Criminal Appeal No.4 of 2013

25th March, 2014.

Petitioner Counsel: Mr. D. LAWANDE
Respondent Counsel: Mr. J.J. MULGAONKAR

Cases Cited:
Mohd. Shabbir Vs. State of Maharashtra, 1979 Cri. L. J. 466 [Para 5,7,11,12,14,16]
Sk. Amir Vs. The State of Maharashtra, (1974) 4 SCC 209 [Para 6,13]
Delhi Administration Vs. Puran Lal Ahuja, 28(1985) DLT 392 [Para 6,13]
The Drugs Inspector Nandyal Vs. Sri K. Pullaiah S/o. K. Ellaiah, 2012(2)ALD (Cri) 26 [Para 6,13]
Swantraj and others Vs. State of Maharashtra, (1975)3 SCC 322 [Para 6,14]
Chandrappa and others Vs. State of Karnataka, 2007 ALL SCR 961=(2007) 4 SCC 415 [Para 7,15]

JUDGMENT

JUDGMENT :- Heard Mr. Lawande, learned Additional Public Prosecutor (A.P.P., for short), appearing on behalf of the appellant and Mr. Mulgaonkar, learned Counsel appearing on behalf of the respondents.

2. This appeal is preferred by the State against the judgment and order dated 28/10/2010 passed by the Judicial Magistrate, First Class, Mapusa ('Trial Magistrate') in Criminal Case No. 91/S/2007/B thereby acquitting the respondents (accused persons) of the offence punishable under Section 27(b)(ii) read with Section 18(c) of the Drugs and Cosmetics Act, 1940 ('the Act' for short).

3. The Drugs Inspector, Panaji, Mrs. Medha Dessai had filed a private complaint against both the accused persons for contravention of Section 18(c) punishable under Section 27(b)(ii) of the Act. The case of the complainant was as follows:-

The accused no. 1 was running the Shop No. 4 situated in Calangute Residency at Calangute and accused no. 2 was the lessee of the said shop taken from Goa Tourism and Development Corporation. On receipt of information that illegal sale of Ketamine Hydrochloride Injections has been going on at the Calangute Beach area, the complainant along with Drugs Inspector Mrs. Jyoti Sardessai and Assistant Drugs Controller Mr. Salim Veljee and panch witnesses namely, Anil Narayan Raut and Ramnath Harish Anvekar, conducted a raid of the said shop no. 4 of the accused on 06/01/2005. The mezzanine floor of the said shop was searched and Ketamine Hydrochloride Injections IP under brand name "Suket Injection" bearing Batch No. S-4177, M.D.-Oct., 04, E/D. Sept., 06, MRP Rs. 110/- manufactured by M/s. Sunand Pharmaceuticals Private Ltd, Vasai in quantity of 4056 x 10 ml vials, were found stocked in five boxes. The said stock of injections was brought down the mezzanine loft and sample of the said drug was drawn, for the purpose of analysis. It was alleged that the accused persons were engaged in the business of sale of said drugs and had stocked the said drugs at their premises for sale without valid licence.

4. Charge was framed for contravention of section 18(c) punishable under section 27(b)(ii) of the Act and explained to both the accused persons and they pleaded not guilty and claimed to be tried. The prosecution examined the complainant Mrs. Medha Dessai as PW1; Shri Ramnath Anvekar, one of the panch witnesses as PW2; Mrs. Jyoti Sardessai, Drugs Inspector as PW3; Mr. Ravindra Shah, the Assistant Drugs Controller, Karwar, as PW4; Mr. Salim Veljee, the then Assistant Drugs Controller for FDA as PW5. The statement of the accused persons under Section 313 of Cr.P.C. came to be recorded. The case of the accused no. 2 was of denial simpliciter, whereas the accused no.1 stated in his statement that the injections attached in the case were stocked in transit and they were neither exhibited for sale nor were sold in the premises. The accused no.1 alleged that he was holding wholesale licence under the Drugs Act at Karwar and he intended to take those drugs to Karwar.

5. Upon consideration of the entire evidence on record, the learned Trial Magistrate found that the accused no.1 had licence for wholesale distribution of drugs issued by the Assistant Drugs Controller, Uttar Kannada at Karwar and admittedly, the person holding wholesale distribution licence, could distribute drugs anywhere in India and distribution licence of accused no.1 was valid from 18/08/2004 till 17/08/2009. The Trial Magistrate further held that mere possession of drugs was not punishable under any of the provisions of the Act. The learned Magistrate relied upon the case of "Mohd. Shabbir Vs. State of Maharashtra", [1979 Cri. L. J. 466]. Therefore accused no. 1 was held not guilty. Insofar as the accused no. 2 was concerned, the Trial Magistrate found that he was original lease holder of Shop No. 4 having taken lease from Goa Tourism and Development Corporation. It was found that there was no evidence to show that the accused no. 2 had shared common intention to stock the drugs in the shop. There was no evidence to show that the accused no. 2 had any knowledge of the said stock. The Trial Magistrate, therefore, held that the accused no. 2 could not have been roped in the case. In the result, both the accused persons were acquitted. The State is aggrieved by the judgment and order of acquittal.

6. Mr. Lawande, learned A.P.P. fairly conceded that insofar as the accused no. 2 is concerned, the prosecution does not have any case. He further submitted that insofar as the accused no.1 is concerned, the possession of the drugs as mentioned in the complaint has been admitted by the accused no.1. He contended that licence was required for each place wherever the drugs were stored. He submitted that though the drugs were allegedly stored by the accused no.1 in Calangute, however, ultimately, the said drugs were for sale. He submitted that the said drugs were of a huge quantity and, therefore, it has to be held that they were possessed for the purpose of sale. He read out the provision of Rule 62 of the Drugs and Cosmetics Rules, 1945 (the Rules, for short) and also Section 18(c) of the Act. He pointed out that the evidence on record clearly shows that Shop No. 4 run by the accused was not a medical store, but a shop for sale of garments. Learned A.P.P., therefore, urged that the prosecution had proved the case against the accused no. 1 beyond reasonable doubt and thus, the impugned judgment and Order of acquittal was perverse and illegal and bound to be set aside. Learned A.P.P. relied upon the following judgments :

(i) Sk. Amir Vs. The State of Maharashtra, [(1974) 4 SCC 209]

(ii) Delhi Administration Vs. Puran Lal Ahuja, [28(1985) DLT 392]

(iii) The Drugs Inspector Nandyal Vs. Sri K. Pullaiah S/o. K. Ellaiah, [2012(2)ALD (Cri) 26]

(iv) Swantraj and others Vs. State of Maharashtra, [(1975)3 SCC 322]

7. On the contrary, Mr. Mulgaonkar, learned Counsel appearing on behalf of the accused persons, submitted that the accused were not charged for contravention of Rule 62 of the Rules and that the learned A.P.P. is trying to enlarge the scope of the charge which is not permissible. He submitted that the evidence on record clearly shows that the said injections were stocked in that shop in transit period as they were to be transported to Karwar. He submitted that absolutely no evidence has been produced by the prosecution to prove that there was any sale of said drugs in the said shop. The learned Counsel further submitted that since the accused no. 1 had produced the distribution licence, the accused no.1 had right to distribute the said drugs anywhere in India. According to him, none of the judgments relied upon by the learned A.P.P. are applicable to the present case and that in the facts and circumstances of the present case, the judgment of the Hon'ble Supreme Court in the case of "Mohd. Shabbir" (supra), relied upon by the Trial magistrate, is fully applicable, wherein it is held that mere possession or mere stocking of the drugs is not punishable under any of the provisions of the Act. Learned Counsel further showed as to how each of the judgments cited by the learned A.P.P. was not applicable in the facts and circumstances of the present case. He further submitted that since the present appeal is against acquittal, even if another view is possible, this Court should not interfere with the view taken by the Trial Magistrate, since the same is a possible view. In this regard, he relied upon the case of "Chandrappa and others Vs State of Karnataka", [(2007) 4 SCC 415] : [2007 ALL SCR 961]. He, therefore, urged that there is no substance in the present appeal and, therefore, the same be dismissed.

8. I have gone through the material produced on record and I have also considered the submissions made by the learned Counsel for both the parties and judgments cited by them.

9. Insofar as the accused no. 2 is concerned, a perusal of the entire evidence on record would show that there is absolutely no evidence at all of any nature as against him. The accused no. 2 is the lessee of Goa Tourism and Development Corporation in respect of the said Shop No. 4 and he had sublet the said Shop No. 4 to accused no.1. In case the accused no. 2 could not have sublet the said Shop No.4 without permission of Goa Tourism and Development Corporation, then, he may be liable for action of eviction, etc, to be taken by the said Corporation but he cannot be roped in the case under the Act. There is no evidence at all on record to show that the accused nos. 1 and 2, in furtherance of common intention, had stocked the said drugs, in the said shop. Be that as it may, the learned A.P.P. has fairly conceded that the prosecution does not have any case as against accused no. 2. Therefore, the present appeal as against the accused no. 2 is liable to be rejected at the outset.

10. Section 18(c) of the Act prohibits any person from manufacturing for sale or for distribution, or selling, or stocking or exhibiting or offering for sale, or distributing any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter. Section 27(b)(ii) of the Act provides for punishment for contravention of the provisions of Chapter IV of the Act or the Rules, which include Section 18(c) of the Act. Rule 62 of the Rules provides that:

62. Sale at more than one place.- if drugs are sold or stocked for sale at more than one place, separate application shall be made, and a separate licence shall be issued, in respect of each place:

Provided that this shall not apply to itinerant vendors who have no particular area within the jurisdiction of the licensing authority.

11. Insofar as the accused no.1 is concerned, admittedly, he runs the said Shop No. 4 and sells garments and other articles therein. The said shop is not a medical store. Indisputably, 4056 x 10 ml vials of Ketamine Hydrochloride Injections were found stocked on the mezzanine loft of the shop of garments run by accused no. 1. Thus, the said injections were neither exhibited nor offered for sale to anybody, in that shop. Nothing was found in the shop to establish that the said injections were actually sold in the said shop. In the case of "Mohd. Shabbir" (supra), the appellant was caught at the Bhusawal railway station with 17 plastic containers, containing 17,000/- white coloured tablets. After receiving report from public analyst, the Drugs Inspector had filed complaint against the appellant. Charges were framed against him for offences under Sections 27(a) (i) and 27(a)(ii) of the Act and under Sections 28 r/w Section 18-A of the Act. It was urged that there was no evidence to show that the appellant had any shop or that he was a distributing agent and that only the tablets were recovered from his possession. It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of Section 27 of the Act. The Hon'ble Supreme Court found force in the above arguments. The Apex Court held that the words used in Section 27 namely "manufacture for sale, sells," have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale." Thus, it was found that the Section postulates three separate categories of cases and no other: -(1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, Section 27 of the Act would not be attracted. The Apex Court held that before a person can be held liable for prosecution or conviction under section 27(a)(i) (ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The Apex court held that possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act.

12. In the present case though the drugs were found on the mezzanine floor of the shop of the accused no. 1, admittedly he had licence for distribution of the said drugs and they were to be distributed at Karwar and were stocked in the shop during transit. It is an admitted fact that under the said licence, the accused no. 1 could distribute the said drugs anywhere in India. There was absolutely no evidence on record to establish that the said drugs were exhibited for sale or were offered for sale or were actually sold in that shop. Thus, the facts and circumstances of the present case are similar to those in the case of "Mohd. Shabbir" (supra). In my considered view, the learned Trial Magistrate has rightly relied upon the above case. Mere possession of drugs cannot be punishable under the provisions of the Act.

13. In none of the cases relied upon by the learned A.P.P., it has been held that mere possession of drugs not meant for sale, is punishable. In the case of "Sk. Amir" (supra), the appellant was apprehended by a Railway Constable at the gate of Malkapur railway station, immediately after he had obtained delivery of a parcel which was found to contain 95,000 capsules of Seco Barbital Sodium which is a sedative agent, commonly used for intoxication, and popularly called "Lal Pari". The said drug was a "misbranded drug" and the appellant had no valid licence to stock it for sale. There was no dispute that the appellant had 'stocked' the drug. The controversy was limited to the question whether the appellant had stocked the drug 'for sale'. Thus, one thing is clear that the drug must be stocked for sale and mere possession not meant for sale cannot be an offence. The Hon'ble Apex Court observed that if anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale, the act must fall within the mischief of the law under consideration. It was held that a large quantity of 95,000 capsules found in the possession of the appellant leaves no doubt that he had stocked or kept the drug for sale and that it could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three Courts. The above case is not applicable to the present case before me since in the present case, admittedly, the accused had distribution licence and his defence from the beginning was that the said drugs were stocked temporarily in transit. In the case of "Puran Lal Ahuja" (supra), a very large stock of drugs was recovered from the godown of accused. That included 9800 capsules of Acistrep, 18300 capsules of Tetracycline, 9000 capsules of chloramphenicol of 250 mg. each, 14300 capsules of Chloramphenicol of 0.250 grams each of Phamakon Laboratories, 12000 tablets embossed with the words 'SDZ' stated to be Sulphadiazine, 75 ampoules of injection Pethidine, 92 ampoules of 3 mil. Injection Neurobion, one trunk and two wooden cases containing various drugs, hundreds of labels and also various vials showing the injections of various types. It was held that it is apparent that the recovery was of such a large quantity that it was impossible to contend that these goods were merely stocked just for fun of it. No other conclusion could be drawn excepting that these drugs were meant for sale. It was not the case that the accused had licence for distribution of said drugs and the said drugs were stored in transit. The facts and circumstances of the case supra are totally different from the case before this Court. In the case of "Sri K. Pullaiah" (supra), a large quantity of drugs was recovered from the house of the accused. 118 items of drugs were stored by him for which he had no valid licence. The accused took defence that he had purchased the medicines from M/s Katyani Medical and Fancy Stores. A notice was given to said Medical Stores, but there was no reply. Thus, the accused had not given any explanation as to the necessity of keeping so many medicines of different companies meant for different diseases, in his house. It was not the case of the accused that he had kept them for his personal use. He could not produce any evidence of having purchased those medicines from the said Medical Stores. In these circumstances, it was held that the accused was dealing illegally in the sale of the medicines without any licence. The facts of the case supra are also different from the facts of the present case before this Court. In the present case the vials were found in packed boxes. The accused had distribution licence and his case was that the said boxes were to be transported to karwar and were kept there in transit. The case of "Sri K. Pullaiah" (supra) is also not applicable to the present case.

14. In the case of "Swantraj and Others" (supra), however, the Hon'ble Supreme Court has held that temporary deposit or retention of drugs in an unlicensed place not for sale there but for eventual sale amounts to stocking for sale or distribution in contravention of Section 18(c) of the Act and Rule 62 of the Rules. In the case supra, the petitioners had a wholesale dealer's licence to stock drugs at Bombay and had a further licence to distribute the drugs through the motor van throughout the territory of the State of Maharashtra. But they had no licence to stock the drugs in the premises at Yeotmal. Unfortunately, the drugs were kept in the house of one Jaswani at Yeotmal. Admittedly, they were kept not for sale in those premises but they were meant for sale eventually to rural retailers elsewhere. What is relevant is that in the case of "Swantraj and others" (supra), the Apex Court has observed that on the face of it, the law is a little defective. The Judgment of the Apex Court in the case of "Swantraj and others" (supra), though prior in time as compared to the judgment in the case of "Mohd. Shabbir" (supra), was not brought to the notice of the Trial Magistrate by the learned A.P.P., in spite of the fact that the Judgment in the case of "Mohd. Shabbir" (supra) was cited by the learned Advocate for the accused, before the Trial Magistrate. The judgment in the case of "Swantraj and others" (supra) was passed on 05/02/1974 but that in the case of "Mohd. Shabbir" (supra) was passed on 17/01/1979. Both are by two Judges of the Hon'ble Supreme Court. The Judgment in the case of "Mohd. Shabbir" (supra) being more recent, the same commends itself most to me. In the present case, there was no charge framed by the Trial Magistrate for contravention of Rule 62 of the Rules. The impugned Judgment and order of acquittal based on the Judgment of the Hon'ble Apex Court in the case of "Mohd. Shabbir" (supra) does not appear to my mind to be perverse or illegal.

15. In the case of "Chandrappa and others", [2007 ALL SCR 961] (supra), it has been held that where two views are possible on evidence on record, one taken by trial court in favour of accused should not be disturbed by appellate court.

16. In view of the above, the view taken by the learned Trial Magistrate, based on the evidence on record and by relying upon the Judgment of the Hon'ble Supreme Court in the case of "Mohd. Shabbir" (supra), is a possible view and hence no interference with the impugned judgment of acquittal is warranted.

17. In the result, the appeal is dismissed.

Appeal dismissed.