APEAL.440-08. - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 440 OF 2008 Siddhu @ Siddharth Ramesh Janmejay ) Age 22 years, Resident of B/15, Sona ) Mahal Apartment, near Prakash Auto ) Show Room, Ambernath Road, Shantinagar ) ..Appellant / Ulhasnagar-3, ) (Presently detained in Kalyan Prison ) (Orig. Accused No.1) Vs. The State of Maharashtra ) (Through Kalwa Police Station.) ) ...Respondent *** Mr. Niranjan Mundargi, for the Appellant. Mrs. M. R. Tidake, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : OCTOBER 20, 2010 ORAL JUDGMENT : 1. Heard the learned counsel appearing on behalf of the appellant and the learned APP for the State. The appellant was convicted by the Special Judge (MCOC Act), Thane, for the offence punishable APEAL.440-08. - 2 - under S. 17-B(a),(d) and (e) of the Drugs & Cosmetics Act, 1940 and sentenced to suffer R.I. for 5 years and fine of Rs.10,000/-, in default to suffer R.I. for three months. He was also convicted for the offence punishable under S. 18 (i) (c) of the Drugs & Cosmetics Act, 1940 and sentenced to suffer R.I. for 3 years and fine of Rs.3,000/-, in default to suffer further R.I. for one month; he was also convicted for the offence punishable under S. 468 of the I. P. Code and sentenced to suffer R.I. for 7 years and fine of Rs.25,000/-, in default to suffer R.I. for six months; and last he was convicted for the offence punishable under S. 3(i) (ii) of the M.C.O.C. Act, 1999 and sentenced to suffer R.I. for 5 years and fine of Rs.5,00,000/-, in default to suffer R.I. for six months. All sentences were directed to run concurrently. 2. The brief facts are as under- . An information was received by P.I. Mr. Suresh Pawar of the Crime Branch Thane on 9-11-2003 that the appellant was about to go through Kalwa-Belapur road in Maruti Zen Car bearing No. MH-04 AW 7213 carrying medicines and bogus invoices (bilti). Accordingly, he called panch witnesses, his colleagues and subordinate staff and arranged trap at that place and about 3.05 p.m. the car was intercepted and the appellant/accused was asked to get down from the car and search was APEAL.440-08. - 3 - taken of the car. During the search some boxes were found on the seat and other boxes were recovered from the dickey. The accused also produced some invoices (bilty) which was in that car in which names of medicines were mentioned. However, the said invoices did not tally with the boxes and articles found in the car. All the medicines found in the car were therefore, seized. The number plates found under the seat were also seized from the car; so also foils, stickers and boxes were also seized. Consequently, the offence punishable under S. 420, 467, 468 and 471 read with S. 34 of the I. P. Code was registered at Kalwa Police Station on the basis of statement made by P.I. Rajendra Jadhao who was a member in the raiding squad. Accused was arrested. 3. During interrogation, the accused agreed to disclose other medicine which was kept by him near the wall adjacent to wall of Quick- Bite Hotel and consequently the boxes containing strips containing tablets, worth Rs.10,78,880/- were recovered. The recovery was made from the accused Jayesh and other boxes containing tablets were recovered. Panchanama was made and accused Jayesh was taken in custody. During interrogation of Jayesh, he disclosed the name of Mukesh and in the result recovery of 23 boxes containing medicines was made from Bharat Pharma shop at Sanpada and Mukesh was arrested. APEAL.440-08. - 4 - Other accused were also arrested during the investigation. The investigating officer discovered that the appellant was involved in 7-8 offences and therefore an application was made for making the provisions of the Maharashtra Control of Organised Crimes Act, 1999 applicable in this case. Sanction accordingly was granted by the Additional Commissioner of Police on 29th January, 2004. The charge- sheet was thereafter filed. The Special Court on the basis of evidence adduced by the prosecution convicted the appellant/accused. 4. The learned counsel appearing on behalf of the appellant submitted that the prosecution has examined in all 18 witnesses. He submitted that PW 2, PW 3 and PW 4 who are the panch witnesses, examined by the prosecution to prove the panchanama of seizure of medicines, have turned hostile. He submitted that therefore, seizure panchanama was not established by examining independent witnesses and the said panchanama was proved by the investigating officer. He submitted that PW 5 and 6 were witnesses, examined to prove case against accused No.2. PW 7 was owner of the Picaso Health Care medicine company. He had identified some of the medicines which were seized by the police from the appellant. Similarly, PW 9 was also an employee of the Picaso Health Care who also identified some of the APEAL.440-08. - 5 - medicines which were seized from the accused and PW 17 was also an employee of Picaso Health Care. He submitted that so far as evidence of PW 10 is concerned, he was examined to prove the case against accused No. 2. PW 8 also turned hostile. He, however, was examined to prove the case against accused No.2. PW 11 is an API, examined to prove the trap panchanama. PW 12 Kishor Karekatte, the Senior PI was examined to prove the two cases which were filed against the appellant. PW 13 Mr. S. S. Chakravarti, the Commissioner of Police Thane was the sanctioning authority which granted sanction under the MCOC Act. PW 15 Suresh Pawar and PW 16 Tanaji Ghadge are the investigating officers in the present case and PW 18 Satyanarayan Kurma is the Material Manager of Medibias Laboratories Pvt. Ltd. who identified the medicine which was seized and stated that the said medicine was spurious and submitted his detailed report about the analysis. 5. The learned counsel appearing on behalf of the appellant submitted that there were several discrepancies in the statement of prosecution witnesses. He submitted that no material was produced by the prosecution to prove the ownership of the vehicle. He then submitted that invoice (Bilti) was also never produced by the prosecution. He submitted that there were discrepancies and improvements made by the APEAL.440-08. - 6 - prosecution witnesses about the raid, conducted in the house. It was further submitted that PW 1 PI Jadhav has admitted in his cross- examination that entry number in the station diary of the complaint was not mentioned and names of panchas were also not mentioned in the said complaint. He then submitted that the prosecution witnesses were unable to tell number of boxes found in the car and also the size of the said boxes. It was then submitted that the sanction accorded by PW 13 was not valid sanction. Since it was accorded without application of mind and without going through the relevant papers. It was submitted that from the evidence of PW 11 – API Hiremath, and PW 15 PI Pawar it can be seen that there was material variance in the evidence on all material aspects, including genuineness of the report (Exh.77). He also submitted that there was delay in sending FIR to the concerned Court. It was then submitted that there was no allegation against the appellant that he had manufactured the said drugs and the original CP and FDA report was also not produced. 6. The learned APP on the other hand, submitted that the trial Court has given cogent reasons for convicting the accused. He submitted that he was caught red-handed on information received by the police and all the medicines were seized from the car in which he was traveling. He APEAL.440-08. - 7 - invited my attention to the finding of the trial Court and submitted that no case is made out to interfere with the finding recorded by the trial Court. 7. I have heard both the learned counsel for the appellant and the learned APP for the State at length. In the present case, prosecution has examined 18 witnesses. The witnesses PW 5, PW 6 and PW 10 have been examined to prove the case against accused Nos. 1 and 2 and therefore, their evidence is not relevant for the purpose of this appeal against the appellant. It is no doubt that PW 2, PW 3 and PW 4 who were panch witnesses in respect of the seizure panchanama, have turned hostile. Similarly, PW 8 has also turned hostile. However, the fact remains that the panchanama has been proved by the investigating officer. The material which was seized from the car of the appellant has been identified by PW 7, PW 9 and PW 17 as the medicines which belonged to Picaso Health Care medicine Company. PW 18 Satyanarayan Kurma has stated in his evidence that at the relevant time he was attached to Medibios Laboratories Pvt. Ltd. Mumbai as Materials Manager and that he has visited the Crime Branch Kalwa Police Station, Thane on 9-11-2003 along with General Manager Deepak Wahi. The seized drugs were shown to this witness. He has further stated that he APEAL.440-08. - 8 - checked the goods and on physical inspection he found that seized drugs pertaining to Vibazine DT cartons were spurious/duplicate. The said drugs were given to them for detailed analysis and accordingly the quality control person of their laboratory did the job of analysis and they gave report that the sample handed over by the police appeared to be manufactured by their company. In respect of the packing material namely bottle labels, inner cartons and outer cartons, the report was given that the packing material was spurious in nature and procured by the party for the purpose of duplicating their product. So far as the report in respect of the tablets in the unlabelled sealed bottles is concerned, remarks were that tablets were substandard and they did not confirm to the test requirements when compared to their specifications. They are also different in the the colour than the colour used by the Company. He has stated that tablets seized by the police were fake and spurious in nature, procured by accused for the purpose of duplicating, copying their prestigious products. So, this witness has been cross-examined at length and it has been suggested that he had not personally supervised the report given by their analyst. The fact remains that this witness has identified the material which was seized and has given his opinion that said drugs and tablets were spurious. In my view, there is no reason to APEAL.440-08. - 9 - discard the evidence all this evidence or the same can be doubted. PW 18 therefore, has established beyond doubt that the tablets and the material which was seized from the car, which was being driven by the appellant, was spurious/duplicate/ sub-standard. PW 7, PW 9 and PW 17 who are associated with Picaso Health Care medicines also have established that the drugs and the tablets which were seized from the appellant and other accused was spurious and an attempt was made by the appellant to pass of these goods by showing as if they are manufactured by Picaso Health Care. 8. PW 15 and 16 are the investigating officers who have proved about the information, received and the raid which was conducted. They have also established the reports tendered by the Director, Quality Control Pfizer Company, the analysis report from Brand owner of the said medicines ,Medibios Laboratory Pvt. Ltd., the letter dated 12-11-2003 issued by the Jt. Commissioner, Food and Drugs Dept. He also stated that during investigation it was revealed that these types of medicines were supplied to Delhi and Bihar State and he had recorded statements of the concerned witnesses. He has also stated that during investigation it was revealed that some of the medicines which was seized from the Maruti car were pertaining to the offence of dacoity APEAL.440-08. - 10 - which was already registered at Daman Police Station. From the evidence of PW 15 and PW 16, therefore, it has been established that the prosecution had investigated the case properly and therefore, in my view, the trial Court was justified in convicting the appellant for the commission of the said offences. Therefore, conviction of the application for the aforesaid offences is confirmed. 9. So far as question of sentence is concerned, the learned counsel for the appellant submitted that the appellant was arrested on 9-11-2003 and has therefore, undergone almost 7 years of sentence. He submitted that the appellant has not paid the fine amount. He submitted that since the appellant has undergone the entire sentence awarded to him, in default sentence may be reduced and the appellant may be released on the sentence which he has already undergone. It is not disputed that the appellant is in jail since 9-11-2003 and therefore, has undergone sentence of imprisonment for 6 years, 11 months and 10 days, and he will complete 7 years on 9-11-2010. The appellant is entitled to get remission of sentence for the offence punishable under the Maharashtra Control of Organised Criminal Act, 1999, and therefore, period of remission is taken into consideration. The appellant has already undergone the entire sentence which is awarded by the Special Judge. APEAL.440-08. - 11 - The default sentence awarded by the Special Court for non payment of fine, in my view, therefore, will have to be set aside and the appellant will have to be released on the sentence on which he has already undergone. The appeal is therefore, partly allowed. The conviction of the appellant awarded by the Special Judge (MCOC Act), Thane, is confirmed. The sentence of the appellant, however, is reduced to a sentence which he has already undergone. The appellant, therefore, be released forth with unless he is required in any other case. . The appeal is accordingly partly allowed in aforesaid terms. [ V. M. KANADE J.]