Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 136 (CHH)

Ghanshyam Lal Shav v. State of M. P.

2014-03-26

P.SAM KOSHY

body2014
ORDER P. Sam Koshy, J. 1. By way of instant Criminal Revision, the applicant has challenged the judgment dated 27.11.1999 passed in Criminal Appeal No. 82/1998, by Seventh Additional Sessions Judge, Bilaspur (hereinafter referred to as "the appellate Court"), arising out of judgment of conviction and order of sentence dated 20.4.1998 passed in Criminal Case No. 621/1990, by Additional Chief Judicial Magistrate, Bilaspur (hereinafter referred to as "the trial Court"). Brief facts leading to the instant case as per the prosecution are that the applicant, who is a resident of village Nariyara under Police Station-Pamgarh in District Bilaspur, was having a shop adjoining his house and from the said shop the applicant was selling medicines and injections. For the selling of these medicines and injections, the applicant did not have any sort of license or an order from the Government nor was the applicant able to show the details in respect of the purchase of these medicines nor was in his possession any receipts in respect of the purchase of these medicines. 1.1. Case of the prosecution is that on 26.8.1988, Satyawan Sao (PW-4) had made a complaint to the Deputy Controller, Food and Drugs Cosmetics, Bhopal, who, in turn, issued an order on 22.10.1988 to M.S. Tomar (PW-1.) and Chief Drug Inspector Premnarayan (PW-5) for necessary verification. M.S. Tomar (PW-1) and Premnarayan (PW-5) went for verification on 28.2.1989 to the applicant's village and since the applicant was not available in the village on the said date, the verification/inspection could not be done. Subsequently, on 18.3.1989, M.S. Tomar (PW-1) and Premnarayan (PW-5) again went to the village of the applicant and, on finding the applicant at the shop after giving necessary introduction, conducted inspection and in the said inspection, 169 medicines and injections of allopathy as well as Ayurvedik, as per Form No. 16, was seized. On seizing these 169 allopathy and Ayurvedik medicines, as per Form No. 16, M.S. Tomar (PW-1) asked for license from the applicant in respect of storing and selling of these medicines, upon which the applicant submitted that he does not have any license. Similarly, the inspection team also sought for the details of the purchase like the agent or the dealer from whom the medicines had been purchased or the receipts in respect of the purchase so made. To this also the applicant could not any give satisfactory explanation and reply. 1.2. Similarly, the inspection team also sought for the details of the purchase like the agent or the dealer from whom the medicines had been purchased or the receipts in respect of the purchase so made. To this also the applicant could not any give satisfactory explanation and reply. 1.2. Thus, on the report of M.S. Tomar (PW-1), a case was registered against the applicant for offences punishable under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act of 1940 (for short, 'the Act of 1940'). Subsequently, the matter was put to trial in Criminal Case No. 621/1990 before the trial Court. 1.3. The trial Court, after conclusion of the trial, vide its judgment of conviction and order of sentence dated 20.4.1998, found the applicant to be guilty of having committed the offences punishable under Sections 27(b)(ii) and 28 of the Act of 1940 and, after convicting the applicant for the said offences, sentenced him to undergo of R.I. for one year with fine of Rs. 5000/- and in default of payment of fine, to undergo additional R.I. for 3 months for offence under Section 27(b)(ii) and to undergo R.I. for 6 months with fine of Rs. 500/- and in default of payment of fine, to undergo additional R.I. for one month for the offence under Section 28 of the Act of 1940, with a direction to run both the sentences concurrently. 1.4. The said judgment of conviction and order of sentence dated 20.4.1998 was challenged by the applicant in an appeal, which was registered as Cr. A. No. 82/1998, before the appellate Court. 1.5. The appellate Court also, after considering the submissions and contentions put forth by the applicant and taking into consideration the evidences that have come on record, found the findings arrived at by the Court below to be proper, legal and justified and thereby affirming the said judgment of conviction and order of sentence, rejected the appeal preferred by the applicant, vide impugned judgment dated 27.11.1999. 2. It is this judgment dated 27.11.1999 passed by the appellate Court, which has been put to challenge by way of instant criminal revision. 3. 2. It is this judgment dated 27.11.1999 passed by the appellate Court, which has been put to challenge by way of instant criminal revision. 3. Learned counsel for the applicant submits before the Court that the trial Court should have taken into consideration the fact that in the rural back drop of the Indian society in villages and in remote areas, the medicines which are used for the general public for non serious and petty ailments like cough, cold and fever in the villages; there are shopkeepers who sell these medicines and, if not, for these shops, the poor villagers will have to travel quite a far distance for getting these medicines. The second contention put forth by the counsel for the applicant is that the daughter of the present applicant has done a course in pharmacy and has also enrolled herself with the State Pharmacy Council and for which, necessary certificates have been issued by the Pharmacy Council. As such, she is qualified and competent to sell medicines and also knows about the medicines to some extent. Lastly, counsel for the applicant submits that the date of incident (i.e. the date on which the inspection was conducted) was 18.03.1989 and, as such, it is almost 25 years now that the applicant was charged for the offences under the provisions of the Act of 1940 and that at the time of the incident itself, the applicant was around 55 years of age and, after these 25 years of litigation, the applicant has reached around 80 years of age. Therefore, taking a lenient view, the sentence part imposed upon the applicant may be reduced for the period already undergone as the applicant has already been in jail for a period of about 20 days. 4. Per contra, learned counsel for the State submits that from the evidence that have come on record, it is evidently clear that the applicant has not been able to give any justifiable explanation in respect of the provisions of Section 27(b)(ii) and Section 28 of the Act of 1940. 4. Per contra, learned counsel for the State submits that from the evidence that have come on record, it is evidently clear that the applicant has not been able to give any justifiable explanation in respect of the provisions of Section 27(b)(ii) and Section 28 of the Act of 1940. It is also contended by counsel for the State that taking into consideration the provisions of the Act of 1940, the sentence imposed upon the applicant by the trial Court can not be said to be harsh or disproportionate for the reason that the sentence imposed upon by the trial Court, which has been affirmed by the appellate Court, is the minimum prescribed under the provisions of law. As such, the Courts below cannot be faulted at nor can the judgments of the Courts below said to be erroneous, bad in law or contrary to the evidence and, in absence of an error of law, the judgment of conviction and the minimum sentence imposed upon the applicant by the Courts below deserves to be sustained and the revision petition should be rejected. 5. Upon hearing the rival contentions put forth by the counsel appearing for either side and on perusal of the record, it is evidently clear from the evidence of PW-1, M.S. Tomar, Drug Inspector, that admittedly the applicant was carrying on a business of selling medicines from his shop and that neither at the time of inspection nor at a later stage was the applicant able to produce documents to establish the fact that he was authorized and was having proper permission and license to carrying on the business of selling the medicines. Similarly, from the evidence of M.S. Tomar (PW-1), it is also reflected that the applicant was not even able to give details of the agent from whom the medicines were being purchased by the applicant nor was the applicant in possession of the relevant bills in respect of the purchase of the medicines which were seized. Similarly, from the evidence of M.S. Tomar (PW-1), it is also reflected that the applicant was not even able to give details of the agent from whom the medicines were being purchased by the applicant nor was the applicant in possession of the relevant bills in respect of the purchase of the medicines which were seized. It was also found during the inspection that many of the medicines which were stored by the applicant in his shop were to be kept in a fridge as some of these medicines had to be maintained at a particular level of temperature and in the shop of the applicant there was no fridge and these medicines which otherwise to be stored in a fridge was kept in the open rack which also would be harmful if given to the patients. 6. The testimony of the Drug Inspector PW-1, M.S. Tomar was corroborated by the panch witness PW-2, Nandkishor Vyas, who had also supported the case of the prosecution in its entirety without much omission and contradiction with what has been stated by PW-1, M.S. Tomar. The said panch witness states that the other panch witness Ganpat Yadav, who has been along with him, could not be produced as a witness on account of the fact that Ganpat Yadav had expired before the evidence had started. 7. Similarly, the case of the prosecution has also been supported by the evidence of PW-3 R.R. Khan, Food Inspector, who, in his deposition, has stated that he had also accompanied PW-1 M.S. Tomar during the inspection and that the Panchnama (Exbt. P-6) was prepared in his presence and he had put his signature on the said Panchnama (Exbt. P-6). 8. Furthermore, PW-5 Premnarayan, a Senior Drug Inspector, who had also accompanied PW-1 M.S. Tomar at the time of inspection, has supported the case of the prosecution in its entirety and that from his cross-examination also the applicant could not extract anything. From the story of the defence that has been made out that the shop was being run by the daughter of the applicant, also cannot be accepted for the reason that even in the name of the daughter the license was not there for selling the drugs and medicines from his shop. From the story of the defence that has been made out that the shop was being run by the daughter of the applicant, also cannot be accepted for the reason that even in the name of the daughter the license was not there for selling the drugs and medicines from his shop. The second contention of the applicant that his daughter is entitled for running medical shop, also is not sustainable for the reason that his daughter may have the qualification but for the purpose of carrying on the business of selling of medicines one must have the specific license issued in this regard by the competent authorized officer under the provisions of the Act of 1940. The appellant has not be able to give any convincing and satisfactory explanation or proof in respect of the eligibility of the daughter of the applicant for running the shop. Only because she has a certificate issued by the Madhya Pradesh Pharmacy Council, by itself would not make her eligible for selling drugs and medicines. Thus, the finding arrived at by the Courts below cannot be said to be either erroneous or contrary to the evidence nor can the same be said to be a perverse finding of facts. 9. At this juncture, learned counsel for the applicant submits that in the instant case the inspection was done in the year 1989 and, as such, more than 25 years have passed and, for all these 25 years, the applicant was on bail and that, in between, he was in jail for a period of about 20 days. Further, at the time of incident, the age of the applicant was about 55 years and, as such, by virtue of 25 years having passed, during which the applicant was litigating, by now he has reached the age of around 80 years. Hence, considering the age of the applicant, sentence may be reduced for the period already undergone. 10. However, if we see the provision under which the prosecution has initiated proceedings against the applicant, it is evidently clear that Section 27(b)(ii) of the Act of 1940 at the relevant point of time had prescribed a minimum sentence of not less than one year and which can be extended up to three years with fine which shall not the less than Rs. 5000/-. 11. 5000/-. 11. Counsel for the applicant further took the Court to the proviso clause of Section 27(b)(ii) of the Act of 1940 wherein it has been envisaged that for any adequate and special reasons to be recorded in the judgment, the Court can impose sentence of imprisonment for a term less than one year and fine of less than Rs. 5000/-. 12. Taking into consideration the overall facts and circumstances of the case, it Cannot be said that only on account of the fact that the date of incident is of the year 1989 and the litigation has been going on for last 25 years, the same can be termed as adequate and special reason for reducing the sentence than the minimum prescribed. 13. Counsel for the applicant refers to five judgments of Hon'ble Supreme Court in the matters of Beena Philipose and Another v. State of Kerala (2006)7 SCC 414, Ashok Kumar Chaudhary and Others v. State of Bihar (2008) 12 SCC 173 , Basavaraj v. Dhanlaxmi Finance Company (R), TERDAL (2010)1 SCC 602 , Karipi Rasheed Ahmed v. State of Andhra Pradesh (2009) 17 SCC 515 , Bishan Singh and Another v. State (2007) 13 SCC 65 . However, none of the judgments referred to by the counsel for the applicant deals with a case where the Hon'ble Supreme Court has reduced the sentence below the minimum prescribed nor has the Hon'ble Supreme Court in any of the said judgments dealt with an issue stating that the delay caused in the course of litigation can be considered as an adequate and special reason. 14. At the same time, if we otherwise look into the seriousness of the act committed by the applicant, it could have also been a case where by way of selling medicines by unqualified and unauthorized persons without proper license from competent authority, some untoward incident could have happened and for which repercussions would have been far reaching. It is precisely for this reason to prevent such instances of medicines being sold by unauthorized and unqualified persons without any sanction, license or authority that the Act of 1940 was enacted. If the provisions of the Act of 1940 is not enforced effectively, the very purpose of enacting the said provision of law would get redundant. It is precisely for this reason to prevent such instances of medicines being sold by unauthorized and unqualified persons without any sanction, license or authority that the Act of 1940 was enacted. If the provisions of the Act of 1940 is not enforced effectively, the very purpose of enacting the said provision of law would get redundant. Such selling of medicines and drugs from unauthorized counters without a valid license or permission pose serious threat to the health of the society. 15. In the matter of Chinnadurai v. State of T.N. 1995 Supp(3) WSCC 686, Hon'ble Supreme Court has rejected the plea for reduction of sentence in view of considerable delay and other circumstances observing that sentence has to be awarded taking into consideration the gravity of the injuries. Further, apart from the delay caused, there is no other substantial ground which can be accepted to be a special reason or special circumstances under which the said proviso clause of said section can be made applicable. 16. Hon'ble Supreme Court in Sadhupati Nageswara Rao v. State of Andhra Pradesh 2012(8) SCC 547 has observed that the courts cannot take lenient view in awarding sentence on the ground of sympathy or delay as the same cannot be a ground for reduction of the sentence. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. Similar view has also been reiterated by the Hon'ble Supreme Court in the case of Ajahar Ali v. State of West Bengal 2013(10) SCC 31 . 17. For the foregoing reasons, the judgments passed by the two Courts below cannot be said to the erroneous, perverse or contrary to evidence or law. 18. In the result, the revision is dismissed. The impugned judgment dated 27.11.1999 passed by Seventh Additional Sessions Judge, Bilaspur, in Criminal Appeal No. 82/1998, is hereby confirmed. The applicant is reported to be on bail. Therefore, his bail bond stands cancelled and he is directed to immediately surrender before the concerned trial Court to serve out the remaining sentence, failing which the trial Court is directed to take him into custody to serve out the remaining part of the sentence. Petition dismissed.