Criminal Revision No. 1806 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1806 of 2004 Date of Decision: 16.2.2010 Shyam Lal …Petitioner Versus State of Haryana through District Drugs Inspector, Bhiwani …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arun Nehra, Advocate for the petitioner. Ms. Hemlata Balhara, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Shyam Lal son of Shiv Lal, petitioner, was tried in a complaint instituted by the District Drugs Inspector, Bhiwani. In the complaint, a grievance was made that the petitioner had contravened Sections 18-A and 18-C of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “1940 Act”). The petitioner was running a Clinic under the name and style of Shiv Clinic, Loharu Road, Jui. On 13.8.1993, the District Drugs Inspector visited the premises of the accused. Purshotam Dass son of Sagar Mal, resident of Jui was joined as an independent witness. The District Drugs Inspector visited the Clinic of the petitioner and asked him to show licence or registration certificate for practising allopathic medicines. The petitioner could only produce a registration certificate Criminal Revision No. 1806 of 2004 2 issued by the Board of Ayurvedic and Unani System of Medicine, Bihar but he could not produce any Certificate of Registration issued by the State of Haryana which entitled him to practise medicines as a Registered Medical Practitioner. The petitioner was also not having any Drug Licence valid for the State of Haryana. During the inspection of the Clinic, 12 different types of allopathic medicines were found to be stocked for sale and distribution. The accused/petitioner also failed to disclose particulars regarding name and address from whom the drugs were acquired. Thus, there was a breach of the provisions of Section 18A of the 1940 Act. The trial Court had noticed various drugs which were recovered from the possession of accused. On institution of the complaint, the petitioner was summoned to stand trial and the case was tried as a warrant case. Raj Kumar, District Drugs Inspector, appeared at the time of pre-charge evidence. Lateron, he was examined as PW.1 and he offered himself for cross-examination. Rajinder Kumar, Steno, in Community Health Center, appeared as PW.2, whereas Mange Ram as PW.3. Counsel for the petitioner has very fairly stated that in case of a similarly situated person, Phul Singh v. The State of Haryana 1986 (1) Recent Criminal Reports 532, this Court held that any person holding certificate of registration from Ayurvedic and Unani Chakitsa Parishad, Bihar, fall within the definition of Registered Medical Practitioner and is entitled to possess allopathic medicines. Counsel further contended that this judgment was assailed by the State of Haryana in Criminal Appeal No. 369 of 1994 and their Lordships of Criminal Revision No. 1806 of 2004 3 Hon'ble the Apex Court had observed as under:- “For the last few days, we have heard a batch of civil matters in which sub-clause (iii), clause feel of Rule 2 of the The Drugs and Cosmetics Rules, 1945 has been the subject matters of debate in its widest spectrum. Prima facie conclusions drawn therefrom makes us feel that the judgment of the High Court cannot be faulted with. The respondent does come within the definition of the registered medical practitioner entitled to seen allowance medicines by virtue of his degree and registration in the State of Bihar. We thus find nothing to interfere in this appeal. The appeal is therefore dismissed”. Counsel for the petitioner further stated that, interpretation of law changed lateron and it was held that a person who possesses licence to practise Ayurvedic and Unani Medicine cannot possess allopathic medicines. Furthermore, recognization of Ayurvedic and Unani Chakitsa Parishad, Bihar, was also doubted. Counsel stated that be as it may, it is just by change in interpretation of law, act of the petitioner has become an offence as till the judgment rendered in Phul Singh's case (supra) was in vogue, petitioner was well justified to store and possess the drugs seized from him in his capacity as Registered Medical Practitioner in view of the degree held by him. At this stage, counsel for the petitioner has submitted that in view of the interpretation of law, act of petitioner has become offence. Criminal Revision No. 1806 of 2004 4 Furthermore, when recovery was effected, legally petitioner was well justified to possess drugs in view of the law laid down in Phul Singh's case (supra). Therefore, requisite mens rea is lacking. Thus, a prayer has been made to this Court that petitioner be released on probation taking into consideration that drugs were recovered from the petitioner in the August 1993. The petitioner has already suffered mental pain and agony of protracted trial of about 17 years. Counsel further submits that petitioner has already undergone about two months of his actual sentence. The petitioner was taken into custody on 8.9.2004 and was ordered to be released on bail by this Court on 1.11.2004. In the present case, trial Court has sentenced the petitioner to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- under Section 27(b)(ii) of the 1940 Act. He was further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- for an offence under Section 28 of the 1940 Act. Counsel further submitted that appeal filed by the petitioner was also dismissed. Counsel for the petitioner has further contended that in August 2000 when petitioner was sentenced, one year was the minimum sentence which could be awarded by the trial Court under Section 27(b)(ii) and six months under Section 28 of the 1940 Act. Counsel has placed reliance upon a judgment rendered by Full Bench of this Court in Joginder Singh v. State of Punjab 1980 Punjab Law Reporter 585, wherein it was held that even where minimum sentence is prescribed, there is no bar on releasing the petitioner on probation. A further reliance has been placed on Ishar Dass v. The State of Punjab AIR 1972 Supreme Court 1295 to fortify the above said submission. Further reliance has been placed Criminal Revision No. 1806 of 2004 5 on judgment rendered by Single Bench of this Court in Dr. Hari Chand Verma v. State of Punjab 1990(1) CLJ (C, Cr. & Rev.) 137 wherein it was held as under:- “3. Counsel for the parties were heard. It was submitted on behalf of the petitioner that he was Registered Homeopathic Practitioner and not a previous convict and taking into consideration the nature of drugs recovered from the petitioner, he may be released on probation of good conduct. Reliance in this respect was placed on the Single Bench Authority of this Court in Tej Ram v. The State of Punjab, 1987(2) Chandigarh Law Reporter 377 wherein Tej Ram who was convicted under Section 18(c) read with Section 27 of the Act was granted probation. 4. On behalf of the State, it was submitted that minimum sentence has been provided for commission of offences under the Act and that the fact that the petitioner had no licence either to practice as a Registered Medical Practitioner or to sell medicines, he would be considered as a quack and no benefit of Probation of Offenders Act may be granted. Corti-zone is a harmful medicine to consume without the prescription from a anti-biotic injections which normally should not be used without prescription of a duly qualified doctor. Taking into Criminal Revision No. 1806 of 2004 6 consideration the fact that the petitioner is a Registered Homeopathic Practitioner and would be expected to have knowledge of human psychology and cannot be considered as a mere quack, his age, antecedents, the nature and quantity of drugs recovered from his clinic, as well as the fact that the petitioner has undergone agony of trial for the last more than four years, in my view, it is a fit case to give benefit of Probation of Offenders Act to the petitioner. More fact that minimum sentence is prescribed under the Act cannot be considered as a bar to refuse benefit of Probation of Offenders Act to the petitioner in view of the Single Bench aforecited authority of this Court in Tej Ram's case (supra).” In Dr. Hari Chand Verma's case (supra), this Court relied upon Tej Ram v. The State of Punjab 1987(2) Chandigarh Law Reporter 377 and had released the accused of offence under Section 18(c) read with Section 27 of the 1940 Act on probation. In Dr. Hari Chand Verma's case (supra), accused had undergone agony of trial for more than four years. In the present case, the petitioner has suffered mental pain and agony of protracted trial of 17 years. He has already undergone two months of his actual sentence. Taking these facts into consideration, the petitioner is ordered to be released on probation of good conduct for a period of one year subject to his furnishing personal bonds with two sureties to the satisfaction of the trial Court. The petitioner shall undertake to appear Criminal Revision No. 1806 of 2004 7 and receive the sentence before the Court as and when called upon to do so and be of good behaviour. However, the cost of litigation is assessed as Rs.10,000/-. The same shall be deposited within three months from the receipt of certified copy of the order. In case, the cost is not deposited, benefit of probation shall not accrue to the petitioner. With the observations made above, present revision petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge February 16, 2010 “DK”