IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 198 of 2008() ----------------------------- CRA.143/2006 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT II, PATHANAMTHITTA. ST.310/2003 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------- T.T.THOMAS, S/O.T.K.THOMAS, THOOMPUMPATTU HOUSE, KOZHENCHERRY EAST P.O., KOZHENCHERRY VILLAGE, (PROPRIETOR, PREMIER PHARMALINES, DOOR NO.K.P.4/458, K.K.ROAD, KOZHENCHERRY). BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. G.ASOKA KUMAR, DRUGS INSPECTOR, PATHANAMTHITTA. BY PUBLIC PROSECUTOR SRI.C.M.NAZER FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 7/10/2008, THE COURT ON 07/10/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.198 OF 2008 =========================== Dated this the 7th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 3(a) of Kerala Drugs and Other Stores (Unlawful Possession) Act by Chief Judicial Magistrate, Pathanamthitta. Conviction and sentence were confirmed by Additional Sessions Judge, Pathanamthitta in Crl.A.143/2006. The conviction and sentence are challenged in this petition filed under section 397 read with section 401 of Code of Criminal Procedure. 2. Prosecution case was that PW2 the Drug Inspector, Pathanamthitta during 2001 along with PW1 another Drug Inspector on 8.4.2002 at about 7 p.m inspected the wholesale sale drug store by name Premier Pharma Lines housed in building No.4/458, K.K. Road,Kozhencherry. During inspection they found 250 I.V. canulas meant CRRP 198/2008 2 exclusively for the use of Government institutions inside the shop. PW1 found sticker pasted over the label of each I.V canulas and in the stickers it was printed as Rs.48/- inclusive of all taxes. PW1 removed the stickers. It was found that beneath the sticker it was printed Kerala Government Supply. PW2 seized 250 Nos.I.V canulas after preparing Ext.P5 mahazar. PW2 furnished a copy of Ext.P5 to petitioner and got his acknowledgement. PW2 seized all the 250 I.V. Canulas. PW2 also seized Ext.P4 bill book which was available in the shop, wherein the original bill was pasted in the carbon copy at page 1899. In the original bill, Rs.120/- was noted. When the original bill found pasted was removed, it was found that the carbon copy of the bill showed an amount as Rs.38,700/-. The prosecution case is that I.V canulas seized from the shop of the petitioner are exclusively meant for the use at Government Hospitals and petitioner has committed the offence under section 3(a) of the Kerala Drugs CRRP 198/2008 3 and Others Stores (Unlawful Possession) Act. PW2 lodged the complaint which was taken cognizance by learned Magistrate. When particulars of the offence was read over and explained to the petitioner, he pleaded not guilty. On the side of the prosecution Pws. 1 to 3 were examined and MO1 series the I.V canulas seized from the shop of the petitioner were identified. Exts.P1 to P9 were also marked. On the side of the defence Ext.D1 one page of Ext.P4 bill book was marked. No witness was examined for defence. Learned Magistrate on the evidence found that M01 series of canulas were sent by the manufacturers Eastern Medikits Ltd as proved by Ext.P7 reply for the use of Government Hospitals alone and they cannot be sold outside. Learned Magistrate also found that evidence of PW2 supported by PW1 establish that PW2 accompanied by PW1 inspected the wholesale drug store at Kozhencherry and seized MO1 series under Ext.P5 mahazar and M01 series were in the possession of petitioner and he could not give any explanation CRRP 198/2008 4 for their possession and petitioner committed the offence under section 3(a) of the Kerala Act. He was convicted and sentenced to simple imprisonment for three months and a fine of Rs.1000/- and in default simple imprisonment for ten days. Petitioner challenged the conviction and sentence in Crl.A.143/2006. Learned Additional Sessions Judge reappreciated the evidence and confirmed the conviction and sentence. It is challenged in this revision. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel argued that courts below did not properly appreciate the evidence and based on Ext.P5 mahazar and the evidence of Pws.1 and 2, it should not have been found that petitioner was in possession of MO1 series of I.V canulas and no independent witness was examined. It was also argued that provisions of Section 5(2) of the Act was not complied with and in such circumstance, conviction is not sustainable. CRRP 198/2008 5 5. Learned Public Prosecutor submitted that both the trial court and the appellate court appreciated the evidence in the proper perspective and appreciation of evidence was not perverse and there is no reason to reappreciate the evidence and even if evidence is reappreciated, findings of courts below is perfectly correct and there is no reason to interfere with the conviction and sentence. 6. Section 3 of the Kerala Drugs and Other Stores (Unlawful Possession) Act,1971(hereinafter referred to as the Act) provides punishment for unlawful possession of drugs or other stores. As defined under clause (a) of Section 2 of the Act, all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals and such substances (other than food)intended to affect the structure or any function of the human body or intended to be used for the destruction of CRRP 198/2008 6 vermin or insects which cause disease in human beings or animals as may be specified from time to time by the Government including such substances which have been specified by the Central Government under section 3(b)(ii) of the Drugs and Cosmetics Act, 1940 before the commencement of Act are drugs. As defined under clause (d) of Section 2, “Other stores” includes articles of linen instruments or appliances acquired by the Health Department, the Animal Husbandry Department or the Department of Indigenous Medicine of the Government of Kerala and having such seal or mark as may be notified by the Government in this behalf indicating that they belong to the Health Department, the Animal Husbandry Department or the Department of Indigenous Medicine of the Government of Kerala. The evidence of Pws. 1 to 3 with M01 series conclusively establish that M01 series of I.V canulas contained the seal indicating that they belong to the Health Department of Government of Kerala. Evidence of PW2 establish that to ascertain CRRP 198/2008 7 the facts, he addressed the manufacturers Eastern Medikits Ltd and Ext.P7 reply received conclusively prove that MO1 series were supplied by the Company to Medical College, Thiruvananthapuram and they are other stores as defined under section 2(d) of the Act. 7. Section 3 of the Act reads:- “3. Unlawful possession of drugs or other stores:- If any person is found or is proved to have been in possession of- (a) any drug having any seal or mark on it or on packages or containers thereof indicating that it belongs to the Health Department, the Animal Husbandry Department or the Department of Indigenous Medicine of the Government of Kerala, or CRRP 198/2008 8 having such seal or mark removed, defaced or in any manner tampered with; or (b) other stores including such stores the seal or mark over which has been removed, defaced or in any manner tampered with, and which is or are reasonably suspected of being stolen or unlawfully obtained, such person shall, if he cannot account satisfactorily as to how he came into possession thereof, be punished with imprisonment for a term which shall not be less than six months but which may extend to two years and with find which shall not be less than one thousand rupees. CRRP 198/2008 9 Provided that the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.” Under section 3, if any person is found or is proved to have been in possession of any drug having any seal or mark on it or on packages or containers thereof indicating that it belongs to the Health Department or having such seal removed, defaced or in any manner tampered with and which is or reasonably suspected of being stolen or unlawfully obtained, such person shall, if he cannot account satisfactorily as to how he came CRRP 198/2008 10 into possession thereof, be punished with imprisonment for a term which shall not be less than six months but which may extend to two years or with fine which shall not be less than one thousand rupees. The proviso enables the court to award a lesser sentence than the minimum after recording adequate and special reasons to be mentioned. 8. Section 5 of the Act provides the powers of the Inspectors. Under clause (a) of sub section (1) an inspector is competent to enter and search with such assistance as he considers necessary, any place in which he has reason to believe that an offence under the Act has been committed or is being committed and also to seize such drugs or other stores which may furnish evidence thereof. Clause (b) of Section 5 enables the inspector to examine any record, register, documents or other material objects found in any place mentioned at the time of search as provided under clause (a), if he has reason to believe that it may furnish CRRP 198/2008 11 evidence of the commission of an offence punishable under the Act. Sub section (2) of Section 5 provides that so far as may be, provisions of Code of Criminal Procedure with regard to the search shall apply to any search under the Act. Section 6 provides that where an Inspector seizes any drug or other stores or any record, register, document or material object as provided under section 5, it shall be produced before a Magistrate having jurisdiction of the area within 24 hours. 9. Evidence of PW2 is corroborated by PW1 and Ext.P5 mahazar establish that procedures provided under the Act were complied. Though learned counsel argued that as no independent witness was examined, evidence of Pws.1 and 2 should not have been accepted by the courts below, Ext.P5 seizure mahazar the contemporaneous record prepared at that time establish that it was prepared at 7 p.m on 8.4.2002. Ext.P5 shows that it was prepared by PW2 the Drugs Inspector and was also attested by CRRP 198/2008 12 PW1. Ext.P5 contains endorsement of the petitioner to the effect that he had received the copy of the mahazar on the same day immediately after its preparation. Though no independent witness was examined, nothing was pointed out to disbelieve the evidence of Pws.1 and 2. Evidence of PW1 is corroborated by the evidence of PW2. Similarly evidence of PW2 is corroborated by PW1. Their evidence is further corroborated by Ext.P5 prepared at the time of seizure. Evidence conclusively establish that when Pws.2 inspected the shop of the petitioner with PW1 M01 series of 250 I.V canulas were found in the wholesale stores of petitioner and petitioner could not offer any explanation for its possession. Ext.P4 the bill book contained Ext.P4(a) entry which corroborates the evidence of Pws.1 and 2 that above the original carbon copy of the bill, another bill was pasted showing the amount as Rs.120/- but the carbon copy of bill 1899 shows that the amount was Rs.38,700/-. Evidence of PW3 the Manager of CRRP 198/2008 13 Eastern Medikits Ltd establish that as sought for by PW1, Ext.P7 reply was sent by the Company signed by Raji Varma the Senior Manager which establishes that MO1 series of I.V canulas were manufactured in their factory and they were forwarded to Medical College, Thiruvananthapuram and it cannot be sold outside and were manufactured exclusively for use in Government Hospitals. Evidence therefore establish that M01 series, which were found in the possession of the petitioner in his shop, are the “other stores” as defined under section 2(d) of the Act. In such circumstance, findings of courts below that petitioner was in possession of MO1 series is perfectly correct, in the light of the evidence on record as M01 series are proved to be the “ other stores” which contains the seals establishing that they are meant for the use of only Government Health Department and evidence of PW3 establish that they were manufactured by their Company. It is absolutely clear that possession CRRP 198/2008 14 of M01 series by the petitioner, which are “other stores” as defined under the Act was unlawful as provided under section 3 of the Act. Conviction of the petitioner for the offence under section 3 of the Act is perfectly legal. Though courts below convicted petitioner under clause (a) of Section 3, clause (a) applies to unlawful possession of drugs and clause (b) applies to unlawful possession of “other stores” as defined under section 2(d) of the Act. Petitioner can only be convicted under section 3(b) of the Act. But whether conviction is under clause (a) or clause (b), it is as provided under section 3 and the sentence is also the same. Therefore even if the conviction is altered to one under section 3 (b) of the Act, it will not cause any prejudice to the petitioner. Therefore conviction of the petitioner is modified to one under section 3(b) of the Act instead of clause 3(a). 10. Then the only question is with regard to the sentence. Learned Magistrate sentenced CRRP 198/2008 15 petitioner to simple imprisonment for three months apart from a fine of Rs.1000/- with default sentence of simple imprisonment for ten days. Section 3 provides for a minimum sentence of imprisonment of six months but which may extend upto two years and a fine which shall not be less than Rs.1000/-. The proviso enables the court to award a sentence than the minimum sentence provided. But it can only be for adequate and special reasons. Learned Magistrate has awarded a lesser sentence of simple imprisonment for three months for the reason that he is the first offender and a lenient view is to be taken. The argument of the learned counsel is that petitioner is now aged 60 years and therefore leniency is to be shown and even if substantive sentence is mandatory the period is to be reduced to imprisonment till rising of the court. Considering the nature of the offence, it is not in the interest of justice to reduce the sentence as sought for by petitioner especially when CRRP 198/2008 16 without stating adequate and special reasons as mandated under proviso to Section 3, learned Magistrate has awarded a lesser sentence than the minimum sentence provided. In such circumstance, I do not find any reason to interfere with the sentence. Criminal Revision Petition is disposed modifying the conviction from Section 3(a) to Section 3(b) of the Kerala Drugs and Other Stores (Unlawful Possession) Act and confirming the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006