THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 261 of 2009 ORDER: The accused Nos.2 and 3 in C.C.No.449 of 1996 on the file of the Additional Munsif Magistrate, Sattenapalli, who were convicted for the offences under (1) Section 27(c) of the Drugs & Cosmetics Act, 1940 (for short “the Act”) against A-1 to A-3; (2) Section 27(b) of the Act against A-3; (3) Section 27(d) of the Act against A-1 to A-3; (4) Section 28-A of the Act against A-1 to A-3 [for violation under Section 18-B read with Rule 65(6) of the Drugs and Cosmetics Rules, 1945 (for short “the Rules”)]; and (5) Section 28-A of the Act against A-1 to A-3 [for violation under Section 18-A read with Rule 65(5)(3) of the Rules]; and the same were confirmed against A-2 and A-3 in Criminal Appeal No.493 of 2006 on the file of the IV Additional Sessions Judge, Guntur, are the appellants herein. The gist of the prosecution is that A-1 is the sole proprietor of A-2 firm having a valid license to sell drugs and A-3 is the husband of A-1. On 03.12.1993 the Drugs Inspector, P.W.1, visited the nursing home of A-4 (who has since been acquitted by the trial Court) and found certain drugs said to have been manufactured by M/s Hamac Pharmaceuticals and suspected to be spurious and seized the drug labelled as minozyme under due acknowledgment and freezed the drug. On 28.12.1993 he also inspected the shop of A-2 and found stock of the same drug and freezed the same and at that time A-3 was present and he was requested to produce the bills. The matter was reported to the Assistant Director, Drugs Control Administration at Vijayawada on 04.01.1994. By a letter dated 08.01.1994 and 29.01.1994, A-3 has sent reply through Form No.15 stating that they were not drugs and they were not come within the purview of the Act. Again on 11.02.1994 a notice was sent to A-2 firm for not producing the bills and A-3 has given a reply stating that the provisions are not applicable and it comes under the exempted schedule-K read with Rule 123 of the Rules. A further notice was given to the A-2 firm subsequently. In pursuance of the directions of the Assistant Director and on 29.04.1995 the Drugs Inspector has seized the drugs from the shop of A-2 in the presence of A-3 and mediators and on 29.04.1995 i.e. on the same day from the hospital of A-4 seized the above drug and the date of manufacture was October, 1993 and the date of expiry was October, 1995. At that time A-4 informed that the above drug was purchased from A-2 vide invoice No.22 dated 19.04.1993. The seized drugs were sent for analysis and the analyst opined that the drug is not of standard quality. It was also noticed that M/s Hamac Pharmaceuticals was not in existence. Again a letter was addressed on 13.06.1995 to A-4 to disclose the acquisition as required under Section 18-A and A-4 addressed a letter stating that it was purchased from A-2 vide invoice No.22 dated 19.04.1993. Similar notices were given on 29.06.1995 to A-2 and to confirm the sale of the same to A-4 and on 13.07.1995 A-2 claimed that it was not a drug and the source of acquisition and provision of sale to A-4 was not given. On 31.07.1995, the Drugs Inspector informed A-4 that the purchase bill produced by him did not tally as the drug is said to have been manufactured in October, 1993 and the bill was dated 19.04.1993 and A-4 maintained that though the bill was not tallied the drug was supplied by A-2 and on the basis of it notice was given to A-1 to A-3 and they did not give any reply. Subsequently, the prosecution was laid against all the four accused persons. On behalf of the prosecution, P.Ws.1 to 6 were examined and marked Exs.P-1 to P-45 and A-4 himself was examined as D.W.1 and marked Exs.D-1 to D-4 and also marked M.Os.1 to 14. After considering the material on record, the learned Magistrate found A-4 not guilty and acquitted him and convicted A-1 to A-3 of the following offences: 1. A-1 to A-3 violated Section 17B(d) and found guilty under Section 27(c) of the Drugs and Cosmetics Act and they are sentenced to undergo RI for three years and to pay a fine of Rs.5,000/- each, in default to suffer 6 months simple imprisonment; 2. A-3 violated Section 18(c) and found guilty under Section 27(b) of the Drugs and Cosmetics Act and he is sentenced to undergo RI for three years and to pay a fine of Rs.5,000/-, in default to suffer 6 months simple imprisonment; 3. A-1 to A-3 violated Section 18B r/w Rule 65(6) and found guilty under Section 28A of the Act and sentenced to undergo RI for one year; 4. A-1 to A-3 violated Section 18A r/w Rule 65(5) (3) and found guilty under Section 28A of the Act and sentenced to undergo RI for one year; 5. A-1 to A-3 violated Section 18(a)(i) and found guilty under Section 27(d) of the Drugs & Cosmetics Act and sentenced to undergo RI for two years and to pay a fine of Rs.1,000/- each, in default to suffer SI for 3 months. As against the above judgment dated 20.11.2006 in C.C.No.449 of 2006, an appeal was filed in Criminal Appeal No.493 of 2006 on the file of the IV Additional Sessions Judge, Guntur, who acquitted A-1, however, convicted A-2 and A-3. Aggrieved by the said judgment, the present revision is filed. The point for consideration is whether the conviction and sentence imposed by the Courts below against the revision petitioners is legal and sustainable? POINT: In this case, evidently, the alleged sample was drawn from A-4. From the evidence of P.W.1, it has been specifically elicited that he has not picked up any drug or medicine for test or analysis from the shop of A-2. Before considering the validity of the conviction, it has to be noted that there is enormous delay in proceeding with the prosecution. The first visit of the P.W.1 is said to be on 03.12.1993 to the hospital of A-4 and on 28.12.1993 to the shop of A-2 where the suspected spurious drug is said to have been freezed. It is also to be noted that on 03.12.1993 when the drug was seized from A-4, he was not asked to explain the source as to from where he got the same. It was only on 29.04.1995 when the samples were said to have been seized from A-4, the information was given by A-4 that he purchased the said drug on 19.04.1993 and this stand of his purchase on 19.04.1993 was also confirmed when a subsequent letter was addressed on 31.07.1995 to A-4 pointing about the discrepancy. As matter stands, from the evidence available on record, no sample of the freezed drug was seized from A-2 and A-3. The whole prosecution runs from the starting of the seizure at the hospital of A-4 and the drawing of the samples there and sending them for analysis. Therefore, the first fact, which the prosecution has to prove, is that A-2 has supplied the drug to A-4 and that the same drug was found to be adulterated. Even as per the prosecution case, at the first instance, A-4 has claimed that the purchase was in April, 1993 though the manufacturing date on the alleged drug was October, 1993 and the date of expiry was October, 1995. It is quite improbable that A-4 could have purchased the drug in the month of April, 1993 when the drug is said to have been manufactured in October, 1993. For a long time during the entire trial and even in spite of two notices issued by the Drugs Inspector, A-4 kept quiet and for the first time, after the closure of the evidence, he entered into box and produced Ex.D-1 stating that he purchased the drug under the invoice No.76 dated 10.11.1993 issued by A-2 firm and that it is the correct bill and not Ex.P-20, which is said to be dated 19.04.1993 issued by A-2 firm. It is to be mentioned that at no point of time, A-1 to A-3 have admitted sale of this drug to A-4 and they kept silent and that cannot be taken as an admission of the sale. The learned Magistrate extended the benefit of doubt to A-4 stating that he was not cross-examined and his evidence was not tested. This approach of the learned Magistrate is, evidently, irregular. It is to be noted that even if A-2 is said to be in possession of the same drug, which was said to have been freezed and even if A-2 has claimed that it is not a medicine though there may be an inconsistency sought to be made out by the Courts below from the drug in possession of the accused No.2, the samples were not drawn. Therefore, when the drug, found in possession of A-4, is found to be spurious and when there is inconsistency with regard to the claim of purchase by A-4 and the said inconsistency is apparent because even before the institution of the prosecution he was remanded of the inconsistency and did not plead Ex.D-1 invoice. Therefore, it can only be an after thought and it is only an attempt to come out of the prosecution by A-4, which, unfortunately the Courts below, has given undue importance. Therefore, from the material evidence on record, it is quite clear that the contention of A-4 that the drugs seized from his hospital, which is found to be spurious, is not established to have been sold by A-1 to A-3 since they never admitted the said sale and the version of A-4 is inconsistent. Such inconsistency cannot be forced as a basis for conviction against the other accused persons. Therefore, apparently, it is quite clear that when the drug was seized from A-4, he did not present the information with regard to Ex.P- 20 nor P.W.1 enquired about it. The lower Court has given unwanted importance to the analysis of the drug, which was seized from A-4 to convict the revision petitioners when the evidence on record cannot establish that the very drug was supplied by A-2 and A-3. There is no reason as to why the Drugs Inspector has not taken the sample of some drug from A-2, when it has been freezed on 28.12.1993. If really the same drug was in possession of A-2 and supplied to A-4, consequently the prosecution theory cannot be accepted. Furthermore, it is quite clear that A-2 is a proprietary firm and the sole proprietor is A-1 alone. There is nothing on record to show that A- 3 was authorized to do the business. However, the lower appellate Court has given benefit of doubt to A-1 and acquitted her holding that the business is managed by A-3 alone and that she (A-1) must be only a sleeping proprietor. In fact, this was not the case of the prosecution at all. The learned Magistrate has taken the aid of Section 34 of the Act, that when an offence is committed by a company every person incharge of the business at the time of the offence was held liable. Evidently, A-2 firm is not a company and under the explanation (a) of Section 34 of the Act, the ‘company’ is defined as “a body corporate, and includes a firm or other association of individuals”. However, the charge sheet discloses that A-3 was proprietor of A-2 firm, which fact is incorrect. He was not shown as a person, who was in management of the affairs and was doing business. There is nothing on record to show that it is a registered firm though in the name of the sole proprietor. The evidence of P.W.1 goes to show that on 28.12.1993 when he inspected A-2 shop, he handed over copy of the inspection report to A-3, who was present there and obtained the acknowledgment. His evidence also goes to show that the name of A- 3 was not mentioned in the license as a partner or a proprietor or incharge to the business. In fact, there is nothing on record to show that A-3 was authorized by A-1 to do the business and in fact the evidence of P.W.1 does not show that he was conducting the business on behalf of A-1. It is only a statement of P.W.1 to the effect that A-3 was present when he visited the shop. The purpose of presence at that time is not specifically stated. In the absence of any such evidence or allegation on this side of the prosecution and when having come with a specific case that A-3 was the proprietor as described in the charge sheet, it is not open to the prosecution at a later stage to say that A-3 was conducting the business on behalf of A-1. Therefore, in view of the above circumstances, when the proprietor of the firm i.e. A-1 has been acquitted and the material on record does not show that A-3 except being present was conducting business at the time of the alleged seizure. Further, the correspondence or replies by A-3 will not in any way fasten him for liability. Therefore, the conviction and sentence imposed by the Courts below suffers from infirmity and the accused are found not guilty of the charges levelled against them by the Courts below and the accused are liable for acquittal. Accordingly, the Criminal Revision Case is allowed and the accused are acquitted from the charges framed against them by the Courts below. The amount of fine, if paid, shall be refunded to the accused persons. ________________________ N.R.L. NAGESWARA RAO, J Date: 14-12-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 261 of 2009 DATE: 14-12-2011 MR