HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1311 OF 2006 DATED: 19.09.2011 BETWEEN: State of A.P., .. Appellant And B.Ramesh Kumar .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1311 OF 2006 JUDGMENT: This criminal appeal is filed against the judgment of acquittal dated 30.03.2005 passed by the IV Additional Sessions Judge, Kurnool in Crl.A.No.155 of 2004. 2. I have heard learned Additional Public Prosecutor representing the State and Sri C. Mohan Reddy, learned counsel appearing for the respondent. 3. The respondent/accused was tried by the Judicial Magistrate of I Class, Kurnool in C.C.No.305 of 2002 for the offences under Section 19(1)(vi) read with Rule 65(18) punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940, was found guilty and was convicted for the said offence and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/-. 4. In the appeal preferred there-against, the learned IV Additional Sessions Judge, Kurnool by his judgment dated 30.03.2005 in Criminal Appeal No.155 of 2004 reversed the order of conviction passed by the learned Magistrate and acquitted the appellant of the above mentioned offence. Aggrieved by the same, the State preferred the present appeal. 5. The respondent is one of the partners of Sri Saijyothi Medical and Fancy Stores at Budhavarpeta, situated opposite to Government General Hospital, Kurnool. PW.2, the Inspector of Police, ACB, on 11.01.2000 made a surprise visit to the shop of the respondent and asked him to produce licence, registration certificate and other relevant documents. Subsequently, it is said that the respondent himself led the Inspector of Police, ACB and staff to the X-ray room of Shantinikethan Diagnostic Centre adjoining the medical shop of the respondent, whereat, the respondent opened steel almirah and produced the certificates asked by the Inspector of Police, ACB. There, it is said that PW.2, Inspector of Police, ACB found some physician medicine samples not for sale. Thereafter, PW.2 drafted proceedings and sealed the almirah in the presence of PWs.3 and 4. Again on 20.01.2000, the Inspector of Police, ACB, secured presence of the Drugs Inspector and also the same mediators. PWs.3 and 4 went to Sri Sai Jyothi Medical and Fancy Stores, Budhavarpeta, Kurnool by which time the almirah which was seized earlier was fund in front of the said medical stores. On the said day under Ex.P.2 proceedings the physician sample medicines were seized. Subsequently, PW.1, Drugs Inspector issued notice under Section 18-A of the Act to the respondent on 21.01.2000 to disclose the name and particulars of the person, who acquired the said physician samples. The respondent submitted a reply on 15.02.2002 stating therein that the seized samples belonged to one Dr M.Rami Reddy. He also enclosed the letter issued by Dr. M.Rami Reddy wherein he stated that he kept the physician samples in the almirah of Shanthinikethan Diagnostic Centre for the use of patients and for distributing them in free medical camp. Dr. M.Rami Reddy also gave a statement before the Drugs Inspector during enquiry on 08.03.2000. However, the Drugs Inspector not being satisfied with the reply submitted by the respondent and the statement given by Dr. M.Rami Reddy filed the complaint against the respondent basing on the statement given by Ramakrishna Rao, PW.4, Manager of Shnthinikethan Diagnostic Centre. 7. In the course of the trial before the learned Magistrate, the prosecution in order to prove the guilt of the respondent, examined PWs.1 to 4 and marked Exs.P.1 to P.9 and MO.1. Ex.D1 was marked on behalf of the respondent. 8. The witnesses, however, deposed to the facts relied upon by the prosecution. The learned Magistrate placing reliance on the evidence of PWs.1 to 4, convicted and sentenced the respondent as mentioned above. But, the said finding of conviction was reversed to one of acquittal by the learned appellate Court, against which the present appeal is preferred by the State. 9. Now the point for determination in this appeal is whether even if the entire evidence of prosecution witnesses is considered to be true, the respondent is liable for punishment under Section 19(1)(vi) read with Rule 65(18) punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940. 10. The crucial aspect which was considered by the learned appellate Court in this case is that initially when PW.2, the Inspector of Police, ACB raided the medical shop of the respondent, the almirah in which the drugs were found was not in the medical store of the respondent, but it was found in the Shanthiniketan Diagnostic Centre in which PW.4 was working. 11. In the instant case, the entire almirah was seized before PWs.3 and 4, the mediators on 11.01.2000 and again on 20.01.2000, Inspector of Police, ACB inspected the shop along with PW.1, Drugs Inspector, by then it is said that the steel almirah was found in front of the shop of the respondent. Even on the first occasion, when the respondent was asked about the licence, registration certificates and the relevant documents relating to the shop, it is said that he led the raiding party to the X-ray room of the Shanthinikethan Diagnostic Centre adjacent to his shop. There was no material placed on record by the prosecution on the aspect as to who in fact shifted the almirah from X-ray room of the Shanthinikethan Diagnostic Centre at the time of second inspection on 20.01.2000. It is borne out from the evidence on record that the respondent is the tenant and there was civil suit pending on the date of incident filed by the landlord against the respondent, who is the tenant of the premises. As rightly pointed out by the learned appellate Court, there is every possibility for the landlord of the premises to tamper the seals of the almirah. 12. Further, Dr. M.Rami Reddy was examined by PW.1,Drugs Inspector during the course of enquiry and he also gave a statement to the effect that the said sample medicines belong to him and that he kept them in the almirah of Shanthinikethan Diagnostic Centre for use of his patients and also for distributing them in the free medical camps. It is not understandable as to why Dr. M. Rami Reddy was not examined as one of its witness by the prosecution. The prosecution also did not assign any convincing reason as to why the statement of Dr. M.Rami Reddy was disbelieved and the basis for filing a complaint against the respondent. Admittedly, no evidence is forthcoming showing sale of sample medicines by the respondent. 13. The version of the respondent is that he did not keep any such almirah in the X-ray room of Shanthiniketan Diagnostic Centre and the said Almirah belongs to Shanthinikethan Diagnostic Centre. The respondent also filed the certified copy of the plaint in O.S.No. 41 of 2003. Dr Kantha Reddy owner of the Diagnostic Centre filed a case against him seeking eviction from the premises from where he is running medical shop. Moreover, as rightly observed by the learned appellate Court, no prudent man will keep the steel almirah which was already seized, in front of his shop expecting the visit of PWs.1 and 2. It is also not understandable as to why in the first instance, the physician sample medicines were not seized by PW.2, the Inspector of Police, ACB. Admittedly, the first inspection was only with a view to find out whether the respondent was selling medicines under any valid licence or not. The physician sample medicines were seized 10 days after the first visit and the prosecution came up with a version that the steel almirah which was seized, was found in front of the medical shop of the respondent. 14. There is heavy burden casts on the prosecution to establish as to who brought the almirah by the date of the inspection of the raiding party on 20.01.2000 in front of the shop of the respondent, but the prosecution failed to discharge the said burden. 15. In MOHD. SHABBIR v STATE OF MAHARASTRA[1] the Apex Court held as follows while dealing with a case under Sections 27 and 18 of the Drugs and Cosmetics Act: “In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale….. Before a person can be liable for prosecution or conviction under Section 27(a)(i)(ii) read with Section 18(c) of the Act it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the article for sale. The possession simplicitor of the articles does not appear to be punishable under any of the provisions of the Act. Therefore, the essential ingredients of Section 27 are not satisfied and the plea of guilty cannot lead the court to convict the appellant.” 16. In the instant case also, absolutely, there is no evidence that the respondent kept the medicines for the purpose of sale. Dr. M.Rami Reddy gave a statement before PW.1, the Drugs Inspector during the course of enquiry that sample medicines belong to him and he kept them in the almaraiah of Shanthinikethan Diagnostic Centre. In fact, there is no legal evidence in the present case warranting conviction of the respondent. The learned appellate Court is thus, perfectly justified in reversing the order of conviction passed by the learned trial Court to one of acquittal. The judgment dated 30.03.2005 passed by the IV Additional Sessions Judge, Kurnool in Crl.A.No.155 of 2004 does not call for any interference in this appeal. 17. In the result, the appeal preferred by the State against the acquittal of the respondent fails and the same is dismissed. __________________ Date: 19.09.2011 R. KANTHA RAO, J Kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1311 OF 2006 DATE: 19.09.2011 [1] AIR 1979 SC 564