accused was the proprietor of this shop. He states in evidence that he inspected the shop of the accused on 26.9.1996 and found a large quantity of drugs stocked in the shop. He was asked to produce the licence, authorizing him to stock the medicines and authority to sell them, which was not produced. He seized the entire stock of medicines and entered the same in Form No. 16 (Ext.PW1/B) in the presence of witnesses. On 27.9.1996 permission was obtained for taking the drugs into custody. 3. Parkash Chand, PW3, and C. Abhay Singh PW4 supported the case of the prosecution. They stated that on 26.9.1996 they had accompanied PW1 Navneet Marwah and in their presence the drugs were recovered. Two independent witnesses PW2 Rashpal Pathania and PW5 Dilsher Singh did not support the prosecution case. They only stated that the police had procured their signatures on some papers and no drugs were recovered in their presence from the shop of the accused. These witnesses were declared hostile and they were subjected to lengthy cross examination but they stuck to their original stand. 4. The learned trial Court on the basis of the statement of the Drug Inspector PW1 Navneet Marwah, PW3 Parkash Chand and PW4 C. Abhay Singh convicted the accused holding that two independent witnesses PW2 Rashpal Pathania and PW5 Dilsher Singh have admitted their signatures on Ext.PW1/B. The Court then holds that the accused was a medical practitioner and as a consequence he was in possession of the seized medicines. 5. The accused appealed. The learned Sessions Judge holds that Inspector Navneet Marwah PW1 admits in his cross examination that there were ten shops near the clinic of the accused but nobody was joined by him in the investigation. 6. 5. The accused appealed. The learned Sessions Judge holds that Inspector Navneet Marwah PW1 admits in his cross examination that there were ten shops near the clinic of the accused but nobody was joined by him in the investigation. 6. PW3, Parkash Chand, who was a peon in the office of CMO, supported the case of the prosecution. He stated that he as well as the other witness C. Abhay are the stock witnesses in about twenty cases though they denied the suggestion that a false case has been planted against him. From the evidence on record the learned Appellate Court holds that these witnesses have admitted that some patients were sitting there but no medicines were dispensed in his presence. None of them were joined in the investigation. The learned Appellate Court then adverted to the evidence of PW2 Rashpal Pathania and PW5 Dilsher Singh who have stated that they were asked by the police to append their signatures on some papers. PW2 Rashpal Pathania states that the accused was not dealing in allopathic medicines but he provides/prescribes/dispenses homeopathic medicines. This witness states that the police had come to him with a box and two papers and he was asked to affix his signatures on some papers. PW2 Rashpal Pathania was the Pardhan of the area and he has never seen the accused dealing in allopathic medicines but states that he deals in homeopathic medicines. He could not say that what was kept in the box. 7. Similarly, PW5 Dilsher Singh states that no medicines were seized in his presence but he was made to affix his signatures on the box near the shop of the accused. He further states that the accused never dealt in allopathic medicines nor the same were kept in his shop. He states that the accused used to dispense and deal in homeopathic medicines. The Court then holds that no documents etc. were taken from the shop of the accused, no prescription slip and cash memo issued by him to corroborate the fact that he in fact was dealing with allopathic medicines was recovered. The Court further holds that the factum that the accused had affixed his signatures on the box was not put to him. were taken from the shop of the accused, no prescription slip and cash memo issued by him to corroborate the fact that he in fact was dealing with allopathic medicines was recovered. The Court further holds that the factum that the accused had affixed his signatures on the box was not put to him. Further there is no receipt on record which was issued by the accused regarding receipt of copy of Ext.PW1/B. In these circumstances, the accused was acquitted of the offences. 8. I have heard learned Additional Advocate General for the State and learned counsel appearing for the respondent. It is submitted that merely because the witnesses of the prosecution consist of official witnesses, their statements cannot be disbelieved per se as being parochial and cannot be discarded on the grounds that they are not speaking the truth. The seizure of medicines has been proved beyond reasonable doubt and the fact that the accused did not possess any licence to stock, prescribe and dispense these medicines has also been proved. 9. The argument though attractive, but cannot be accepted. True two independent witnesses have been declared hostile. Adverting to the evidence of PW2 Pardhan Rashpal Pathania, I do not find anything in his statement that this witness has special affinity to the accused and is not speaking the truth. He was corroborated on the material particulars by PW5 Dilsher Singh. After considering the evidence of these two witnesses, I find that the learned Appellate Court has not committed any error in acquitting the respondent. Moreover, it is the prosecution case that a number of people were waiting in the clinic of the accused and they have not been joined in investigation as witnesses nor any effort has been made to associate the shopkeepers in the vicinity. That apart, the best evidence would that of the patients who could have deposed with respect to the fact as to whether the accused was prescribing and selling any allopathic medicine. No prescription slips, patient register/record were produced in evidence. Surely, this would have been clinching evidence in the case. In these circumstances, I find no illegality in the judgment of the learned Appellate Court. This appeal is accordingly dismissed. Bail bonds furnished by the accused shall stand discharged.