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2015 DIGILAW 1147 (GUJ)

State of Gujarat v. Natvarbhai Ranchhodbhai Soni

2015-11-03

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. 1. The present Appeal is directed against the impugned judgment and order rendered in Criminal Case No. 3549 of 1990 by the learned Senior Civil Judge and Judicial Magistrate First Class, Palanpur dated 10.12.2004 recording acquittal of the Respondent Accused for the offence under Section 18(a)(i), 18(a)(vi), 18(c) and Sections 27 and 28 of the Drugs and Cosmetics Act, 1940 on the grounds stated in the memo of appeal. The facts of the case briefly stated are as follows. 2. The Complainant - Drug Inspector raided the residential premises of the Respondent Accused at Palanpur on the basis of the information about the sale of drugs/medicines without any permission or authority and seized such articles. It is the case of the prosecution that it was found to be spurious and substandard which was sold and stocked without any permission for which the complaint was registered which culminated into the aforesaid Criminal Case No. 3549 of 1990. 3. The trial court on appreciation of evidence recorded the acquittal of the accused which has led to the present appeal. 4. Heard learned APP Shri H.L. Jani for the Appellant State of Gujarat. Learned APP Shri Jani submitted that the trial court has committed an error in appreciating the documentary as well as oral evidence. He emphasized that the court below ought to have believed the evidence of the complainant which is fully corroborated by the other witnesses. Learned APP Shri Jani submitted that the reasons recorded for non-compliance of mandatory provision is misconceived. He submitted that the learned trial judge has erred in holding that no notice was given after the report of the analyst was received affecting the right of the accused. Learned APP Shri Jani also referred to the testimony of the Complainant at Exh. 19 and also other papers. He also referred to the Exh. 30 and submitted that the possession of such spurious medicine is established. He submitted that as stated admittedly the accused was not having any permission or license to keep or stock such medicine or the drugs. Therefore it would have been necessary for him to explain the possession of such drug or medicine. Learned APP Shri Jani strenuously stated that it presupposes that it was for the purpose of sale without any authority or permission and it was sold to doctors. Therefore it would have been necessary for him to explain the possession of such drug or medicine. Learned APP Shri Jani strenuously stated that it presupposes that it was for the purpose of sale without any authority or permission and it was sold to doctors. He submitted that the seizure memo has been served upon the Respondent Accused at Exh. 31 and therefore the findings and the reasons recorded by the court below are erroneous. Learned APP Shri Jani submitted that the statement of the Respondent Accused which has been recorded by the complainant are also produced. Similarly the samples which were taken for which the notices are produced at Exh. 32 to 36 and it has been found on the analysis that it was spurious drug. He submitted that the court below has failed to consider this relevant material and evidence. 5. Learned Advocate Shri S.S. Trivedi for the Respondent Accused however, referred to the papers and submitted that the judgment recording acquittal on appreciation of material and evidence is just and proper. He submitted that there is discrepancy in the evidence where the witnesses say about the raid in the evening whereas the panchnama is already been over in the afternoon. Similarly, further the drugs which have been recovered, no special seal has been applied. There were some discrepancy about sampling also and therefore the reasons recorded for acquittal are not erroneous. Learned Advocate Shri Trivedi further submitted that in any case the mandatory provision has not been complied with as discussed in the judgment and order recording acquittal. He submitted that as referred to in the various judgments it has to be established that such drugs were for the purpose of sale or manufacture and mere possession by itself would not be an offence. In support of this contention he has referred to and relied upon the judgment reported in 2015 FAJ 299 (Chhatt.) in case of Anil Kumar Jain v. State of Chhattisgarh. In support of this contention he has referred to and relied upon the judgment reported in 2015 FAJ 299 (Chhatt.) in case of Anil Kumar Jain v. State of Chhattisgarh. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1979) 1 SCC 568 in case of Mohammad Shabir v. State of Maharashtra and submitted that as observed, before a person can be liable for prosecution or conviction u/s. 27(a) (i) (ii) read with Section 18 (c) of the Act, it must be proved that he was manufacturing the drugs for sale or he was selling the same for which has made a stock. Learned Advocate Shri Trivedi emphasized that the possession simplicitor of the article does not appear to be punishable under any of the provisions of the Act. He pointedly referred to the provisions of the Act. Similarly, learned Advocate Shri Trivedi has referred to and relied upon the judgment of the High Court of Bombay at Goa in Criminal Appeal No. 52 of 2002 in case of State of Goa v. Tejpal P. Pandia & Anr. in support of this submission and emphasized that if the seal are not properly applied it raises doubt and it is a very vital aspect. Admittedly in the present case the special seals are not applied. Learned Advocate Shri Trivedi has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2001) 4 SCC 382 in case of Amery Pharmaceuticals and anr. v. State of Rajasthan. 6. Learned Advocate Shri Trivedi referred to Sections 90 to 94 of the Code of Criminal Procedure and submitted that it has to be read with Section 22 of the Drugs and Cosmetics Act. He has also referred and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1998 SC 1606 in case of State of Orissa v. Janmejoy Dinda. Learned Advocate Shri Trivedi submitted that the scope of Section 378 of Cr.P.C. and the approach in acquittal appeals may also be considered. He submitted that the accused is paralytic and is aged about 75 years and therefore also considering the circumstances the impugned judgment and order recording acquittal may not be disturbed. 7. Learned Advocate Shri Trivedi submitted that the scope of Section 378 of Cr.P.C. and the approach in acquittal appeals may also be considered. He submitted that the accused is paralytic and is aged about 75 years and therefore also considering the circumstances the impugned judgment and order recording acquittal may not be disturbed. 7. Learned Advocate Shri Trivedi referred and relied upon the judgment of the Hon'ble Apex Court reported in 2011 CJ (Raj) 832 in case of State of Rajasthan v. Durga Bunkar Vastra Utpakad Sahakari Samiti Ltd., Jaipur & Ors. and submitted that as observed in this judgment referring to the Drugs and Cosmetics Act itself that if the two views are possible the view which is favourable to the accused should be adopted. He submitted that as the view is already adopted recording the acquittal the same may not be disturbed unless there are compelling circumstances. 8. In view of this rival submissions, it is required to be considered whether the present appeal deserve consideration. 9. As could be seen from the reasons recorded for the acquittal it cannot be said to be erroneous. Apart from the aspect of compliance with the mandatory provisions, there are certain lapses or the issues which are not in dispute as noted by the court below. The special seals have not been applied. Similarly, the samples which have been taken are not properly taken for being sent for the analysis. The material has been seized pursuant to the raid from the residential premises of the accused, it is not in dispute. Since it was a residence without any board or anything it cannot be said that it was for manufacture or sale. Further, the quantity which has been seized would naturally not for personal consumption and if it was for sale the necessary evidence could have been brought on record as reflected in the statement of the accused. Therefore without any further elaboration the court is required to consider the broad guidelines as laid down by the Hon'ble Apex Court reported in (2007) 4 SCC 415 in case of Chandrappa & Ors. v. State of Karnataka which has also been reiterated in a judgment reported in AIR 2013 SC 321 in case of Mookkiah & Anr. v. State Rep. by the Inspector of Police, Tamil Nadu. 10. v. State of Karnataka which has also been reiterated in a judgment reported in AIR 2013 SC 321 in case of Mookkiah & Anr. v. State Rep. by the Inspector of Police, Tamil Nadu. 10. Therefore if the view taken by the court below is a plausible view, it does not call for any interference merely because the appellate court may have a different view. Further, if the view taken is reasonable view it may not be disturbed without any reasonable ground. Therefore considering the totality of the facts and circumstances, the present appeal deserves to be dismissed and accordingly stands dismissed.