THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No.86 OF 2009 ORDER: The revision petitioner herein is appellant in Criminal Appeal No.150 of 2006 on the ﬁle of the X Additional District and Sessions Judge (Fast Track Court), Guntur at Narasaraopet and accused No.1 in Calendar Case No.181 of 2002 on the ﬁle of the I Additional Munsif Magistrate, Narasaraopet. Hereinafter, the revision petitioner is referred as accused. 2. The accused was convicted for the oﬀence punishable under Section 27(c) of the Drugs and Cosmetics Act, 1940 (for short, ‘the Act’) for violation of Section 18(a)(i) read with 17B (e) of the Act and sentenced to undergo simple imprisonment for a period of three years and to pay a ﬁne of Rs.5,000/-, in default of payment of ﬁne, simple imprisonment for two months. Further he is convicted for the oﬀence punishable under Section under Section 27(d) of the Act for violation of Section 18(a)(vi) r/w 16 of the Act and sentenced to undergo simple imprisonment for a period of one year. Further he is convicted for the oﬀence under Section 28 of the Act for violation of Section 18-A and sentenced to undergo simple imprisonment for six months, which was conﬁrmed in appeal in Crl.A.No.150 of 2006 on the ﬁle of the X Additional District and Sessions Judge (Fast Track Court), Guntur at Narasaraopet. 3. The case of the prosecution, in brief, is that on 29.05.1999 PW.1 along with PW.2 proceeded to the shop of A.1 and during the inspection it was noticed that A.1 has sold Bidanzen Forte tablets, Batch No.BFM 206 said to have been manufactured by M/s Biddle Sawyer Limited, Mumbai. Thereafter, they proceeded to the shop of A.2 and noticed A.2 and A.3 present there and doing business and the tablets were said to have been sold by A.1 to them and they sold the same to PW.8. Thereafter, they went to the shop of PW.8 and they also noticed the tablets and the samples were collected for analysis from the premises of PW.8 and on 31.05.1999 they were sent for analysis. On 27.08.1999 A.1 produced two bill books and two purchase bills said to have been issued by S.V.R. Medical Agencies, Karimnagar bearing bill Nos.213 and 215, dated 05.03.1999. In order to verify the genuineness of those bills, the authorities proceeded to S.V.R. Medical Agencies, but they could not collect any evidence to show the manufacture or sale of the above drugs. Thereafter, a detailed report was prepared by PW.3. The report was received from the Analyst on 15.02.2000 that the tablets were not of standard quality and thereafter, PW.1 issued notice to PW.8 to disclose the source of particulars under Section 18-A of the Act and he replied that he purchased from A.2 and A.3 and thereafter, when A.2 was questioned he did not give any reply as to his source. During the course of investigation, PW.1 along with PW.5 visited Mumbai and veriﬁed from M/s Biddle Sawyer Limited and they said that the seized product was not manufactured by them and therefore, it is a spurious one. On a further correspondence by PW.1 with the Drug Inspector at Karimnagar, he came to know that the purchase invoice Nos.213 and 215, dated 05.03.1999, which were said to have been issued by S.V.R. Medical Agencies at Karimnagar, were not issued by them and the books were not found as per the report of PW.3. Thereafter, the prosecution has laid charge sheet against accused Nos.1 to 3. 4. During the trial, on behalf of the prosecution, PWs.1 to 8 were examined and marked Exs.P.1 to P.55 and M.Os.1 to 3. After considering the evidence on record, the learned Magistrate acquitted A.2 and A.3 and convicted the revision petitioner herein, which was conﬁrmed in the appeal. Aggrieved by the said conviction and sentence the present revision is filed. 5. The points for consideration are: 1) Whether accused No.1 is the manufacturer of the spurious drugs and liable for punishment? 2) Whether the A.1 failed to prove the source of the manufacturer and was in possession of the spurious drugs? 3) Whether the conviction and sentence imposed by the Courts below is legal and sustainable? 6. POINTS: So far as the factum of PW.1 visiting the shop of A.1 and A.1 selling the disputed medicines to A.2 and A.3 and they in turn selling the same to PW.8 is not seriously disputed in the cross-examination of the witnesses. Therefore, the property that was seized was the medicine, which was supplied by A.1 to the above persons. The fact that the tablets were said to have been sub-standard and spurious also cannot be disputed in view of the Analyst Report Ex.P.18. 7. The learned counsel for the revision petitioner strongly contends that the conviction of the revision petitioner for violation of Section 18(a)(i) read with 17-B(e) of the Act punishable under Section 27(c) of the Act is not sustainable since there is no material about the fact that he is the manufacturer of the above drug. According to him, even assuming to be that he has given false information about the S.V.R. Medical Agencies being the supplier of the disputed medicine, still it is the duty of the prosecution to prove that the drug was manufactured by the revision petitioner and in this case there being no material evidence that he was the manufacturer, the conviction is not valid. He relied upon the Division Bench decision reported in Perumalla Subba Rao Vs. State of Andhra Pradesh[1], where-under this Court has considered the scope of Section 18 of the Act and found that Section 18(a) of the Act is applicable only in cases of manufactures of the medicine. In this case even the evidence of PW.1 does not show that the revision petitioner is the manufacturer of the said drug. Therefore, consequently, the conviction under Section 27(c) of the Act for violation of Sections 18(a)(i) read with 17B of the Act is to be set aside. 8. So far as the sale of the spurious drugs is concerned, it is not in dispute that the Analyst Report was furnished to A.2 and A.3. In the cross-examination, there is not of much dispute with regard to the opinion of the analyst and at any rate, it is the conclusive one. 9. The learned counsel for the revision petitioner contends that the copy of the Analyst Report was not supplied to the revision petitioner and consequently the conviction for being in possession of spurious drug cannot be accepted. In fact, under Section 23(4) of the Act whenever a sample is drawn by the Drug Inspector, he has to divide it into three parts and he shall give one of the samples to the person from whom the sample is taken. Evidently, in this case, sample was not taken from the revision petitioner. The 3rd sample has to be sent to the manufacturer under Section 18-A of the Act if the particulars are furnished. In fact, according to the case of the prosecution, it was not immediately disclosed by A.1 that the source of the tablets, which is sold to other accused were purchased from S.V.R. Medicals at Karimnagar, and it was only after a delay of two months the bills are said to have been furnished. Therefore, in view of the above circumstances, there cannot be said to be any violation of non-supply of the 3rd sample to the manufacturer. Evidently, the S.V.R. Medical Agencies from whom the revision petitioner claims to have purchased is not an accused before the Court and he is not being charged for manufacturer of the said product. Therefore, the petitioner cannot contend that there is violation of Section 23(4) of the Act. 10. So far as the punishment under Section 18-A of the Act is concerned, in fact is the bounden duty of the person to furnish the particulars of the name of the manufacturer if the person who sold the drug or has been in possession is not the manufacturer by himself. Therefore, in this case when, evidently, it is not the case of the prosecution or the claim of the revision petitioner that he is the manufacturer, it is for the revision petitioner to furnish the particulars of the manufacturers. In fact, in order to get over this burden the petitioner claims to have furnished two bills said to have been issued by S.V.R. Medical Agencies at Karimnagar and pleads that he has purchased the same without knowledge that they are spurious drugs. This fact was veriﬁed by the Drug Inspector and S.V.R. Medical Agency has been searched and there are said to be bill books of the year, 1998 and the bill books pertaining to the period of the bill Nos.213 and 215, dated 05.03.1999 are not available and therefore, according to the prosecution case the belated reliance of these bills by the revision petitioner is nothing but an attempt to over claim his liability. 11. The learned counsel for the revision petitioner contends that under Section 19(3) of the Act, the burden has been discharged by ﬁling these documents and it is for the prosecution to have examined the partners of S.V.R. Medical Agencies and the failure to do so is a beneﬁt, which has to be extended to the revision petitioner. In this connection, one fact that has to be taken into consideration is that PW.3, who was the Drug Inspector at Karimnagar, has inspected the business premises of S.V.R. Medical Agencies and he did not ﬁnd the bill books and the agency also claimed that they are not the manufacturers of the said drugs. In such circumstances, when the documents relied on by the petitioner are said to be not existing, it is the burden on the petitioner to have examined the Medical Agencies. If the books are available, there will be a presumption about the correctness or incorrectness because when once the Inspection Report prepared by PWs.1 and 3 clearly goes to show that the bills pertaining to the year, 1999 are not available, it cannot be taken as a truthful version of the petitioner entitling him for beneﬁt of doubt. Therefore, evidently, a fact has been proved that the books relating to Bill Nos.213 and 215 relied on by the petitioner are not issued by S.V.R. Agencies and they have no bill books pertaining to that period. There is absolutely no reason for PWs.1 and 3 to have invented a theory of options of bill books if really the bill books have existed. Therefore, I am not able to agree with the contention of the learned counsel for the petitioner that it is the prosecution that has to examine S.V.R. Medical Agencies and on the other hand, the burden under Section 19(3) of the Act has to be discharged by the accused in view of the language, wherein it was speciﬁcally stated that it is for the petitioner to prove that he acquired the drug from a licenced manufacturer and absence of knowledge of its adulteration or spurious or that there was no change of the composition of the drug, which was in possession after purchase. Therefore, Section 19(3) of the Act clearly says that the emphasis is on the accused that he has to prove but not the prosecution. Therefore, in view of the above circumstances, it is earlier case where the petitioner has failed to inform the manufacturer and the information given by him about the manufacturer at Karimnagar is found to be not true and therefore, an oﬀence under Section 18-A of the Act has been squarely attracted and the conviction of the revision petitioner for the said offence is sustainable. 12. Therefore, in view of the above circumstances, all the convictions for the revision petitioner/A.1 have been set aside except the conviction for the oﬀence punishable under Section 28 of the Act for violation of Section 18-A of the Act. Taking into consideration the nature of the oﬀence and as he is said to have been involved in other cases also, the punishment of six months and ﬁne imposed there-under for the said oﬀence is conﬁrmed. He is entitled for set oﬀ of the period of the remand. The petitioner is entitled for refund of the ﬁne amount for the other oﬀences, for which he is found not guilty and acquitted. The lower Court is directed to issue Non-Bailable Warrant for apprehension of the accused. Accordingly, the Criminal Revision Case is allowed in part. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:29-11-2011 INL [1] 2009(2) ALD (Crl.) 708 (AP)