IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1280 OF 2004 Between: Dhanekula Kondaiah .....PETITIONER AND The State, represented by Drugs Inspector, Ongole ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1280 OF 2004 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 02.08.2004, in Criminal Appeal No.104 of 2000, on the file of II Additional District and Sessions Judge (Fast Track Court), Ongole, whereunder and whereby, the conviction of the petitioner/A1 of the offence punishable under Section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940 (for short, “the Act”) for contravening Section 18 (c) of the Act and sentence to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of three months and further conviction of the petitioner/A1 of the offence punishable under Section 28 of the Act for contravening Section 18A of the Act and sentence to undergo simple imprisonment for three months, recorded in judgment, dated 06.06.2000, in C.C.No.249 of 1998, on the file of the Judicial Magistrate of First Class, Markapur, were confirmed. 2. The brief facts that are necessary for disposal of the present Criminal Revision Case may be stated as follows: On 30.11.1995, PW.1, who is the Drug Inspector along with two mediators, visited Srinivasa clinic of the petitoner/A1 and found MOs.1 to 35 - certain drugs stocked in the steel cup-board and wall almyrah. A2, who is the son of A1, was present in the clinic. As the said drugs were kept in the clinic of A1 without there being any licence, they were seized under Exs.P-1 and P-2. The accused were found stocking various drugs meant for supply to the Government Hospitals and physician samples not to be sold. Then PW.1 lodged a complaint. 3. When the accused were examined under Section 251 Cr.P.C. for the offences punishable under Sections 18 (c) read with 27 (b) (ii) and 18A read with 28 of the Act, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined PWs.1 to 4 and Exs.P-1 to P-13 were got marked, besides case properties MOs.1 to 35. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence of prosecution witnesses. They denied the same. No oral or documentary evidence was adduced on behalf of the accused. 6. The trial Court accepting the evidence of PWs.1 to 4 found petitioner/A1 guilty and accordingly, he was convicted and sentenced as stated above. Whereas, A2 was acquitted of the offences alleged against him. On appeal, the said convictions and sentences recorded against A1 were confirmed by the appellate Court. Challenging the same, the present Criminal Revision Case is filed by A1. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. Learned counsel for the petitioner/A1 contended that the mediators, who were present at the time of seizure of the drugs in question, did not specifically state as to the nature of the drugs seized from the clinic of the petitioner; that mere possession of drugs by itself is not an offence punishable under the Act, in view of the decision of the Honourable Supreme Court in Mohd. Shabbir v. State of Maharashtra[1] and hence, he prays to set aside the convictions and sentences recorded against the petitioner. 9. On the other hand, learned counsel representing the learned Public Prosecutor contended that certain drugs which were meant to be supplied to Government institutions were found in possession of the petitioner; that the petitioner has not accounted for the same; that the petitioner has not produced any bills for the purchase of the same and therefore, it can be inferred that the petitioner has kept the drugs in the clinic to sell the same to the general public; that the judgments of both the Courts below need not be interfered with, in view of the fact that the findings are based upon proper appreciation of evidence on record and hence, he prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court would not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse if it is not based upon proper appreciation of evidence on record. 11. The specific case of the prosecution is that when PW.1 inspected the clinic of the petitioner, he found MOs.1 to 35 in the clinic of the petitioner, out of which MOs.13, 14, 18 to 21, 23 to 26 and 28 to 31 are the drugs meant for supply to the Government institutions. No doubt, the two mediators, who were examined on behalf of the complainant, did not specifically state that these drugs were seized from the clinic of the petitioner. But, the evidence is very clear that they found two cartons containing various drugs, which were seized from the clinic of the petitioner. Ex.P-1 is the mediators’ report. But there are no reasons to disbelieve the evidence of PW.1, whose evidence is completely in corroboration with the recitals in Ex.P-1. Therefore, prosecution established its case beyond all reasonable doubt that MOs. 1 to 35 were in possession of the petitioner. Admittedly, the petitioner has not produced any licence or document to show that he can keep or store the drugs in his clinic. 12. The contravention committed by the petitioner is whether under Section 18 (a) of the Act, which reads that no person shall himself or by any other person on his behalf manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any certain drugs or under Section 18 (c) of the Act, which reads that who ever manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter, is an offence punishable under Section 27 (b) (ii) of the Act. Whereas, contravening of Section 18A of the Act is an offence punishable under Section 28 of the Act. Both the contraventions alleged by the prosecution is with regard to manufacture, sale, stock, exhibit of drugs without there being any licence. The question is whether mere possession of certain drugs without there being any licence is an offence punishable under Sections 27 (b) (ii) and 28 of the Act. On this aspect, learned counsel for the petitioner placed strong reliance on a decision of the Honourable Supreme Court in Mohd. Shabbir’s case (supra), wherein it is held thus” “….We, therefore, hold that before a person can be liable for prosecution or conviction under S. 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 articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of S. 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant.” So from the above decision it is clear that possession simpliciter is not an offence under Section 27 (a) (i) (ii) of the Act. 13. The drug inspectors – PWs.1 and 4 did not state that the drugs Mos.1 to 35 were kept for sale in the clinic of the petitioner. Similarly, the two mediators, PWs.2 and 3, did not specifically state that the drugs were kept for sale in the clinic of the petitioner. So, in view of the dictum laid down by the Honourable Supreme Court that mere possession simpliciter of the drugs does not appear to be punishable under any of the provisions of the Act, the conviction and sentence recorded by the trial Court are not correct, in view of the fact that there is no evidence to show that the drugs in question were kept for sale in the clinic of the petitioner. Hence, the conviction and sentence recorded against the petitioner by the trial Court is liable to be set aside. 14. Accordingly, the Criminal Revision Case is allowed setting aside the judgment, dated 02.08.2004, in Criminal Appeal No.104 of 2000, on the file of II Additional District and Sessions Judge (Fast Track Court), Ongole. The petitioner/A1 is found not guilty of the offences under Sections 27 (b) (ii) of the Act for contravening Section 18 (c) of the Act and under Section 28 of the Act for contravening Section 18A of the Act and accordingly, he is acquitted of the same. Bail bonds of the petitioner/A1 shall stand cancelled. Fine amount, if any, paid by the petitioner shall be returned to him. _______________ K.C. BHANU, J July 16, 2010 MD THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1280 OF 2004 July 16, 2010 [1] 1979 CRI.L.J. 466 (1)