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2013 DIGILAW 828 (PNJ)

State v. Mohar Singh Saini

2013-07-08

RITU BAHRI

body2013
ORDER 1. The State has come up on appeal against the judgment dated 15-4-2010 passed by the Chief Judicial Magistrate, Rohtak, whereby the accused-respondent has been acquitted of the charges under Sections 27(b)(ii) and 28 of the Drugs and Cosmetic Act, 1940 (hereinafter referred as the Act) by giving him benefit of doubt. 2. The complaint was filed by the District Drugs Inspector against Mohar Singh Saini-respondent alleging that on 20-4-1998, the complainant along with Dr. G. N. Aggarwal, Medical Officer, visited the shop of the respondent, which is situated at Chamanpura, Rohtak, and found that he was running a hospital in the name and style of Saini Hospital and was found to have stocked and exhibited for sale and distribution many allopathic drugs. One Balwant Singh was joined by the complainant as a public witness. 16 types of drugs were recovered from the shop, which were put in the box. The respondent also recorded his statement on Form-16 regarding seizure of the drug. Thereafter, on 21-4-1998, the sealed box was produced before the Chief Judicial Magistrate, Rohtak and custody orders were obtained. After seeking necessary permission to launch the prosecution, the present complaint was filed against the respondent on the allegation that by having stocked allopathic drugs for sale and distribution, without any valid Drugs Sale Licence and without being registered medical practitioner, he contravened the provisions of Section 18(c) of the Act, which is punishable under Section 27(b)(ii) of the Act. 3. Charges against the respondent was framed on 29-7-2008 and thereafter, prosecution examined two witnesses in after charge evidence. The evidence of the prosecution was closed by order on 8-12-2009. Statement of the respondent under Section 313, Cr. P.C. was recorded, wherein all the incriminating evidence was put to him. The respondent denied all the allegations and pleaded his innocence. 4. The trial Court, after going through the evidence, acquitted the accused vide judgment dated 15-4-2010. Hence, this appeal. 5. The short point for consideration in this case is, whether necessary provisions of Section 22(2) of the Act and Section 100(4) Cr. P.C. were followed in the present case before searching the premises of the respondent? 6. The undisputed facts are that one Balwant Singh, who was a public witness, was associated as a witness, but was not examined by the prosecution in the Court. As per the statement of complainant (PW. 1) and Dr. P.C. were followed in the present case before searching the premises of the respondent? 6. The undisputed facts are that one Balwant Singh, who was a public witness, was associated as a witness, but was not examined by the prosecution in the Court. As per the statement of complainant (PW. 1) and Dr. G. N. Aggarwal (PW. 2), the respondent was not found prescribing any medicine to any patient nor any prescription slip was seized from the spot. This Court in case Mukhtiar Singh v. State through District Drug Inspector, Narnaul, 2003 (3) RCR (Criminal) 502, had set aside the conviction of the accused primarily on the ground that, when a raid had been conducted by a Drug Inspector, but no independent witness from the locality had been joined, the necessary provisions of Section 100 (4) Cr. P.C. was not followed. In para No. 5 of the aforesaid judgment, it was observed as under : 5. I find merit in the contention raised by the learned counsel for the petitioner. Section 100(4) of the Code of Criminal Procedure, 1973, is to the following effect : Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. According to the aforesaid quoted provision of the Code of Criminal Procedure, joining of two independent witnesses from the locality is a pre-requisite before conducting raid in the premises. In case the persons from the locality are not available or willing to join the raid, then independent persons from a nearby locality are to be joined. But, in the present case, the Drugs Inspector had joined Dr. Janak Raj Singhal, who is the Medical Officer, General Hospital, Mohindergarh; and Dr. Siri Chand, who is Incharge of Government Ayurvedic Dispensary, Duloth Ahir, at the time of raid. These two witnesses, who belong to the same department, cannot be said to be independent witnesses. Moreover, they are not residents of the locality, where the premises of the petitioner were situated. Siri Chand, who is Incharge of Government Ayurvedic Dispensary, Duloth Ahir, at the time of raid. These two witnesses, who belong to the same department, cannot be said to be independent witnesses. Moreover, they are not residents of the locality, where the premises of the petitioner were situated. The essential ingredient of Section 100(4) of the Code of Criminal Procedure is the joining of two independent and respectable witnesses from the locality, which has not been done by the Drugs Inspector. The aforementioned two witnesses, who belong to the same department, cannot be said to be independent by any stretch of imagination. Thus, even the raid conducted by the Drugs Inspector of the premises of the petitioner on April 2, 1985, was not in accordance with the provisions of the Code of Criminal Procedure. 7. Since no witness was examined by the prosecution to establish that the respondent was prescribing any medicine to anyone, therefore, it cannot be said that the respondent was a practicing doctor. 8. No other point was argued by learned State counsel. 9. Dismissed. Petition dismissed.