IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.187 of 2010 Between: The Drugs Inspector, Narsaraopet, Represented by the Public Prosecutor, High Court of A.P., Hyderabad ..... APPELLANT AND Kumbhampati Guru Prasada Rao, S/o. China Pichaiah ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.187 OF 2010 JUDGMENT: This Criminal Appeal, under Section 378 (4), (5) & (1) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is directed against the Judgment, dated 07.03.2006, in Crl.A.No.266 of 2005 on the file of X Additional District and Sessions Judge (FTC), Guntur at Narsaraopet. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is the owner of the house bearing D.No.8-60 situated in Old Town, Macherla. On 26.02.2001, on prior information, the Drug Inspector – PW.1 inspected the house of the accused along with others and after disclosing his identity, he searched the house of the accused in the presence of the mediators. They found four types of drugs of physician samples stored in a cardboard box in the bedroom of the accused under the cot. He noticed that the drugs are of physician samples, not to be sold. After following the due procedure as required under the Act, complaint is lodged against the accused. 3. When the accused was examined under Section 251 Cr.P.C. of the offence punishable under Sections 27 (b) (ii) and 28 of the Drugs and Cosmetics Act, 1940 (for short, “the Act”), he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 4 and got marked Exs.P-1 to P-11 besides case properties M.Os.1 to 5. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The learned Judicial First Class Magistrate, Macherla, after considering the evidence available on record vide Judgment, dated 01.07.2005, in C.C.No.12 of 2002, found the accused guilty of the offences punishable under Sections 27 (b) (ii) and 28 of the Act and accordingly convicted and sentenced him to under go rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 27 (b) (ii) of the Act and further sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 28 of the Act. The appellate Court vide impugned Judgment while setting aside the conviction and sentence of the accused of the offence punishable under Section 27 (b) (ii) of the Act, confirmed the conviction and sentence recorded against him under Section 28 of the Act. Challenging the same, the present Criminal Appeal is preferred by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the offence punishable under Section 27 (b) (ii) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 to 4 would clearly go to show that the drugs in question i.e., M.Os.1 to 4, have been seized from the house of the accused and that they seem to be the physician samples, not for sale. Therefore, the accused was rightly convicted under Section 27 (b) (ii) of the Act by the trial Court. It is also contended that in view of the decision of the Supreme Court in Sk. Amir v. State of Maharastra[1], mere possession of these quantities can be said to be an offence punishable under the Act, and therefore, she prays to set aside the acquittal of the accused for the offence punishable under Section 27 (b) (ii) of the Act. 9. Learned counsel for the appellant contended that the accused is not punishable for the offence, unless it is shown that the accused is intending to sell or store the same with some intention, and that the appellate Court has rightly acquitted the accused and there are no grounds to interfere with the same. 10. There is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or contrary to law, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 11. The evidence of PWs.1 to 4 would clearly go to show that M.Os.1 to 4 have been seized from the house of the accused. They were kept in a cupboard box, which is marked as M.O.5 and the same was kept beneath the cot of the accused. Ex.P-3 coupled with the evidence of PW.1 would clearly go to show that though M.Os.1 to 4 have been seized from the house of the accused, there is no serious denial that the seizure of M.Os.1 to 4 consists of 1300 tablets. 12. The learned counsel for the appellant relied upon a decision of the Supreme Court in Mohd. Shabbir V. State of Maharastra[2], wherein it is held thus: "It was contended by Mr. Singh that in order to fall within the ambit of this section the accused must manufacture the drugs for sale or stock or exhibit for sale or distribute the same. There is no evidence in this case to show that the appellant had any shop or that he was a distributing agent. All that has been shown is that the tablets concerned were recovered from his possession. It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of S. 27 of the Act. On an interpretation of S. 27, it seems to us that the argument of Mr. Singh is well founded and must prevail. The words used in S. 27, namely, "Manufacture for sale, sells," have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale". Thus the section postulates three separate categories of cases and no other. (1) manufacture for sale: (2) actual sale: (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, S. 27 of the Act would not be attracted. 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. Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected…." 13. Similarly, in this case also there is no evidence to show that the accused was having any shop or he was a distributing agent. Therefore, in view of the above decision mere possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of Section 27 of the Act. 14. Learned counsel for the appellant also placed reliance upon a decision of Calcutta High Court in Dr.Sanat Kumar Basu v. State of West Bengal[3], wherein it is held thus: “…Mere stocking of medicines without licence is not the offence for which the accused was charged. The offence contemplated by S. 18 (c) is stocking or exhibiting for sale. The intention to sell is an essential ingredient of the offence…." 15. So, in this case, there is absolutely no evidence either compelling or substantial to show that the accused stocked the drugs in question with an intention to sell the same. Therefore, the appellate Court has rightly acquitted the accused of the offence punishable under Section 27 (b) (ii) of the Act and the said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merits and is liable to be dismissed. 16. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 07.03.2006, made in Crl.A.No.266 of 2005, on the file of X Additional District and Sessions Judge (FTC), Guntur at Narsaraopet. _______________ K.C. BHANU, J 04.02.2010 MD [1] AIR 1974 SC 469 [2] AIR 1979 SC 564 [3] 1984 CRI. L. J. 931