1. Questioning the legality, validity and correctness of the impugned judgment dated 15-9-2003 affirming the conviction and sentence awarded to the applicant for offence punishable under Sections 27 (b) (ii) and 28 of the Drugs and Cosmetics Act, 1940 (henceforth âthe Act, 1940), sole applicant Anil Kumar Jain has laid the instant revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth âCrPC).
2. The prosecution case, as unfolded during the course of trial by the State, is briefly stated as under:
2.1 Complainant Parmanand Washani (PW-1) made a written complaint (Ex.P-7) to Sub-Divisional Officer, Dhamtari on 3-9-1998, who, in turn, forwarded the same to the Deputy Director, Food and Drugs Administration vide memo dated 14-9-1998 (Ex.P-6) stating that some ointment named and styled as Dinesh Kendua Malham is being sold in the rural area without manufacturing licence number, batch number, manufacturing date, expiry date etc. During inquiry of the said complaint, on 7-10-1998, Manmohan Molasariya (PW-2), Drug Inspector along with Hargovind Koshthi (PW- 3), Incharge Senior Drug Inspector and S. K. Mukherjee (PW-4), Sample Assistant conducted a search in the shop named and styled as M/s. Jai Hind Stores. In the search, present applicant Anil Kumar Jain was found present in the shop and following scheduled drugs were seized in his presence vide Ex.P-1, namely:
| Sl. No. | Name of Drug |
| 1. | Dettol |
| 2. | Boric Acid I.P. |
| 3. | Boric Acid I.P. |
| 4. | Eucalyptus Oil (I.P.) |
| 5. | Eucalyptus Oil (I.P.) |
| 6. | Eucalyptus Oil (I.P.) |
| 7. | Eucalyptus Oil (I.P.) |
| 8. | Eucalyptus Oil I.P. |
| 9. | Eucalyptus Oil I.P. |
| 10. | Eucalyptus Oil I.P. |
| 11. | Eucalyptus Oil I.P. |
| 12. | Eucalyptus Oil I.P. |
| 13. | Eucalyptus Oil I.P. |
| 14. | Eucalyptus Oil I.P. |
| 15. | Eucalyptus Oil I.P. |
| 16. | Boric Acid I.P. |
| 17. | Chlorom Phenicol Applicop. |
2.3 Sanction (Ex.P-20) for prosecution was granted by the Controlling Authority, Food and Drugs Administration on 17-3-1999. A complaint-case (Parivad-Patra) was filed by Manmohan Molasariya (PW-2), Drug Inspector in the Court of Chief Judicial Magistrate, Dhamtari on 9-4-1999 against (i) present applicant Anil Kumar Jain, Incharge of M/s. Jai Hind Stores, (ii) Bhanwarlal Jain, proprietor of M/s. Jai Hind Stores, and (iii) M/s. Jai Hind Stores for commission of offence punishable under Section 27 (b) (ii) of the Act, 1940 for violation of Section 18(c) of the Act, 1940 and for commission of offence punishable under Section 28 of the Act, 1940 for violation of Section 18 (a) (vi) of the Act, 1940.
2.4 Charges were framed against the three accused, i.e., present applicant Anil Kumar Jain, Bhanwarlal Jain and M/s. Jai Hind Stores for commission of offence punishable under Section 27(b) (ii) of the Act, 1940 for violation of Section 18(c) of the Act, 1940 and for commission of offence punishable under Section 28 of the Act, 1940 for violation of Section 18(a)(vi) of the Act, 1940. They pleaded no guilty and entered into defence that the drugs were neither for sale nor exhibited for sale as they belonged to others and kept in the shop for transit.
2.5 In order to establish the aforesaid charges, the prosecution examined five witnesses and brought on record and exhibited twenty documents. Whereas, the defence examined three witnesses and brought on record and exhibited three documents.
2.6 The trial Magistrate, by judgment dated 8-4-2002, convicted present applicant Anil Kumar Jain, Incharge of M/s. Jai Hind Stores for the offence under Sections 27 (b) (ii) and 28 of the Act, 1940, however, acquitted rest two accused Bhanwarlal Jain, proprietor of M/s. Jai Hind Stores and M/s. Jai Hind Stores of the charges framed against them finding that commission of the offence has not been proved against them beyond reasonable doubt.
2.7 On appeal by sole applicant Anil Kumar Jain, the appellate Court, by judgment dated 15-9-2003, accepted the finding of the trial Court and, affirming the conviction and sentence, dismissed the appeal.
2.8 Against the judgment of the appellate Court, the instant revision has been filed by Anil Kumar Jain, Incharge of M/s. Jai Hind Stores questioning the conviction recorded and sentence awarded against him for the offence under Sections 27 (b) (ii) and 28 of the Act, 1940.
3. Shri V.C.Ottalwar, learned counsel appearing for the applicant would submit that both the Courts below have committed a manifest legal error in holding the applicant guilty for the offence under Section 27 (b) (ii) of the Act, 1940 as the prosecution has completely and miserably failed to bring home the ingredients of Section 18 (c) of the Act, 1940 and, therefore, the impugned conviction followed by the sentence deserves to be set aside.
4. Shri Prasun Bhaduri, learned Government Advocate appearing for the State/non-applicant opposing the above submission, would submit that the seizure simpliciter of the scheduled drugs from possession of the applicant would bring home the offence against him under Section 27 (b) (ii) of the Act, 1940 within the meaning of Section 18(c) of the Act, 1940 and, therefore. once a scheduled drug is seized from possession of the applicant in his commercial establishment, the conviction of the applicant for the offence under Section 27 (b) (ii) of the Act, 1940 for violation of Section 18(c) of the Act, 1940 is duly established and, therefore, both the Courts below have rightly convicted the applicant for the aforesaid offence and hence, the revision deserves to be dismissed.
5. I have heard and considered the rival submissions made by learned counsel appearing for the parties and have perused the record with utmost circumspection.
6. In order to have comprehension of the challenge made to the impugned judgment of conviction, it would be profitable to notice clause (c) of Section 18 of the Act, 1940, which runs as under:
â18. 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 behalfâ
xxxxx xxxxx xxxxx
(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:
Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis:
Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality.â
7. A bare perusal of clause (c) of Section 18 of the Act, 1940 would show that it 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 which is not of standard quality or is misbranded or adulterated or spurious and which is not in accordance with the conditions of the licence issued for such purpose.
8. Section 27 (b) (ii) of the Act, 1940 is a penal provision for violation of Section 18(c) of the Act, 1940. Section 27 (b) (ii) of the Act, 1940 reads thus:
â27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.âWhoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,â
xxxxx xxxxx xxxxx
(b) any drugâ
xxxxx xxxxx xxxxx
(ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more:
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years and of fine of less than one lakh rupees.â
9. Section 27 of the Act, 1940 enumerates three separate categories of the cases; firstly, manufacture for sale; secondly, actual sale; and thirdly, stocking or exhibiting for sale or distribution of a drug.
10. In Mohd. Shabir v. State of Maharashtra, (1979) 1 SCC 568: (AIR 1979 SC 564) their Lordships of the Supreme Court clearly held that in order to establish offence under Section 27 (a) (i) and (ii) read with Section 18(c) of the Act, 1940, the prosecution has to positively prove that the accused was manufacturing the drug for sale or was selling the same or was stocking the same or exhibited the article for sale, and concluded as under:
â4â¦â¦We, therefore, hold that before a person can be 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 possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant.
11. Thus, in light of the statutory provision contained in Section 18(c) of the Act, 1940, i.e., the provision relating to prohibition of manufacture, sale, stocking/exhibiting for sale or distribution of a drug/cosmetic except under, and in accordance with the conditions, of, a licence issued therefor and also having considered the penal provision in this regard and the. parameters laid down by their Lordships of the Supreme Court to establish the offence under Section 27(a)(i)(ii) read with Section 18(c) of the Act, 1940, falling back to the facts of the instant case, it would appear that the prosecution seized (Ex.P-1) some scheduled drugs like Dettol, Boric Acid, Eucalyptus Oil and Chlorom Phenicol from the applicant. Drug Inspector Manmohan Molasariya (PW-2), Incharge Senior Drug Inspector Hargovind Koshthi (PW-3) and Sample Assistant S.K.Mukherjee (PW-4), who conducted the search in the shop M/s. Jai Hind Stores, have been examined. All of them have simply stated that the scheduled drugs were recovered from the possession of the applicant in the shop, but in the statements before the Court they have not stated that the scheduled drugs were either actually being sold or they were stocked/ exhibited for the purpose of sale. It appears that there is no evidence to show that the present applicant had either got the possession of aforesaid scheduled drugs for the purpose of sale or was selling the said drugs or had stocked/exhibited the said drugs for sale and, therefore, the possession simpliciter of the aforesaid scheduled drugs is not punishable under Section 27 (b) (ii) of the Act, 1940. Apart from this, it is not the case of the prosecution that the search was conducted on a complaint of manufacture for sale or of sale or of stocking/exhibiting for sale of a drug, but, it is the case of the prosecution that Dinesh Kendua Malham was being sold contrary, to the provisions of the Act, 1940 and, therefore, the search was made. Therefore, on the face of the record, the essential ingredients to constitute the offence under Section 27 of the Act, 1940 are not available and established. Therefore, the conviction awarded to the applicant for offence under Section 27 (b) (ii) of the Act, 1940 for violation of Section 18 (c) of the Act, 1940 cannot be sustained and is hereby set aside.
12. The determination of the question of conviction awarded to the applicant for the offence under Section 27 (b)(ii) of the Act, 1940 brings me to the next question whether the conviction awarded to the applicant for the offence under Section 28 of the Act, 1940 for violation of Section 18(a)(vi) of the Act, 1940 is just and proper?
13. Sub-clause (vi) of clause (a) of Section 18 of the Act, 1940 runs thus:
â18. Prohibition of manufacture and sale of certain drugs and cosmetics.âFrom 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 behalfâ
(a) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distributeâ
xxxxx xxxxx xxxxx
(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;â
14. Punishment for violation of Section 18 (a) (vi) of the Act, 1940 is provided in Section 28 of the Act, 1940.
15. In the instant case, there are uncontroverted documents on record that after seizure of the aforesaid scheduled drugs vide Ex.P-1, two notices dated 8-10-1998 (Ex.P-8) and dated 2-11-1998 (Ex.P-11) were served to the present applicant by registered post and a notice dated 21-12-1998 (Ex.P-16) was served to Bhanwarlal Jain, the proprietor of M/s. Jai Hind Stores by registered post to disclose the source of the purchase-bills, details of sale and drug licence, but neither the present applicant nor the proprietor Bhanwarlal lain submitted reply to the notices served to them nor they submitted the bills/drug licence, which the present applicant was obliged to submit. The aforesaid act of the present applicant clearly falls within the ambit of Section 28 of the Act, 1940 and, therefore, he has rightly been convicted under Section 28 of the Act, 1940 and rightly sentenced with fine of Rs.1,000. Thus, the conviction awarded to the applicant for offence under Section 28 of the Act, 1940 for violation of Section 18 (a) (vi) of the Act, 1940 is hereby affirmed.
16. Concludingly, the revision is allowed in part. The conviction recorded and sentence awarded to the applicant for offence under Section 27 (b) (ii) of the Act, 1940 are hereby set aside and he is acquitted of the charge framed under Section 27 (b) (ii) of the Act, 1940. Whereas, the conviction recorded and sentence awarded to him for offence under Section 28 of the Act, 1940 are hereby affirmed. The bail bonds furnished by the applicant shall, under Section 437 A, Cri PC, remain in force for a further period of six months from today.
Revision partly allowed.