:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.429 OF 2002 CRIMINAL APPEAL NO.429 OF 2002 CRIMINAL APPEAL NO.429 OF 2002 The State of Maharashtra (Through Drug Inspector, S.R.Salunkhe) ...Appellant. v. Tukaram Daulat Baing Resident of Bhowade, Baingwadi, Post Kirbet, Tal: Sangmeshwar Dist. Ratnagiri ...Respondent. Mr.A.S.Shitole, APP for the Appellant/State. Ms.P.M.Bhansali , adv. for the Respondent. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 2nd April, 2009. DATE: 2nd April, 2009. DATE: 2nd April, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The respondent/original accused was charged for the contravention of provisions of Section 18(c) and 18A punishable under Section 27 and 28 respectively under the Drugs and Cosmetics Act, 1940 (In short ’Said Act’). Learned Magistrate who tried the respondent by his judgment and order dated 22.3.1999 convicted him for both the above offences and sentenced to suffer R.I. for one year and three months respectively. Respondent being aggrieved preferred Criminal Appeal No.8 of 1999 before the Sessions Court at Ratnagiri and by the impugned judgment and order, respondent came to be acquitted of the charges levelled against him. Appellant/State has taken exception to this order of :2: acquittal. 2. Prosecution story in brief was as under; . The complainant Salunkhe was working as a Drug Inspector at Ratnagiri. He received complaint from the office of the Collector disclosing that the respondent was practising as a Doctor without having any degree at Village:Bhowade, Baingwadi, Post: Kirbet, Tal: Sangameshwar, Dist: Ratnagiri and used to sell the medicines without licence. On 31st August, 1991, the complainant alongwith Gramsevak went to the house of the respondent, which is bearing no.313 of Village: Bhowade, Baingwadi. Respondent was not available when the complainant went to his house. Mother of the respondent shown the place where the respondent used to practise as a Doctor and also shown the premises where the medicines were stored. Complainant called two panchas and in presence of panchas recorded the panchanama of the stock of the medicines. Meanwhile, respondent returned to the house. Respondent was asked to produce the certificate of his registration as medical practitioner. He was also asked to produce the bills showing from whom he has purchased the medicines. In spite of sufficient opportunity, respondent could not produce any bills except the certificate of Health and Medicals showing his membership in Homeopathy. Respondent was not having any licence either to sell or :3: to store the medicines. Therefore, after due enquiry complainant filed a complaint against the accused. 3. Charge was framed against the respondent under Section 18(c) r/w 27 and under Section 18(A) r/w 28 of the said Act. Charge was explained to the respondent to which he denied and claimed to be tried. His defence was that of total denial and false implication. 4. Prosecution in order to establish the charge against the respondent examined four witnesses, namely, P.W.1 Complainant Salunkhe, P.W.2 Jugaji Dhondu Jaigade, P.W.3 Murlidhar Gunaji Baing and P.W.4/Gramsevak Sudhir Shankar Sawantdesai. Prosecution also relied upon the panchanamas at Exhibits 52 and 53 dated 31.8.1991 and 18.10.1991 respectively. 5. Learned Magistrate on the basis of evidence led by the prosecution concluded that the charge against the respondent is proved beyond any reasonable doubt and accordingly, convicted the respondent for the offences for which he was charged. 6. The respondent preferred an appeal and learned Additional Sessions Judge by the impugned judgment and order allowed the same by quashing and setting aside his conviction. :4: 7. Mr.Shitole learned APP for the State took me through the depositions of the witnesses and submitted that there is enough evidence on record to prove the guilt of the accused beyond any reasonable doubt. He also submitted that the learned Magistrate correctly appreciated the evidence and convicted the respondent. However, the lower appellate Court namely, Additional Sessions Judge committed error in quashing and setting aside the well reasoned order of Magistrate. Ms.Bhansali learned counsel for the respondent, on the contrary supported the impugned judgment. 8. Having gone through the evidence of witnesses and having heard respective counsel for the respective parties, I do not find any merit in the appeal. Respondent was charged for contravention of provisions of Section 18(c) and 18A punishable under Sections 27 and 28 of the said Act. Now let us first consider allegations against the respondent regarding contravention of the provisions of Section 18(c) of the said Act. Section 18(c) and Section 27 of the said Act is interpreted by the Apex Court in a case reported in Mohd. Shabbir v. State of Maharashtra AIR 1979 Supreme Mohd. Shabbir v. State of Maharashtra AIR 1979 Supreme Mohd. Shabbir v. State of Maharashtra AIR 1979 Supreme Court 564. Court 564. Court 564. In paragraph 4, the Supreme Court made following observations: "4....................... Thus the section postulates three separate categories of cases :5: 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, S. 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr.Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of S.27. We, therefore, hold that before a person can be liable for prosecution or conviction under S.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 S.27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant." The plain reading of the Supreme Court’s observations will reveal that before the person can be held liable for conviction under Section 18(c) read with Section 27, it must be proved by the prosecution that accused was manufacturing drugs for sale or selling the same or stocked them for sale. Turning to the facts of the present case, it is not the prosecution case that the :6: respondent was found selling any of the drugs at his house. Not a single witness has been examined to prove that he has purchased any medicine from the respondent at any time. The room from which the alleged drugs were seized was found closed. In these facts and circumstances, there is absolutely no evidence of the respondent selling the drugs. Therefore, even assuming for the sake of arguments that the respondent was found in possession of the alleged drugs, he can not be said to have committed an offence punishable under Section 27 read with Section 18(c), in view of the above Apex Court’s judgment. Similar findings are recorded by learned Additional Sessions Judge and I do not find any error. 9. So far as the charge under Section 18A read with Section 28 is concerned, learned Additional Sessions Judge relied upon the extracts of the house at Exhibit 34 from which alleged drugs were recovered under the panchanama at Exhibit 52. The above Exhibit 34 goes to show that the said house stands in the name of the brother of the respondent by name Shantaram Baing. P.W.2 Gramsevak though examined, has turned hostile. P.W.4 Gramsevak proved certificate at Exhibit 34. P.W.3 panch witness from the same village deposed that respondent jointly resides alongwith his two brothers including Shantaram in whose name house in question stands. Prosecution also failed to record the statement :7: of any of the brothers of the respondent or the statement of the mother of the respondent. In this background, learned Sessions Judge recorded findings that evidence on record is insufficient to prove conscious possession of the alleged drugs/medicines by the respondent and, therefore, if the conscious possession of the respondent is not proved then it is not expected from him to produce any information regarding the purchase of drugs. Learned Additional Sessions Judge accordingly gave benefit of doubt to the respondent and acquitted him. I do not find any error in the approach adopted by learned Additional Sessions Judge. View taken by learned Additional Sessions Judge is a possible view and, therefore, same can not be interfered with in an appeal against acquittal. I find no merit in the appeal and the same is accordingly, dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)