Criminal Revision No.1903 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1903 of 2003 Date of Decision 13.10.2010 Jagan Nath Huria ...... Petitioner VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Ashit Malik, Advocate, for the petitioner. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: The trial Court vide its judgment dated 16.02.2002, convicted and sentenced the petitioner-accused (herein referred as 'the accused') to undergo rigorous imprisonment for a period of three years under Section 22 (3) of the Drugs & Cosmetics Act, 1940 (for brevity 'the Act') and rigorous imprisonment for a period of one year under Section 28 of the Act. The Appellate Court dismissed his appeal. Factual matrix of the case is that on 04.01.1994, the complainant Y.K.Gupta, District Drugs Inspector, Panipat, filed a complaint in the Court alleging that on 08.10.1993, he alongwith Dr.V.K.Malhotra, District Health Officer, Panipat, after associating Gulzar Ahmed, an independent witness, went to the premises of the accused and asked him to show his registration certificate for drugs in allopathic medicines to which he replied that he is having an RMP licence from Bihar and he also rebuffed the raiding party saying that he was being harassed for the last 10- Criminal Revision No.1903 of 2003 2 15 years. The complainant also noticed a lot of allopathic medicines stocked at the rear portion of the shop and a number of allopathic medicines were displayed for sale on the table and the side racks. Since the accused obstructed the complainant from seizing allopathic drugs and also did not cooperate wilfully with the raiding party about which he informed the Civil Surgeon, Panipat and State Drugs Controller, Haryana, in writing and ultimately lodged the complaint against him under Section 18(c) punishable under Sections 22(3), 27 (b)(ii) and 28 of the Act. After recording the preliminary evidence, the trial Court summoned the accused. On his appearance and after recording the pre- charge evidence, he was charged for the offences under Sections 22(3), 27 (b)(ii) and 28 of the Act to which he pleaded not guilty and opted to contest. During evidence, the complainant examined himself as PW2 and also examined V.K.Malhotra as PW1. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication in the case. In defence, he produced the copy of his registration certificate Ex.D1. The trial Court, while acquitting him of the charges under Section 18 (c) punishable under Section 27 (b)(ii) of the Act, convicted and sentenced him under Sections 22 (3) and 28 of the Act. His appeal also failed. It is noticed that the complainant or the State did not prefer the appeal qua his acquittal under Section 18 (c) punishable under Section 27 (b)(ii) of the Act. Counsel for the petitioner while assailing the judgment of conviction, has thrown mud over the conduct of Sh.Y.K.Gupta complainant, stating that he has filed the belated false complaint for reasons best known Criminal Revision No.1903 of 2003 3 to him. Actually, nothing happened and the complainant used to make demand monthly from him to which he refused, therefore, this false complaint has been lodged. Spot memo does not indicate the manner in which the accused obstructed the Drugs Inspector from performing his duties. No such letter has been produced which may have been written by him to the Civil Surgeon, Panipat or the State Drugs Controller, Haryana, containing the information regarding obstructing him from performing his duties or not showing any document to him. Before I lay my hands to determine as to if the accused has committed the offence under Sections 22 (3) and 28 of the Act, it would be essential to reproduce the aforesaid Section 22(3), which reads as under:- If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter, ["or refuses to produce any record, register or other document when so required under clause (cca) of sub-section (1),"( he shall be punishable with imprisonment which may extend to three years, or with fine, or with both.) Here Clause CCA of Sub Section (1) of Section 22 also needs to be reproduced, which is as under: Powers of Inspectors—(1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed, — (a) inspect, -- (i) any premises wherein any drug or cosmetic is being manufactured and the means employed for standardising and testing the drug or cosmetic; (ii) any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed ; Criminal Revision No.1903 of 2003 4 (b) take samples of any drug or cosmetic,-- (i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed; (ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee; (c) at all reasonable times, with such assistance, if any, as he considers necessary,-- (i) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or (ii) enter and search any place in which he has reason to believe an offence under this Chapter has been, or is being committed; or (iii) stop and search any vehicle, vessel, or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been ,or is being, committed or which may be employed for the commission of such offence;] (cc) examine any record, register, document or any other material object found [with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the Rules made thereunder;] (cca) “require any person to produce any record, register, or Criminal Revision No.1903 of 2003 5 other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;"] (d) exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder. (2) The provisions of the code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under [section 94] of the said Code.” It would be necessary to quote Section 94 of the Code of Criminal Procedure 1973. Relevant part of Section 94 Cr.P.C. reads as under. “Search of place suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable- (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety.” From the bare reading of the aforesaid three provisions of law, Criminal Revision No.1903 of 2003 6 it transpires that as per Section 22 of the Act, Drugs Inspector was required to issue a notice to produce any record, register or other document, as desired by him and in case of refusal he was required to prepare the spot memo. Ex.PB, as prepared in this case, mention as to what was demanded by him and what sort of refusal the accused had made. In case, the refusal is made then Section 22 (3) itself provides a remedy. The sub-Section (3) of Section 22 of the Act refers to provide that in case of refusal to facilitate search, the Drugs Inspector, with the aid of search warrants got issued under Section 94 of the Code of Criminal Procedure, could search the premises. But in the instant case, he even did not prepare the spot memo properly in order to highlight the alleged conduct of the accused. I have gone through the spot memo Ex.PB, prepared by him in the presence of Gulzar Ahmed, eye witness. The relevant extract of the said memo reads as under:- “Sh.Jagan Nath Hurria son of Sh.Nand Lal, Janta Hospital, Kutani Road, Panipat, is available at his clinic. He has kept allopathic drugs in racks, on his table alongwith B.P. apparatus and injections. He has no registration certificate of Haryana or drug licence. As told by him, he is registered from Bihar (Butat) but at present the certificate is not with him. He has said that he has been in Government service for a long time. He has obstructed the drugs inspector and Distt. Health Officer from taking the necessary legal action under the Drugs & Cosmetics Act, 1940. So no alternative is left except that it is a fit case of wilful obstruction in duty as per Section 22(3) of the Drugs & Cosmetics Act. He has refused to sign any paper. On perusal of the said notice, it is observed that the Drugs Inspector has not mentioned:- (i) As to how he showed his intention to take possession of any drug or cosmetic; (ii) he has not mentioned as to which register or record he had sought from the accused to produce and what sort Criminal Revision No.1903 of 2003 7 of refusal, he had made; (iii) though, he has mentioned that the accused obstructed from taking legal action under the Act but no document in the shape of notice requiring him to produce any document or any medicines for sample has been proved on record and (iv) according to him, drugs were lying displayed on the racks then there was no difficulty for him to mention such drugs for taking action. Even Gulzar Ahmed, who was associated as independent witness, has not been examined in order to prove that such notice was issued by Y.K.Gupta at the spot. Though, the complainant Y.K.Gupta in his complaint, which was filed six months after the occurrence, has disclosed that he had informed about the obstruction of duty in writing to the Civil Surgeon, Panipat and State Drugs Controller, Haryana, Chandigarh yet no such document has been proved on the record revealing that he informed about the obstruction in his duties by the accused. Had he immediately sent information about the act of the accused then some truth could be observed but in the absence of proof of sending such information in writing as mentioned by him in the complaint, it would be difficult to conclude if such information was sent by him. The conduct of the complainant is not above board. He kept waiting for six months and filed a complaint after such long delay. Not only this, even complainant Y.K.Gupta has not reiterated the facts in his substantive statement (as mentioned by him in the complaint). Though, in the complaint, he has stated that the accused had threatened them that he would call the terrorist from Punjab and obstruct him from seizing the allopathic drugs yet this fact was not mentioned by him in the spot memo. Spot memo also does not reveal that the accused did not allow them to take samples. Criminal Revision No.1903 of 2003 8 In any case, in his statement, he has not stated that as to what sort of medicines he had seen in the clinic. Even he has not given the name of any medicines which he had seen. Though he has stated that the accused had threatened them saying that he would call the terrorists from Punjab yet Y.K.Gupta (PW1) has not supported this fact by saying so in his statement. He did not even utter a word about such threat. He has only stated that the accused did not allow them to seize the drugs or take the sample. Y.K.Gupta (PW1) has also admitted that he does not know as to what type of drugs were lying in the shop, what was their quality and quantity. If they had not known about the category, quality and mark of the drugs then how could they say that the accused was in possession of allopathic drugs. Again the conduct of Y.K.Gupta is condemnable as he did not associate any independent witness rather Gulzar Ahmed, so joined by him, is a stock witness. Complainant admits that Gulzar Ahmed, an independent witness, was known to him since earlier and he was cited as a witness in many cases. Thus, the conduct of the complainant cannot be said to be above-board. So far as Section 28 of the Act is concerned, that would have come into play only if the accused had contravened the provisions of Section 18(a) or Section 24 of the Act but no such allegations have been levelled against him. The name of the manufacturer was required to be disclosed only if the Drugs Inspector would have come in possession of any allopathic drug but the case of the complainant himself is that he did not take any drug into possession, as such the conviction, as recorded by both the Courts below under Section 28 of the Act is also unwarranted. Having scrutinized the impugned judgment, it transpires that Criminal Revision No.1903 of 2003 9 the Courts below did not take note of the aforesaid aspects of the case and the conviction was recorded on the basis of misreading and misappreciation of evidence and the legal provisions were also not properly interpreted, as such, the said judgment is rendered perverse, warranting interference by this Court. Before parting with the judgment, the matter requires to be brought to the notice of the Secretary, Health, Haryana for probing the conduct of the complainant Y.K.Gupta, Drugs Inspector as he did not comply any provisions of law before effecting the search of the premises and taking of the samples. He also did not take aid of Section 94 Cr.P.C. for effecting the necessary search and seizure of the articles in case the accused was not willing and had refused to cooperate him in taking the samples or seizing the necessary documents and even he did not take the help of the police. He did not take up the matter to the police on making refusal, resistance and obstruction allegedly made by the accused in performing the duties by him. He appears to have withheld the necessary evidence which he could produce to prove the allegations as mentioned in the complaint. In the wake of aforesaid discussion, I accept the present petition, set aside the impugned judgment(s), acquit the accused of the charges framed against him. Bail bond/surety bond, furnished by him, stand discharged. He is directed to be set at liberty forthwith. Fine, if any deposited, be refunded. Copy of the judgment be sent to Secretary, Health Haryana for further necessary action. (A.N.Jindal) Judge 13.10.2010 mamta-II