Samar Kumar SwaIn Vs. Shri Subodha Kumar Nayak - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - he also noticed that the accused-petitioner was not maintaining the registers meant for recording the supply of drugs as well as the records for purchase of drugs intended for sale. the complainant verified the sales, cash/credit memos of some of the agencies and noticed that the accused-petitioner had purchased and sold the scheduled drugs in absence of qualified person (pharmacist). on being asked by the complainant, the accused-petitioner also failed to produce the register and documents as prescribed under rule 65 of the drugs and cosmetics rules, 1945. hence, the complainant seized 27 items of drugs and documents of the firm and lodged prosecution report against the accused-petitioner for contravention of sections 18(a)(vi) and 18-b of the drugs and cosmetics act, 1940 punishable under sections 27(d) and 28-a of the said act respectively. 8. perused the records and the provisions of sections 18(a)(vi), 18-b, 27(d) and 28-a of the drugs and cosmetics act, 1940 as well as rule 65 of the drugs and cosmetics rules, 1945. 9. in order to make a person liable for conviction under section 27(d) of the drugs and cosmetics act, the prosecution has to affirmatively prove that he manufactured the drugs for sale, or was selling the same or had stocked or exhibited them for sale. 564. 10. for better appreciation, section 27(d) of the drugs and cosmetics act is quoted below: 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. 13. in view of the analysis made above, this court is of the opinion that the prosecution has failed to prove any of the charges levelled against the accused-petitioner.pradip mohanty, j.1. this revision is directed against the judgment dated 24.11.2000 passed by the learned addl. sessions judge, kendrapara in criminal appeal no. 46 of 1995, confirming the judgment of conviction and order of sentence passed by the j.m.f.c, kendrapara in 2(c) c.c. case no. 15 of 1991/trial case no. 264 of 1995.2. the case of the prosecution is that the accused-petitioner was the proprietor of m/s. sarala pharmaceuticals, a retail medicine store, situated at marsaghai. on 15.02.1991 at 1.00 p.m. the complainant-drug inspector along with assistant controller of drugs, bhubaneswar inspected the firm of the accused-petitioner. he found that the drug licence of the said firm was valid up to 31.12.1989 and not renewed thereafter, the registered pharmacist, who was managing the firm, had resigned on 03.09.1988 and thereafter the accused-petitioner had not appointed any other pharmacist. he also noticed that the accused-petitioner was not maintaining the registers meant for recording the supply of drugs as well as the records for purchase of drugs intended for sale. the complainant verified the sales, cash/credit memos of some of the agencies and noticed that the accused-petitioner had purchased and sold the scheduled drugs in absence of qualified person (pharmacist). on being asked by the complainant, the accused-petitioner also failed to produce the register and documents as prescribed under rule 65 of the drugs and cosmetics rules, 1945. hence, the complainant seized 27 items of drugs and documents of the firm and lodged prosecution report against the accused-petitioner for contravention of sections 18(a)(vi) and 18-b of the drugs and cosmetics act, 1940 punishable under sections 27(d) and 28-a of the said act respectively. the learned magistrate on receipt of the prosecution report took cognizance under the above sections.3. the plea of the accused-petitioner is one of complete denial of the allegation.4. in order to prove its case, prosecution examined as many as six witnesses and exhibited seven documents along with seizure list and cash memos. the defence examined none.5. the learned j.m.f.c. kendrapara, who tried the case by his judgment dated 28.11.1995 convicted the accused-petitioner under sections 27(6) and 28-a of the drugs and cosmetics act and for the offence under section 27(d) sentenced him to undergo rigorous imprisonment for one year and to pay a fine of rs. 500/-, in default rigorous imprisonment for another month, and for the offence under section 28-a sentenced him to pay a fine of rs. 500/- in default to undergo simple imprisonment for a period of one month. against the said judgment and order of conviction, the accused-petitioner preferred crl. appeal no. 46 of 1995 before the learned additional sessions judge, kendrapara, who after hearing the parties dismissed the same and upheld the judgment of conviction and sentence passed by the trial court.6. mr. panda, learned counsel for the petitioner submits that the drug licence of the petitioner was valid up to 31.12.1989. as the licence was not renewed, the petitioner closed the shop. although there was stock of medicines, the petitioner was not selling the same. the prosecution has not produced any material to show that the petitioner was selling medicines after 31.12.1989. he further submits that the search and seizure was not effected in accordance with the provisions of law as enunciated in the criminal procedure code in view of the admission of p.w.1, the drug inspector, in his cross-examination at para 18 that he did not associate any independent witness at the time of search and seizure. further, there was no valid sanction for the prosecution. therefore, the entire prosecution case is vitiated. the appellate court without considering the evidence on record in proper perspective confirmed the judgment and order of conviction passed by the trial court, which is illegal and liable to be set aside.7. mr. mishra, learned additional government advocate vehemently argues that their are ample materials against the petitioner for commission of the above offence. the search was conducted on 15.02.1991. the drug licence of the accused-petitioner had expired on 31.12.1989. so, at the relevant time, the petitioner had no valid drug licence. he further submits that no register was maintained by the petitioner regarding supply and purchase of drugs. the petitioner had purchased some drugs after expiry of the licence and was in possession of the same. the evidence of p.ws.3 to 6, the sub-wholesalers, is clear in that regard. there is nothing on record to disbelieve the evidence of the prosecution witnesses. therefore, no illegality has been committed by the courts below in convicting the accused-petitioner.8. perused the records and the provisions of sections 18(a)(vi), 18-b, 27(d) and 28-a of the drugs and cosmetics act, 1940 as well as rule 65 of the drugs and cosmetics rules, 1945.9. in order to make a person liable for conviction under section 27(d) of the drugs and cosmetics act, the prosecution has to affirmatively prove that he manufactured the drugs for sale, or was selling the same or had stocked or exhibited them for sale. it is the settled principle of law that in order to establish the offence under section 27(d) of the act, it is the duty of the prosecution to prove the above ingredients and the possession simpliciter of the drugs of any quantity whatsoever would not fall within the mischief of section 27 of the act. see mohd. shabbir v. state of maharashtra : air 1979 s.c. 564.10. for better appreciation, section 27(d) of the drugs and cosmetics act is quoted below:27. penalty for manufacture, sale, etc., of drugs in contravention of this chapter whoever, 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,-(a) xx xx xx(b) xx xx xx(c) xx xx xx(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this chapter or any rule made there under, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine;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 one year.11. on a bare reading of the above provisions and the ratio decided in mohd. shabbir's case (supra), it is crystal clear 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 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. p.w.1 is the drug inspector and a witness to seizure. he states that he seized the stocks from the possession of the petitioner as also some documents. he noticed to the petitioner for renewal of the licence and to supply the name of the pharmacist and his certificate. but the petitioner did not supply the same before expiry of the licence. p.w.2 is the assistant drug controller, orissa. p.ws.3, 4 5 and 6 are the sub-wholesalers of medicines of different firms. they state that the accused-petitioner had purchased medicines from hem. but none of the prosecution witnesses has anywhere stated that the accused-petitioner was selling medicines without any licence. there is no dispute that the petitioner's drug licence was valid up to 31.12.1989. there is also no dispute with regard to seizure of the medicines. but in absence of any evidence that the petitioner was selling medicines and/or had stocked the same for sale, his conviction under section 27(d) cannot be sustained.12. now, it is to be seen whether the petitioner is guilty of the charge under section 28-a of the drugs and cosmetics act. section 28-a reads thus:28-a. penalty for not keeping documents, etc., and for non-disclosure of information. whoever without reasonable cause or excuse contravenes the provisions of section 18-b shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.from the above provision it is crystal clear that a person will be liable for punishment under this section if he contravenes the provisions of section 18-b which says that every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this act such information as is required by such officer or authority for carrying out the purposes of the act. in the instant case, admittedly the accused-petitioner was not holding any valid licence at the relevant time. there is no material that the accused-petitioner was selling medicines or had stocked the same for sale. therefore, he was not required either to maintain records, registers and other documents or to furnish the same to any officer or authority. thus, the charge under section 28-a against the accused-petitioner fails.13. in view of the analysis made above, this court is of the opinion that the prosecution has failed to prove any of the charges levelled against the accused-petitioner. therefore, the judgments of conviction and sentence passed by the courts below are set aside and the accused-petitioner is acquitted of the charges.the criminal revision is allowed.