8IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No. 700 of 2008 Between: The Drugs Inspector, Nellore. ... Appellant AND Sri Ponnuru Venkata Ramanaiah and another. ... Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No. 700 OF 2008 JUDGMENT: The Criminal appeal is directed against the acquittal of both the accused in S.C.No.81 of 1999 on the file of the Principal Assistant Sessions Judge, Nellore in C.A.No.97 of 2004 by the Court of Session, Nellore by judgment, dated 26.07.2006 reversing the conviction of both the accused for the offences punishable under Section 27 of the Drugs & Cosmetics Act, 1940 read with the Drugs and Cosmetics Rules 1945. 2. The Drugs Inspector of Nellore prosecuted both the accused complaining that the first accused is the Managing Partner of the second accused shop and through the decoy customer, one Vial of Anti Rabies Vaccine and one disposable syringe were purchased from the shop on 16.05.1995 at about 11:00 AM. The report preceding the purchase was prepared at the office of the complainant and after purchase, the Drugs Inspector along with two mediators, C.Seshaiah and N.Venkateswara Rao, found the first accused at the cash counter and the decoy customer D. Sai Prasada Rao with the articles purchased and balance of cash after purchase. The first accused admitted that no cash bill was issued and on search of the shop, 5 vials of said vaccine was found and the relevant properties were listed and seized under the mediators report and the first accused claimed to have purchased the said vaccine from G.Subba Rao without any bill. The seizure was claimed to have been intimated to the concerned Magistrate, with whom the property was deposited and after completing the necessary formalities, it was found that the seized drug was the subject of another seizure in which the Government Analyst declared the samples sent as not of standard quality. Therefore, the same sample was not again sent for analysis and on verification, the Drugs Inspector also found that the drug in question was not manufactured by the Institute of Preventive Medicine, Hyderabad. The Drugs Inspector also obtained medical opinion, which showed that if it is administered to a patient, will have a fatal effect. The accused 1 and 2 were therefore, considered to have violated the relevant provisions of the Drugs and Cosmetics Act, in respect of which the complaint was filed. 3. On the trial Court taking cognizance and the accused appearing before the Court, the copies of the documents were furnished to them and the relevant charges under various sub-sections of Section 27 of the Drugs and Cosmetics Act, 1940 read with Rule 65 of the Drugs and Cosmetics Rules, 1945 were framed against the accused, for which the accused pleaded not guilty. The complainant examined P.Ws.1 to 5 and marked Exs.P.1 to P.20 and M.Os.1 to 6 during trial. The accused denied the incriminating circumstances appearing in the evidence when they were examined under Section 313 of the Code of Criminal Procedure, 1973 and no defence evidence was adduced. 4. The trial Court rendered its judgment, dated 09.08.2004 referring to the background and evidence in detail and opined that the evidence of P.Ws.1 to 5 categorically showed that on 16.05.1995, P.W.1 seized M.Os.5 and 6 from the shop of the accused and recorded Ex.P.3 statement of the first accused. It also found that the evidence of P.W.3 showed that the vaccine manufactured by the Institute of Preventive Medicine was not sold to medical shops, being used only in Government Hospitals or institutions under the control of the Institute of Preventive Medicine. Even the labels found on the vaccine seized by P.W.1 were found to be xerox copies according to the evidence of P.W.3 and the trial Court therefore, concluded, with particular reference to Ex.P.11 showing a sample to have been tested and declared as sub-standard quality, that no useful purpose would have been served by testing the samples seized from the accused all over again. The trial Court, therefore, found both the accused guilty, the first accused personally and also as representing the second accused as its Managing Partner, and convicted them. After hearing them on the question of sentence, the trial Court imposed various sentences of imprisonment and fine for the different offences with default sentences in case of non-payment of fine and directed all the sentences to run concurrently, while giving set off under Section 428 of the Code Criminal Procedure, 1973. 5. In appeal against the same in C.A.No.97 of 2004, the Court of Session considered the proof of alleged offences beyond reasonable doubt and the legality and sustainability of the conviction and sentences. It opined that the prosecution has to mandatorily prove that the drug was spurious or misbranded or not the product of the projected manufacturer. The appellate Court found that the provisions of Section 23 of the Drugs & Cosmetics Act, 1940 are mandatory in nature and P.W.1 did not divide the drug purchased from the accused’s shop into several portions and did not give any part of the sample to the accused. The sample procured from the accused was found to be not sealed and the signatures of the persons, in whose presence the drug was seized and purchased, were not obtained. The drug sent for analysis from the same batch being found spurious was held not to help the prosecution in the absence of any intimation in writing from the accused that the drug was purchased from V.Subba Rao or when any property was seized from the shop of V.Subba Rao or was sent for analysis or how the said report can be linked with the seizure from the shop of the accused. The appellate Court also found that the identity of the samples was not established and the prosecution of V.Subba Rao, being used for the prosecution of the accused, was not acceptable. The evidence of P.W.3 was considered to be not enabling to state that the drug was spurious. Therefore, the appellate Court set aside the judgment of the trial Court and reversed the conviction and sentences and acquitted the accused while directing refund of any fine paid. 6. The Drugs Inspector preferred this appeal through the learned Public Prosecutor contending that the well considered judgment of the trial Court could not have been reversed by the appellate Court when the ingredients to constitute the offences have been made out by the prosecution. The inspiring evidence of the official P.W.1 should have been believed, even if P.W.2 did not support the prosecution case. The evidence of P.Ws.2 to 5 should have led to a conviction and hence, it is desired that the acquittal by the appellate Court be reversed. 7. Heard Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor for the appellant and Sri P.Ravi Shankar, learned counsel for the respondent/accused. 8. The point for consideration is whether the acquittal of the accused by the appellate Court is susceptible for interference. 9. The Drugs Inspector as P.W.1 admitted that he did not send 5 vials seized from the shop of the accused for chemical analysis stating that the drug seized was not sufficient for the purpose of analysis and same batch drug being found to be spurious earlier was stated to be the basis for prosecuting the accused by P.W.1 and it was admitted that the analyst report filed in this case related to the samples seized from V.Subba Rao. That there is identity of substances between the samples seized from V.Subba Rao and the sample seized from the shop of the accused cannot be considered to be established beyond any doubt by the claims of P.W.1 as what is attempted to be fastened to the accused is the strict criminal liability irrespective of any mens rea. For proof of such a stringent offence, at least the identity of the substances in both the cases should have been established through the same scientific evidence. P.W.2 did not support the prosecution version about the seizure at all when he claimed the Drugs Inspector to have obtained his signature on five blank white papers and asserted that no panchanama was prepared at the shop of the accused. The other mediator was given up by the prosecution and even the Director of the Institute of Preventive Medicine as P.W.3 was speaking about the opinion referred to by the Drugs Inspector on the samples seized from V.Subba Rao and not the accused and even otherwise, she admitted that the Drugs Inspector did not furnish the report of the Central Analyst along with his letter Ex.P.9 and when the same was given to show whether the drug is spurious. P.W.4 was speaking about the fatal effect of a spurious drug being administered to a patient and he could not say whether Ex.P.11 with reference to which he was deposing does not relate to this case. In fact he admitted that basing on Ex.P.11, he gave evidence in the earlier case. P.W.5, who was supposed to be a decoy customer used for effecting the seizure does not remember the contents of Ex.P.2 without going through them and his version though apparently in tune broadly with the allegations of the Drugs Inspector, cannot be the sole basis for any conclusion in the light of the hostility of the mediator P.W.2 and non-examination of another mediator for the proceedings. At any rate, the evidence does not indicate strict compliance with the mandatory statutory formalities of the Drugs & Cosmetics Act, 1940 in effecting the seizure. Without repeating the required statutory formalities all over again, the conclusion of the Court of Session about non-compliance with the said formalities can be straightway accepted. The Court of Session made a positive note of non-division of the drug into several portions, one of which should have been given to the first accused, absence of seal on the sample purchased from the shop of the accused, the absence of signatures of the persons in whose presence allegedly the seizure or the purchase was made, etc. When the drugs seized from the shop of the accused were not the subject of any analysis in full or in samples and when the necessary statutory formalities were not even stated to have been complied with leave alone proved and when the basis of the prosecution was the opinion on the analysis of samples taken from some other shop, the substance in both the cases being not proved to be identical, the acquittal of the accused by the Court of Session cannot be found fault with and the Criminal Appeal fails. 10. Accordingly, the Criminal Appeal is dismissed. ________________________ G.BHAVANI PRASAD, J NOVEMBER 24, 2011 YVL