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2020 DIGILAW 502 (ALL)

Prempal Varshney v. State

2020-02-14

PANKAJ NAQVI, SAMIT GOPAL

body2020
JUDGMENT : Pankaj Naqvi, J. This criminal appeal is preferred against the judgment and convicting/sentencing the appellant under Section 275 IPC/Section 27 of Drugs and Cosmetics Act, 1940 to life with fine of Rs.1 lac and a default sentence of 5 years R.I. (a) PW-1, a Drug Inspector on 12.5.1982 inspected the shop of the appellant, namely M/s National Medical Store, wherein he purchased 5 tables of DEXAMETHASONE (Batch No.38 D/M May 81) vide Cash Memo (Ex.Ka 1), for the purpose of sample/test survey. PW-1 sent the said sample to Central Drug Laboratory, Calcutta (hereinafter referred to C.D.L.), where it was received on 14.05.1982. The C.D.L. submitted the test report dated 04.06.82 (Ex.Ka 4) disclosing the sample as spurious and that it did not contain DEXAMETHASONE. (b) PW-1 on 26.6.1982, again inspected the shop of the appellant and purchased vide a cash memo (Exbt Ka-5) 47 tablets of DEXAMETHASONE (Batch No. 38D/M May 81). Out of 47 tablets, PW-1 prepared 4 samples, i.e, 20+9+9+9 and got them sealed in the presence of appellant, duly signed by both of them, appellant was intimated of the same on Form 17 of the same date. PW1 sent the sample containing 20 tablets to the C.D.L, vide a memo dated 28.06.82 to obtain a test report, which was received by the laboratory on 20.7.1982. (c) The Government Analyst, C.D.L, Calcutta submitted a report dated 19.8.1982 (Exbt. Ka-10) disclosing that the sample does not contain DEXAMETHASONE and as also the sample is misbranded as per Section 17(f) and adulterated as per Section 17B(eii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act). The report dated 19.8.1982 was sent by Registered AD/Post to the accused/appellant on 28.8.1982 (Ex.Ka-16). The accused/appellant vide his registered/AD Post reply dated 25.9.1982 (Exbt. Ka-18), inter alia controverted the report alleging that the said medicines were purchased from M/s Bharat Pharma and Chemicals, A-5 of Industrial Estate, Hathras under their bill no. 35 dated 22.4.1982. He also requested for a fresh analysis of a sample from a sealed bottle in his possession. 2. PW-1 on above allegations filed a statutory complaint under Section 27 (a), 27(6) read with section 18a(i), 18a(ii), 18a(iia) and 18a(vi) of the Act, on 21.9.1983 before the Special Court. 35 dated 22.4.1982. He also requested for a fresh analysis of a sample from a sealed bottle in his possession. 2. PW-1 on above allegations filed a statutory complaint under Section 27 (a), 27(6) read with section 18a(i), 18a(ii), 18a(iia) and 18a(vi) of the Act, on 21.9.1983 before the Special Court. The trial court taking cognizance of an offence under Section 275 of the IPC read with U.P. Act 47 of 1975, as also under Section 18(a)(i), (ii), (iii) and 18(c) of the Act proceeded against the appellant as well as the manufacturer. It appears that the manufacturer approached this Court in A-482 no. 10644 of 1991 and obtained an interim order on 11.10.1991, whereby proceedings of the trial court were stayed against him. The trial of the manufacturer stood segregated. 3. The prosecution examined PW-1, in order to establish its case. The appellant denied the allegations and contended that the alleged sample was purchased from M/s Bharat Pharma and Chemicals, Hathras, a Licensed firm. He examined himself as DW-1. 4. The trial court after considering the evidence was of the view that as the appellant failed to discharge the burden under Section 19(3)(b) of the Act, he is not entitled to the defence available therein, proceeded to convict and sentence him as above. 5. Heard Sri S.S. Sharma, learned counsel for the appellant and Sri A.N. Mulla, the learned A.G.A, assisted by Dr. S.B. Maurya, the learned A.G.A-I. 6. It is submitted by learned counsel for the appellant that as per the case of the prosecution appellant was a retailer, sample in question was sold to PW-1 in the same condition as it was received from the manufacturer against an invoice (CST no. HT717 and UPST no. HT2934) (Ext. Ka-7). He submits that as the appellant did not and could not ascertain that the drug contravened the provisions of Section 18, even after exercising reasonable diligence, he cannot be convicted under Section 27 of the Act. He finally submitted that the conviction under Section 275 IPC is also not sustainable as the appellant discontinued the sale of the drug the moment he came to know of the drug being spurious. 7. He finally submitted that the conviction under Section 275 IPC is also not sustainable as the appellant discontinued the sale of the drug the moment he came to know of the drug being spurious. 7. The learned A.G.A, controverted the submissions by submitting that the appellant cannot be absolved from his responsibility, merely on the premise that he held a valid license or that he purchased the said medicine from a licensed manufacturer as he had failed to exercise reasonable/diligence to ascertain that the drug was spurious/misbranded. He further submitted that it was a life saving drug, offence is sufficiently established both under the Drugs Act as also under IPC and no leniency can be shown. 8. The appellant, a retailer, is charged for an offence under Section 18 of the Act on the basis of a test report dated 19.8.1982, duly confronted to him. Section 18 of the Act, insofar relevant is quoted hereinbelow: “Prohibition of manufacture and sale of certain drugs and cosmetics. —From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf— (a) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute— (i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious; (ii) any cosmetic which is not of a standard quality, or is misbranded, adulterated or spurious; (iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of active ingredients contained in it together with the quantities, thereof; (iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims to prevent, cure or mitigate any such disease or ailment, or to have any such other effect as may be prescribed; (v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended; (vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder” 9. The plea of defence available to an accused, not being manufacturer or his agent for the distribution thereof, in a prosecution under Section 18 of the Act, is provided under Section 19 of the Act, which is quoted hereunder: “Section 19. Pleas. – (1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug or cosmetic, in respect of which, the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale. (2) For the purposes of section 18 a drug shall not be deemed to be misbranded or adulterated or spurious or to be below standard quality nor shall a cosmetic be deemed to be misbranded or to be below standard quality only by reason of the fact that – (a) There has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug or cosmetic as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug or cosmetic or to conceal its inferior quality or other defects ; or (b) In the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it; provided that this clause shall not apply in relation to any sale or distribution of the drug or cosmetic occurring after the vendor or distributor became aware of such intermixture. (3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves – (a) That he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof ; (b) That he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and (c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it.” 10. Sub-section (1) of Section 19 provides that the accused cannot, as a defence, plead ignorance to the nature, substance or quality of the drug involved in the commission of the offence, neither can he plead that he was unaware, or how was it manufactured/imported, nor can he plead that the purchaser suffered no prejudice/loss. Sub-section (3) of Section 19 is in the nature of an exception to Sub-section (1) of Section 19. It applies only when the accused is neither a manufacturer nor his agent for distribution. The said exception provides that such a person, shall not be held liable for the contravention of Section 18, but only when he proves that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof and even after exercising reasonable diligence, he did not know and could not, have ascertained that the said drug or cosmetic in any way contravened the provisions of Section 18 and that the said drug or cosmetic was properly stored and remained in the same state as he acquired them. 11. Thus, the only moot point in this appeal is as to whether the appellant who is neither a manufacturer nor his agent, succeeded to set up and establish his defence under Section 19(3) of the Act or not. 12. It is admitted case of the prosecution that DEXAMETHASONE was purchased from the appellant, a valid license holder, vide cash memo (Ext. Ka-5) dated 26.6.1982. 13. The term “reasonable diligence” provided under Section 19(3)(b) of the Act will have to be interpreted in the light of the context as also the person, who is expected to exercise reasonable diligence. We are dealing with a statute, where adulteration/misbranding have to be seriously dealt with but while doing so it be also ensured that the burden which is placed on a retailer/seller is not such onerous or cumbersome that it becomes impossible for retailer/seller to transact normal business. The law does not expect that the retailer/seller would microscopically examine each and every drug/cosmetic or to conduct any other test to authenticate the genuineness of the drug/cosmetic. Once a retailer/seller has established that he bought the drug/cosmetic from a licensed manufacturer or distributor thereof, and stored them properly then the retailer/seller has only to exercise reasonable diligence as expected from an ordinary person indulging in that particular trade. Once a retailer/seller has established that he bought the drug/cosmetic from a licensed manufacturer or distributor thereof, and stored them properly then the retailer/seller has only to exercise reasonable diligence as expected from an ordinary person indulging in that particular trade. For example, where the drug/cosmetic appears to be misbranded/sub-standard to even a naked eye then it may afford no protection to the retailer/seller that he purchased the drug/cosmetic from a licensed manufacturer and had stored it properly. 14. The trial court refused to give benefit of defence under Section 19(3)(b) on the following grounds: (I) The accused went on selling the drug in question after 5 tablets of DEXAMETHASONE were purchased from the appellant on 12.5.1982 with batch no. 38 D/M May 81 and the report of the CDL, Calcutta dated 4.6.1982 indicated the drug to be spurious. (II) No complaint to higher authorities against the manufacturer after the receipt of first report dated 4.6.1982. (III) Warranty was executed by the son of manufacture in the absence of any role in the proprietorship firm. 15. PW-1 nowhere alleged that the report of the first sample, purchased on 12.5.1982 was ever confronted to the appellant. The appellant under Section 313 CrPC vide Question no.9 specifically denied the receipt of any report dated 4.6.1982 (Ext. Ka-4). The burden was upon the prosecution to establish the service of the report dated 4.6.1982, which it failed to discharge. Thus the finding of the trial court that despite service of the test report dated 4.6.1982, the appellant continued to sell the drug in question, would demonstrate lack of reasonable care and due diligence disentitling him of the defence under Section 19(3)(b) being perverse stands vitiated. 16. The second ground also cannot be sustained, as even after disclosure by the appellant to PW-1 at the first available opportunity that he purchased the drug in question from a licensed manufacturer, i.e, M/s Bharat Pharma and Chemicals, yet no effort was made by PW-1 in seizing the drugs or even inspecting the premises of the manufacturer, rather after an unexplained delay of nearly a month, the concerned officials on 22.7.1982 inspected the premises of the manufacturer. The trial court’s view that the lapse on the part of the investigating authorities would not enure to the benefit of accused so as to claim available defence, cannot be sustained as once an accused discloses the name of the manufacturer to the Drug Inspector, then merely because the accused did not complain to higher authorities would not disentitle him of the defence available under Section 19(3) of the Act. 17. The third ground also fails for the reason that the manufacturer was running a proprietorship concern and the deed of warranty was not executed by an outsider but by the son of the manufacturer. Further even assuming that the deed of warranty was not signed by the competent person, yet the same would not deprive the appellant of the defence under Section 19(3)(b), as merely because of this reason, it cannot be said that the appellant knew or could have ascertained that the drug was in contravention of the provisions of Section 18 of the Act. Thus, failure to obtain a warranty from the manufacturer would not ipso facto mean that the accused failed to exercise reasonable diligence. 18. We on above evidence, are of the considered view that once the appellant established that he acquired the drug from a duly licensed manufacturer, whose identity was disclosed to PW-1, at the first available opportunity, he did not know and could not with reasonable diligence, have ascertained that the drug in question, in any way contravened the provisions of Section 18, coupled with the fact that it was not the case of the prosecution that the drug was not properly stored, thus he is entitled to the defence available under Section 19(3) of the Act, and the view taken by the trial court to the contrary cannot be sustained. Insofar, the conviction/sentence under Section 275 IPC is concerned, there is no evidence that the accused appellant had any knowledge that the drug in question was adulterated. It has come in evidence that after receipt of the test report dated 26.6.1982, which was the basis of the prosecution, the appellant stopped the sale of the drug in question. Thus, in view of above, the appeal is allowed. Conviction/sentence of the appellant is set aside. The appellant is on bail. His bail bond stands cancelled, sureties discharged. It has come in evidence that after receipt of the test report dated 26.6.1982, which was the basis of the prosecution, the appellant stopped the sale of the drug in question. Thus, in view of above, the appeal is allowed. Conviction/sentence of the appellant is set aside. The appellant is on bail. His bail bond stands cancelled, sureties discharged. Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance within 2 months under the intimation to this Court.