1 crap1392.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1392 OF 2011 IN CRIMINAL APPLICATION NO. 2514 OF 2010 Maharashtra State Pharmacy Council ...Applicant VERSUS Mr. Shaikh Sikandar Shaikh Mustaffa & anr. ...Respondents ..... Shri S.T.Veer, advocate for applicant Shri Prashant Deshmukh, advocate for respondent nos. 1 and 2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 24 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking permission to place on record the copy of the 2 crap1392.11 official transfer order, dated 18.1.2006, issued by the State Pharmacy Council in favour of the complainant. 3 It is the contention of the applicant that the applicant has filed Criminal Application No.2514 of 2010 before this court seeking leave to file appeal, challenging the judgment and order, dated 31.3.2008, passed by the learned Chief Judicial Magistrate, Osmanabad, in S.C.C. No. 7 of 2007, thereby acquitting the respondents (original accused) for the offence punishable under Sections 42(1) and 42(2) of the Maharashtra Pharmacy Act, 1948 and the said Criminal Application No. 2514 of 2010 is pending for hearing. 4 The applicant contends that the alleged transfer order, dated 18.1.2006 was issued by the State Pharmacy Council, which clearly indicates that the applicant has been working as Pharmacy Inspector for Osmanabad District, since 10.2.2006, and accordingly, the complainant is working as Pharmacy Inspector for Aurangabad Region, which consists of Aurangabad, Jalna, Parbhani, Hingoli, Nanded, Latur,Osmanabad and Beed Districts, and as such the complainant is very much competent person for enforcement of Section 42 of the Pharmacy Act, 1948. 3 crap1392.11 5 The applicant also submits that he has been working as Pharmacy Inspector with the State Pharmacy Council since 21.11.2006. At this juncture, learned counsel for the applicant submits that the said date has been mentioned inadvertently and same should have been 20.1.2003, and as such, prayed to grant leave to amend the said date. According to the applicant, initially he was appointed as Pharmacy Inspector for Amravati Region and he has already placed on record copies of the order at Exh.19 and the identity card at Exh.23. The complainant has also placed on record the evidence to prove that he was working as Pharmacy Inspector for Osmanabad district at the relevant time. 6 According to the applicant, on 10.1.2006, the State Pharmacy Council made changes in the area of Pharmacy Inspectors of State Pharmacy Council and the applicant was ordered to work for the State Pharmacy Council for Aurangabad region from 10.2.2006, and as such, the applicant is working as Pharmacy Inspector for Aurangabad region since 10.2.2006 and the copy of the official transfer order, dated 18.1.2006 is annexed at Exh.’AE’. Accordingly, the applicant submits that the applicant visited the premises of the accused on 13.3.2006 and on 23.8.2006 and found illegal activities of the accused persons in contravention of the provision of Section 42 of the Pharmacy Act, and therefore, he 4 crap1392.11 forwarded his report to the State Pharmacy Council. Hence, on the afore said background, the applicant submits that it is necessary to place on record the official transfer order, dated 18.1.2006 issued by the State Pharmacy Council in favour of the complainant. 7 Respondents filed the affidavit in reply and opposed the present application vehemently and denied the averments and contentions in the present application, unless admittedly specifically. It is the contention of the respondents that the applicant is originally resident of Osmanabad and he has misused the powers vested by law in him and he was not competent person for enforcement of Section 42 of the Pharmacy Act, 1948 for Osmanabad District, because the applicant produced the documentary evidence i.e. appointment order, dated 15.1.2003 on record and his Head Quarter is Amravati Division, which is at Exh.23. The applicant has produced the transfer order, dated 18.1.2006 for the first time on record, which is not legal and proper as per the provisions of law. It is also the contention of the respondents that the applicant has produced transfer order, dated 18.1.2006 along with the present application, but the question arises whether the transfer order is implemented/given effect or not, because the applicant has not produced any joining report to Aurangabad Division. Moreover, it is also submitted that it is a mid-term transfer and question arises 5 crap1392.11 whether it was challenged before the Tribunal or whether it was really given effect. Hence, it is submitted that it does not mean that the said transfer order was given effect and was implemented immediately. 8 Besides, it is submitted that the applicant has lodged complaint on 2.1.2007 and it is alleged that he is duly working as Pharmacy Inspector for Osmanabad district since 10.2.2006, and therefore, he should have submitted transfer order, dated 18.1.2006 on record at the time of lodging the complaint, dated 2.1.2007 itself or at least at the time of recording his evidence before the Tribunal, but so did not happen. Hence, mere bald statement in the complaint is not sufficient to prove that the applicant is very much competent person for enforcement of Section 42 of the Pharmacy Act, 1948. 9 As regards the contention of the applicant that he was working as Pharmacy Inspector since 22.11.2006, it is seen that the applicant joined his duties after transfer from the said date in Aurangabad Division, and it is submitted that the document produced by the applicant on record does not show that he was working as Pharmacy Inspector in Osmanabad district at the relevant time. Accordingly, the respondents urged that the present application bears no substance and same is devoid of any merits and same be 6 crap1392.11 dismissed. 10 After considering the contents of the present application, as well as contents in the affidavit in reply and also considering the rival submissions advanced by the learned counsel for the parties, at the out set, the date mentioned in para no.2 in the application in respect of working of the applicant as Phamacy Inspector from 22.11.2006, is required to be permitted to be amended as 20.1.2003, since it appears to be typographical mistake and contrary to the record. Such leave is, therefore, required to be granted as prayed for by the applicant. Hence, leave to amend the date in para no.2 of the present application, granted. Amendment to be carried out forthwith. 11 Moreover, the applicant has annexed the transfer order, dated 18.1.2006 at Exh.’AE’ and categorically stated in the present application that the said transfer order issued by the State Pharmacy Council clearly indicates that the applicant is duly working as Pharmacy Inspector for Osmanabad District also since 10.2.2006, and the said contention has been made by the applicant on oath, and therefore, it is apparent that the said transfer order dated 18.1.2006 has been given effect from 10.2.2006. itself, and hence, there is no substance in the objection raised by the learned counsel or the respondents in that respect. 7 crap1392.11 12 The learned counsel for the applicant also contended that Section 391 of the Code of Criminal Procedure empowers the Appellate Court to take such additional evidence on record, if it thinks that the additional evidence is necessary, and in support of his said contention, relied upon the judicial pronouncement in the case of Rajeshwar Prasad Misra vs The State of W.B., reported at AIR 1965 SC 1887, and urged that since the said transfer order, dated 18.1.2006 goes to the root of the matter in the accompanying Criminal Application seeking leave to file appeal, the said transfer order is required to be permitted to be filed on record as additional evidence as per Section 391 of the Code of Criminal Procedure and relying upon the afore said Ruling, in the interest of justice. 13 In the result, present application is allowed in terms of prayer clause ‘B’ thereof and the applicant is allowed to place on record the copy of official transfer order, dated 18.1.2006, issued by the State Pharmacy Council in favour of the complainant, on record in Criminal Application No. 2514 of 2010 and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), 8 crap1392.11 JUDGE. dbm/crap1392.11