IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.989 of 2006 Between: The Drugs Inspector, Sangareddy, represented By the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Appellant AND E. Krishnaiah, S/o Shivaiah .. Respondent JUDGMENT: The State through the learned Public Prosecutor preferred the present appeal against the acquittal of the accused ordered in Criminal Appeal No.48 of 2002 by the III Additional District and Sessions Judge (Fast Track Court), Medak, dated 29-06-2005 reversing the conviction and sentence passed by the trial Court in C.C.No.495 of 2000 on the file of Judicial Magistrate of First Class, Andole at Jogipet, by the judgment dated 01-03-2002. The Drugs Inspector prosecuted the sole accused in C.C.No.495 of 2000 alleging that on 26-05-2000 at 12.00 Noon, the Drugs Inspector along with other officials inspected Anitha Clinic of the accused and found 32 items of drugs to have been stocked in the premises without any licence. The accused was claimed to have been unable to produce any purchase bills and the said items were claimed to have been seized under a panchanama before the mediators. The medicines were stated to be given to people at low rates by the accused, who was claimed to be a registered medical practitioner. As the accused failed to disclose the sources of supply of the drugs in spite of a statutory notice and as the accused stocked and exhibited the drugs for sale, he was prosecuted for the offences under Sections 18 (c) and Section 18 A of the Drugs and Cosmetics Act 1940 punishable under Section 27 (b) (ii) and Section 28 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the Act”). The accused was furnished with the copies of documents on his appearance after the offence was taken cognizance by the trial Court and he denied the offence when he was examined under Section 251 of the Code of Criminal Procedure. After examining PWs.1 to 5 and marking Exs.P.1 to P.11 and M.O.1 during trial, the accused was examined under Section 313 of the Code of Criminal Procedure, during which he denied the incriminating circumstances appearing in the evidence against him and he adduced no defence evidence. The trial Court rendered its judgment dated 01-03-2002 noting that PW.5, the Drugs Inspector and PW.2, the Assistant Director, had jurisdiction over the place where the drugs were seized and PW.1 was noted to be one of the panch witnesses. The trial Court also noted that PWs.3 and 4 were signatories to Ex.P.3 common representation and the trial Court also noted the admission of PWs.2 and 5 that keeping of drugs is not an offence but keeping the drugs for sale is an offence. The trial Court observed that PWs.2 and 5 could not have been treated as partisan witnesses and the trial Court refused to consider the drugs found to be capable of being construed as stock for personal use. As the drugs were in heavy and not reasonable quantities, the trial Court acted upon the claim of the Drugs Inspector that the accused failed to produce any drugs licence and admitted to have purchased the drugs for his own practice in a low quantity. The trial Court further observed that Ex.P.3 representation in which the guilt was almost admitted was not denied by the accused and as the accused was found to have addressed Ex.P.11-letter to the Drugs Inspector about his purchasing medicines for his practice, the trial Court concluded that the accused was selling the drugs to his patients though claimed to be at a low price. So, as the accused failed to disclose the sources of supply and was probablised to be selling the drugs to his patients, the trial Court found the accused guilty of both the offences and imposed simple imprisonment for one year and a fine of Rs.5,000/- under Section 18 (c) read with Section 27 (b) (ii) of the Act and a sentence of simple imprisonment for the offence under Section 18 A read with Section 28 of the Act. It directed the sentences to run concurrently and the period of remand to be set off. In appeal against the said judgment, the III Additional District and Sessions Judge (Fast Track Court), Medak in the judgment in Criminal Appeal No.48 of 2002 dated 29-06-2005 considered the evidence of PW.1 to be suspicious and to be in connivance with the officials probably due to business rivalry. The appellate Court considered the native of Jogipet also involved in medical business to be, hence, doubtful. It also noted that the sales representatives of the Drug Companies will offer drug samples to Physicians and medical practitioners and hence, it presumed that PW.1 also would have got the medicines found in such manner. The appellate Court considered the evidence of PW.2 to be unconvincing in the absence of disclosure of any complaint against the accused leading to the search and in the face of absence of any purchase of any drug by PW.1 or PW.2 from the accused. While refusing to take Ex.P.3 representation from the villagers as proof of guilt of the accused, the appellate Court also noted that no government drugs were found to be in possession of the accused as alleged. While noting that PWs.2 and 5 admitted that mere possession of the drugs is no offence, the appellate Court also noted that the contents of Panchanama cannot be believed in the absence of any corroboration for PW.1 by any other independent witness and PW.3 was noted to have never stated about the accused selling drugs at low prices to the patients. PW.4 was also noted to have told the Drugs Inspector that the accused was treating the patients by collecting low fees and also by doing free service. The appellate Court further observed that there was no other clinic or medical shop in the village at the material time and the accused was in fact doing service to the people. It was further noted that the accused was never alleged to be selling spurious drugs or expired drugs or misbranded drugs or adulterated drugs. The appellate Court also felt that PW.5 had no power to take action against the accused for not having any licence to practise in medicine and when the accused can keep reasonable quantity of medicines with him and in the absence of any specific complaint, the accused should not have been prosecuted. The appellate Court further noted that the drugs seized were not sent for analysis by the Drugs Inspector to determine their quality and merely because some drugs were found in the possession of the accused, they could not have been presumed to be stocked or exhibited for sale. Therefore, the appellate Court gave the benefit of reasonable doubt to the accused, allowed the appeal and directed to refund the fine amount after appeal time and thus nullified the conviction and sentence. The grounds of appeal questioned the acquittal of the accused in spite of failure of the accused to disclose the sources of supply of drugs and in spite of the prosecution clearly establishing 32 items of drugs being stocked for sale. When it cannot be presumed that such huge quantity of drugs were kept for personal use, the accused could not have been acquitted. Heard Sri K. Venkateswara Rao, learned counsel, representing learned Public Prosecutor and Sri S. Sudarshan, learned counsel for the accused, who reiterated their respective contentions. The point for determination is whether the prosecution proved the guilt of the accused beyond reasonable doubt for an offence punishable under Section 18 (c) read with Section 27 (b) (ii) and/or Section 18 A read with Section 28 of the Drugs and Cosmetics Act, 1940. The Drugs and Cosmetics Act, 1940 in Section 18 (c) makes any manufacture for sale (or for distribution) or sale, or stocking or exhibiting (or offering) for sale, or distribution any drug (or cosmetic) except under and in accordance with a licence issued under the Act an offence. The contravention of Section 18 (c) is made punishable under Section 27 (b) (ii) with imprisonment for a term up to three years, which shall not be less than one year and with fine, which shall not be less than five thousand rupees. A lesser sentence, of course, may be imposed for any adequate and special reasons to be recorded in the judgment. Ex.P.1 Panchanama for seizure of the drugs by the Drugs Inspector in the presence of mediators only states about the accused allegedly stating that the drugs were being sold at lower prices to the patients in the course of practice of the accused as a private medical practitioner. When it comes to Ex.P.2-form-16, it contained only the details of the drugs seized and nothing more, while Ex.P.3 representation given by third parties to the Drugs Inspector also alleged the drugs being sold to the patients at lower prices to help the poor. While mentioning the accused to be doing lot of social service to the poorer sections of the society in that and surrounding villages with his free treatment, Ex.P.3 presented by the Public representatives of the village did not elaborate about any personal knowledge of any of the signatories about such sales of drugs. In Ex.P.11 representation submitted by the accused to the Drugs Inspector, the accused himself never stated about any sale of drugs by him to any patients for any prices and only stated about his purchasing the medicines for use in his practice. While the village elders stated in Ex.P.3 that the accused was treating the patients free of cost, Ex.P.11 does not in any manner indicate that the accused was charging anything from the patients for the medicines he is giving them. When it came to the oral evidence, PW.1, the mediator for Ex.P.1-Panchnama, only stated about the accused admitting that he kept the drugs in the clinic for his medical practice and he did not state anything about the accused stating about any sale of drugs for any price to any patient. PW.1, while not knowing whether the accused is a registered medical practitioner or not, did not say a word about any reference to any sale of drugs during the entire proceedings. PW.2, the Assistant Director, in his evidence of course claimed that the accused told that he was selling the drugs to the patients at low prices, but he admitted during cross- examination that mere possession of drugs is no offence and only stocking or storing for sale is an offence. The witness, while referring to the complaint about the accused stocking Government Hospital drugs, had to admit that the drugs seized were not Government hospital drugs. He also admitted that he did not collect any other evidence except the alleged admission of the accused about the storage or sale of drugs. PW.3, who is a signatory to Ex.P.3 representation, turned hostile and denied the contents of Ex.P.3 and also denied visiting the clinic of the accused on that day. PW.4 stated that he drafted Ex.P.3 as dictated by the Drugs Inspector and his evidence is no corroboration to its contents. The evidence of PWs.3 and 4 being what it is, is no corroboration of the allegation in Ex.P.3 that the accused was selling drugs at low prices to the patients. Even PW.5, the Drugs Inspector, only stated about what the accused allegedly stated about the sale of drugs at low prices and he admitted that in Ex.P.11, the accused did not admit that he was selling the drugs stocked by him. PW.5 also admitted that no licence is required for keeping the medicines and the accused, when examined by the trial Court before and after trial, made a total denial of the allegations. On such material, it does not appear to be possible to conclude that the drugs found and seized at the premises of the accused were stocked or exhibited at the premises of the accused for sale or distribution without any licence. While the accused was not caught selling any of the drugs, his possession of the drugs cannot be considered to have been probablised to be for stocking or exhibiting or offering for sale or distribution of the drugs in question without possessing a licence. While the accused admittedly did not possess any licence in this regard, the distribution of the drugs by the accused to any person was not attempted to be proved by examining any person, who received such drugs and PWs.2 and 5 admittedly did not ask for purchase of any drug nor the accused was asked to explain about the sources of the drugs. Under the circumstances, the benefit of doubt given by the appellate Court in this regard holding that it was not proved that the drugs were in possession of the accused in violation of Section 18 (c) of the Act, therefore, does not appear to be susceptible to any interference herein and it is needless to reiterate that any challenge to a judgment of acquittal requires very strong grounds to succeed. Insofar as the alleged offence covered by Section 18-A of the Act is concerned, the person in possession of the drugs is statutorily required to disclose the details of the person from whom the drugs were acquired and any violation of such statutory requirement of disclosure is made punishable under Section 28 of the Act with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both. Insofar as this offence is concerned, Ex.P.1-Panchanama specifically alleged at the earliest point of time that the accused when questioned stated that he had no bills showing purchase of the drugs, which were found and seized. Ex.P.3 also makes no reference about the manner in which the drugs were acquired by the accused. Ex.P.11 from the accused to the Drugs Inspector clearly stated that he did not preserve the bills of the drugs purchased in small quantities. PWs.2 and 5 positively stated that the accused did not disclose from whom the drugs were acquired by him and the evidence of PWs.1, 3 and 4 no way suggested the possibility of the accused disclosing the sources of his acquisition of the drugs, which were seized. The accused, who made a bald denial during his examination by the trial Court, did not attempt to explain from whom and in what manner the drugs were acquired by him. Even the appellate judgment, which doubted the version of the prosecution in various ways in respect of the other evidence, did not doubt the drugs being found in the possession of the accused. The appellate Court positively concluded only that the drugs were proved to have not been stocked or exhibited for sale even if they were found in the possession of the accused. The drugs were immediately produced before the Court along with Ex.P.6 and under the circumstances, insofar as the offence of violation of Section 18 A of the Act is concerned, it appears indisputably that the accused found in possession of the drugs seized failed to disclose to the Drugs Inspector the names, addresses and other particulars of the persons from whom he acquired the drugs even after being required to do so. The said violation makes him liable for punishment under Section 28 of the Act. Under the above circumstances, the complete acquittal of the accused for both the offences by the appellate Court, which did not discuss anything about the latter offence, cannot be agreed to and has to be reversed. In the result, the accused is found not guilty of the offence punishable under Section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940, for violation of Section 18 (c) of the Act and his acquittal for the said offence by the impugned judgment stands confirmed. The accused is found guilty of the offence punishable under Section 28 of the Act for violation of Section 18 A thereof and he is sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) and in default to undergo simple imprisonment for a period of two months in respect thereof under Section 255 (2) of the Code of Criminal Procedure. If the fine amount paid by the accused after the judgment of conviction and sentence of the trial Court in C.C.No.495 of 2000 is still with the trial Court, the fine of Rs.1,000/- now imposed shall be retained out of the said amount and the balance of money paid by the accused can be refunded to him. If the entire fine amount paid by the accused was already refunded to him, the trial Court shall take immediate steps for recovery of the fine of Rs.1,000/- imposed by this judgment or in default to have the sentence imposed in default of payment of fine executed. The appeal is allowed in part accordingly. _____________________ G. BHAVANI PRASAD, J Date: 11-02-2010 Ksn