THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE NO.1545 OF 2004 Date: 21st July, 2011 Between: P.Siva Kumari and another …..Petitioners And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE NO.1545 OF 2004 ORDER: This revision is directed against conviction and sentence imposed by the Judgment made in Crl.A.No.119 of 2002 on the file of the Court of VIII Additional Sessions Judge (F.T.C.), Guntur, dated 7-9-2004 confirming conviction and sentence imposed in C.C.No.95 of 1997, dated 6-3-2002 on the file of the Court of the Additional Munsif Magistrate, Sattenapalli for the offences punishable under Sections 27(c), 27(d) and 28 of the Drugs and Cosmetics Act, 1940 (for short, the Act) against the petitioners/A-1 and A-2 on the ground that A-1 was found in the possession of the drug in question whereas the manufacturing unit of it was not in existence. 2. It is the contention of learned counsel for the petitioners that the drug in question was not spurious and was of standard quality and in fact it was not at all a drug and it does not come within the ambit of the Act and the charge sheet was laid in respect of the alleged offences only on the ground that the corresponding manufacturing unit was not existing. Further, P.W.1- concerned Drugs Inspector clearly admitted that he did not make any enquiry to find out the very existence of the manufacturing company while ascertaining that a notice was sent to the address given for the manufacturing company, but it was returned with an endorsement “left” by reason which it was concluded that such a manufacturing company was not in existence, but in fact those circumstances are not sufficient to come to that conclusion, and therefore, the prosecution failed to establish the charges and further whereas the petitioner No.1 is a lady and the proprietrix of M/s.Venkateswara Medical Distributors and the petitioner No.2 is just her husband and therefore, in any case, the petitioner No.2 cannot be held to be guilty of committing the said offences. Further it is the contention of learned counsel for the petitioners that the courts below failed to appreciate the matter properly and erred in convicting and sentencing the petitioners and therefore, the conviction and sentence imposed against them are liable to be set aside. 3. Consequently, the points that arise for determination are: (1) Whether the prosecution placed sufficient evidence to the effect that there was no such manufacturing unit and as such the drug in questions happened to be a spurious one? (2) Whether the drug comes under the purview of Section 17(B) of the Act? and (3) Whether the Courts below properly examined the matter and arrived at correct conclusion and the conviction and sentence imposed are tenable on facts. 4. Section 27 of the Act, reads as follows: 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) any drug deemed to be adulterated under section 17A or spurious under section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860 ), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees; (b) any drug— (i) deemed to be adulterated under section 17A, but not being a drug referred to in clause (a), or (ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees: 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 and of fine of less than five thousand rupees; (c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees: 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 three years but not less than one year; (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 thereunder, 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. 5. Section 28 of the Act reads as follows: [28. Penalty for non- disclosure of the name of the manufacturer, etc:- Whoever contravenes the provisions of section 18A 2[ or section 24] shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to 2[ one thousand rupees] or with both.] 6. It is very pertinent to note here that as per the records, the drugs in question were not adulterated in any way. The case mainly rests upon as to whether the said manufacturing company i.e. M/s.Hamac Pharmaceuticals, Madras was in existence or not. Therefore, there is no dispute about the genuineness of the drug. So unless it is proved that such company was not in existence the petitioners got no criminal liability of the charges levelled. Admittedly the so called drug contains a label of the so called manufacturing company whereas it is also alleged that the petitioner No.1 failed to give proper address of the manufacturing company. When admittedly the label contains the address of such manufacturing company, the same is suffice unless it is proved that deliberately a false address of it was given. Under those circumstances, it is the duty of the Drugs Inspector to make necessary enquiries and find out whether such company was in existence or not. Further the fact that he sent a letter to the address given on the label and it was returned with an endorsement “left” it is not sufficient to hold that such manufacturing company was not in existence. It is quiet surprising as to why he did not take necessary measures to ascertain the existence of the company by going to Madras or by any other means. Therefore, the prosecution utterly failed to establish that such manufacturing company was not in existence. It is to be reiterated that the prosecution has to establish the guilt of the accused with reference to the charge framed beyond reasonable doubt. 7. Therefore, for the foregoing reasons I have no hesitation to hold that the petitioners are not liable for the charges framed against them. Further in fact when the petitioner No.2 is only the husband of petitioner No.1 and has nothing to do with the issue, he would not have been impleaded as the accused in the case. 8. The Courts below failed to appreciate the matter properly and erred in coming to the correct conclusion and hence the conviction and sentence imposed against the petitioners/accused are to be set aside. 9. In the result, the revision case is allowed setting aside the conviction and sentence imposed against them. _____________________________________ JUSTICE G.KRISHNA MOHAN REDDY 21st July, 2011 Tjmr THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE NO.1545 OF 2004 DATE: 21st July, 2011 TJMR