IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2294 of 2002 Date of decision: 4th June, 2010 Prem Kumar … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Kamaldeep Singh Sodhi, Advocate Amicus Curiae, assisted by Mr. Veneet Sharma, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Present revision petition has been filed by Prem Kumar. He was tried in a complaint filed by District Drug Inspector, Amritsar-II, wherein it was stated that the accused had contravened the provisions of Section 18A(i) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as, ‘the Act’) punishable under Section 27(c) of the Act. It was further stated that the petitioner had also contravened provisions of Section 18A of the Act punishable under Section 28 of the Act. The Court of Chief Judicial Magistrate, Amritsar vide its judgment dated 18th October, 1997 held the petitioner guilty for an offence punishable under Sections 27(c) and 28 of the Act, and vide a separate Criminal Revision No.2294 of 2002 order of even date, sentenced him under Section 27(c) of the Act to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for nine months. The petitioner was further sentenced under Section 28 of the Act to undergo rigorous imprisonment for a period of six months with a fine of Rs.500/- and in default of payment of fine he was ordered to undergo further rigorous imprisonment for two months. Both the sentences were ordered to run concurrently. Aggrieved against the same, petitioner had filed an appeal. The Court of Additional Sessions Judge, Amritsar found no merit in the appeal and had dismissed the same, while upholding the conviction and maintaining the sentence. Harbhajan Singh, District Drugs Inspector, who was duly authorized vide a Notification issued under Section 21 of the Act, inspected the premises of M/s New Mehta Medical Store, Harike, Amritsar. The petitioner, being a Proprietor of the firm, was present in the shop. During search of the shop, a glass-bottle containing 60 capsules of Tetracycline 250 mg I.P. Batch No.257 alleged to be manufactured by Indian Pharma Labs, 581, Nangloi, New Delhi were recovered from the counter of the shop. These capsules were divided into four equal parts and were sealed separately as samples in the presence of accused- petitioner. The accused-petitioner had also issued a receipt Ex.PD having received Rs.41.20 from the District Drug Inspector, Amritsar-II against bill No.401 as price of the drug samples seized from the shop. The District Drug Inspector had also prepared recovery memo on Form No.70. One copy of the recovery memo and one sealed parcel of the sample was given to the accused-petitioner. Similarly, a sample of injection 2 Criminal Revision No.2294 of 2002 Cyanocobalmin I.P. Batch No. CY-6/30 alleged to be manufactured by Talson Pharmaceutical, Panchkula was seized for analysis and a separate memo of recovery was prepared. The samples so sealed were sent to the Government Analyst, Punjab, Chandigarh for analysis. The accused-petitioner was also directed vide a separate letter dated 7th November, 1989 to produce the purchase record of the capsules Tetracycline and injection Cyanocobalmin, but neither he responded nor submitted any information regarding the purchase and sale record. The Government Analyst Punjab vide its report dated 10th November, 1989, declared the capsules of Tetracycline to be spurious and not of standard quality. On issuance of sanction order to prosecute the accused- petitioner, a complaint was filed, in which it was stated that since the Tetracycline capsules recovered were spurious, the petitioner had contravened provisions of section 18A(i) of the Act punishable under Section 27(c) of the Act. Furthermore, since the accused had not disclosed the source of its acquisition/purchase and the record pertaining to the same, he had contravened provisions of Section 18A of the Act punishable under Section 28 of the Act. Thereafter, the complainant led pre-charge evidence and examined himself as PW-1 and Daljit Singh Sodhi as PW-2. On 5th January, 1995, the Court of Chief Judicial Magistrate, Amritsar framed charge against the petitioner, which reads as follows: “1. That on 27.10.89 in the area of Harike, you were found stocking in your shop M/s New Mehta Medical Store, Harike, for sale the Tetracycline capsules, bearing Batch No.257 alleged to have been manufactured by Indian Pharma Laboratories, New Delhi, which have been declared as not of standard quality/spurious u/s 27-B and thereby you have violated Section 18(a)(i) read with sec. 17-B of the 3 Criminal Revision No.2294 of 2002 Drugs and Cosmetics Act, 1940, which is punishable u/s 27C of the Act and within my cognizance. 2. Secondly on the same date, time and place, you could not disclose the name and address of the persons from whom you acquired the said capsules and thereby you have violated Section 18-A of the Act, which is punishable u/s 28 of the Act and same is within my cognizance. And I hereby direct that you be tried by me on the above said offences.” The petitioner pleaded not guilty and claimed trial. After framing of the charge, the witnesses were re-called for cross- examination. Harbhajan Singh PW-1 reiterated as to what was stated in the complaint. He deposed regarding inspection of the shop, recovery of capsules and injection, their forwarding to the Public Analyst Laboratory and the fact that the capsules were declared sub-standard and spurious. He further disclosed that the accused was asked to furnish the source of acquisition and purchase, and after the prosecution order Ex.PL was passed, complaint Ex.PM was filed against the petitioner. Daljit Singh Sodhi PW-2 proved that the petitioner was a sole proprietor of M/s New Mehta Medical Store and a wholesale drugs licence had been issued in his favour. In cross-examination, this witness stated that he was working as a Dealing Assistant in the Drugs Branch since the year 1991 and the prosecution order Ex.PL was issued before his posting on the present seat. Harbhajan Singh PW-1 during cross-examination stated that he was accompanied by a peon of the Department, namely Bhupinder Singh and a driver of the Government vehicle. This witness denied the suggestion that no report of the Analyst was sent to the accused. He stated that an intimation was sent to the accused and the letters were 4 Criminal Revision No.2294 of 2002 despatched and posted by the clerk of the Department. He further stated that he had not issued any notice to the manufacturer. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. He denied the same and gave following version: “I am innocent. I am falsely implicated in the case. The Drug Inspector is not duly notified Drug Inspector. He is not competent to seize the sample and launch the prosecution. The alleged sample was not seized as per rules. The sample was not properly kept by the Drug Inspector or any other person and has been tampered with, with a view to falsely implicate me. The sanction is illegal, void and bad in the eye of law. I am not liable for any prosecution, as I had purchased the said goods under proper bill. I was not informed by Drug Inspector as per rules.” No witness was examined in defence. Since in the present case, nobody was appearing on behalf of the petitioner, on May 5, 2010 a request was made to the Punjab State Legal Services Authority, Chandigarh to appoint an Amicus Curiae from the panel of Advocates to argue the present revision petition. Accordingly, the Punjab State Legal Services Authority, Chandigarh has appointed Mr.Kamaldeep Singh Sodhi, Advocate as an Amicus Curiae to argue the present revision petition. Mr. Sodhi has made submissions before this Court. During the course of arguments, Mr.Veneet Sharma, Advocate for the petitioner, also appeared and assisted Mr.Sodhi. Mr.Sodhi has relied upon a judgment rendered by a Single Bench of this Court in ‘Mukhtiar Singh v. State through District Drug Inspector, Narnaul’ 2003 (3) RCR (Criminal) 502 and another judgment rendered in ‘Rattan Singh v. State of Punjab’ 1984 (2) RCR (Criminal) 6 5 Criminal Revision No.2294 of 2002 to contend that in the present case, no independent witness was associated by the District Drug Inspector. Furthermore, no corroboration is coming forward to the testimony of Harbhajan Singh PW-1 from any independent source. Thus, the recovery of capsules and injections from the shop of the accused-petitioner is to be discarded, as it cannot be ruled out that the recovery of capsules of Tetracycline was not a padding. I have considered this argument. The testimony of Harbhajan Singh, District Drugs Inspector PW-1 aspires confidence. He had no animus to falsely implicate the accused-petitioner. He had acted in discharge of his official duty and it is not a case where evidence of the official witnesses is not trustworthy and the Court has to look for corroboration from an independent source. Another argument raised before this Court is that in the notification Ex.PA, name of Harbhajan Singh, District Drugs Inspector has been spelt-out as Harbachan Singh, Drug Inspector, therefore, the Inspector was not competent to effect the recovery and search the premises. The Drugs Inspector has explained that this was a typographical error. No fault can be found with the explanation furnished by the Drugs Inspector. In the present case, the sample was taken on 27th October, 1989. It has further been urged that Section 100(4) Cr.P.C. has not been complied with and two independent witnesses were not joined when the recovery was effected. I have already held that in each and every case, association and examination of independent witnesses is not necessary. Lastly, reliance has been placed upon a judgment rendered by this Court in ‘Hem Raj v. State of Punjab’ 2008(3) RCR (Criminal) 475; another judgment of a Single Bench of this Court rendered in 6 Criminal Revision No.2294 of 2002 ‘Pawan Kumar Bansal v. State of Haryana’ 2004(2) RCR (Criminal) 325; ‘Rashpal Singh v. State of Haryana’ 2003(2) RCR (Criminal) 441; and ‘Vijay Kumar Jindal v. State of Punjab’ 2004(2) RCR (Criminal) 816 to urge that either the petitioner should be released on probation or the sentence awarded to him should be reduced to the period already undergone, as in the present case, occurrence pertains to the year 1989 and the petitioner has suffered mental pain and agony of a protracted trial for more than two decades. All the above said judgments are not applicable on the facts and circumstances of the present case. In the above said cases, the drugs were recovered from the possession of the accused, who were not holding a valid licence, but the drugs were not spurious. In the present case, the drugs have been held to be sub-standard and spurious. Furthermore, the accused-petitioner had not disclosed the source of their acquisition and purchase. The Court cannot encourage the sale of spurious drugs in the market, as one who is ailing or sick, always purchases the medicine with a faith that he will be healed. Taking these factors into consideration, the Act has provided a minimum sentence of three years rigorous imprisonment, which has been awarded to the petitioner. Thus, there is no merit in the present revision petition and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE June 4, 2010 rps 7