STATE REP. BY THE DRUGS INSPECTOR versus MANIMARAN
[2018] 14 S.C.R. 395, Supreme Court of India, 2018
Outcome: Leave Granted & Allowed (Granted)
Segment: Ratio
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STATE REP. BY THE DRUGS INSPECTOR
v.
MANIMARAN
(Criminal Appeal No. 1493 of 2018)
NOVEMBER 30, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Drugs and Cosmetics Act, 1940 – ss. 18(c), 27(b)(ii), 28 and
proviso to 27(b)(ii) – Prosecution case was that when drugs
inspectors had inspected the respondent’s medical shop, they had
found certain drugs stored without a valid licence – Memo was
issued to the respondent u/s.18(c) and afterwards chargesheet was
filed u/ss. 27(b)(ii) and 28 – Trial Court convicted the respondent
and sentenced him to undergo rigorous imprisonment for one year
and imposed fine of Rs.5000/- u/s.27(b)(ii) of the Act and fine of
Rs.500/- u/s.28 of the Act – Appeal was dismissed by the first
appellate Court – In revision, the High Court reversed the conviction
and acquitted the respondent holding that person in whose name
pharmacy licence stood and the person in whose name the shop
stood were not examined, and furthermore that signatures of the
respondent were taken on blank papers and that Exs.P-4, P-7 and
P-10 were made using the same – On appeal, held: The High Court
did not keep in view that the respondent had admitted that he had
purchased the shop from the erstwhile owner and that he had no
licence for sale of drugs either in his name or in any other name –
When both the trial Court as well as the first appellate Court held
that non-examination of erstwhile owner of the shop and person in
whose name the pharmacy licence stood was not
fatal, the High
Court in exercise of its revisional jurisdiction was not right in
reversing the said finding – Insofar as signatures of the respondent
on blank papers were concerned, the respondent did not lodge any
police complaint or complaint before the higher officers of the Drug
inspector or caused any legal notice to the complainant, thus, it
was only an afterthought of the respondent to defend himself that
his signature were obtained on blank papers – From the evidence
of Drug inspector and the admission of the respondent, the
prosecution had established that respondent did not have licence
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for sale of drugs – However, in instant case, the offence was
committed ten years back and respondent was not having any prior
conviction under the Act, further, he had stated in his statement that
he was not aware that he had to obtain licence for sale of drugs –
Therefore, in interest of justice proviso to s.27(b)(ii) of the Act
invoked and the sentence of imprisonment of one year imposed upon
the respondent reduced to three months, while maintaining the fine
of Rs.5000/- –  Jurisdiction – Revisional Jurisdiction.
Evidence Act, 1872 – s.62 – Carbon copies – Held: Carbon
copies can be taken into consideration as primary evidence.
Allowing the appeal, the Court
HELD: 1.  Upon consideration of the evidence, both the
trial court as well as the first appellate court convicted the
respondent under  Sections 27(b)(ii) and 28 of the Drugs and
Cosmetics Act.  When there is concurrent findings by the courts
below, the High Court ought not to have interfered with the same
in exercise of its revisional jurisdiction. The revisional jurisdiction
of the High Court is different from the appellate jurisdiction. The
High court will not normally interfere with the concurrent findings
of fact, unless the findings of fact arrived at by the courts below is
perverse or that the court has ignored the material evidence while
arriving at that finding.  Ordinarily it would not be appropriate for
the High Court
to reappreciate the evidence and come to its own
conclusion on the same when the evidence has already been
appreciated by the Magistrate as well as by the Sessions court in
appeal. When the courts below recorded the concurrent findings
of fact, the High Court was not right in interfering with the
concurrent findings of fact arrived at by the courts below and the
impugned order cannot be sustained. [Para 16][401-G-H;
402-A-B]
2.  The offence under Section 18(c) of the Act is punishable
under Section 27(b)(ii) of the Act which prescribes minimum
sentence of imprisonment for one year and minimum fine of
rupees five thousand. As per proviso to Section 27(b)(ii) of the
Act, for any adequate and special reasons to be recorded in the
judgment, court may impose the sentence of imprisonment for a
term less than one year and a fine of less than five thousand only.
In this case, the offence was committed in the year 2008, about
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ten years back. The respondent was not having any prior
conviction under the Act. The respondent had stated in his
statement, that he was not aware that he has to obtain a licence
for sale of drugs. Considering the facts and circumstances of the
case, in the interest of justice, proviso to Section 27(b)(ii) of the
Act can be invoked and the sentence of imprisonment of one
year imposed upon the respondent is reduced to three months.
[Para 17][402-C-E]
State of Kerala v. Puttumana Illath Jathavedan
Namboodiri (1999) 2 SCC 452 : [1999] 1 SCR 575 –
relied on.
Case Law Reference
[1999] 1 SCR 575
relied on
Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1493 of 2018.
From the Judgment and Order dated 12.09.2014 of the High Court
of Judicature at Madras in Crl. R.C. No. 1493 of 2013.
M. Yogesh Kanna, S. Paratha Sarathi, Mrs.Sujatha Bagadhi,
Raja Rajeshwaran S., Advs. for the Appellant.
Vimal Pani S.C.V,  A. Lakshminarayanan., Advs. for the
Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. This appeal arises out of the judgment dated 12.09.2014 passed
by the High Court of Madras in Criminal R.C. No.1493 of 2013 in and
by which the High Court set aside the conviction of the respondent-
accused under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics
Act, 1940 and the sentence of imprisonment imposed upon the
respondent-accused.
3. Briefly stated case of the prosecution is that the respondent
was running a
medical shop viz., M/s. Sri Balaji Medicals. On the
directions issued by the Assistant Director of Drugs Control, Salem Zone,
the Drugs Inspectors had inspected the respondent’s medical shop on
17.12.2008. In the course of inspection, it was found that certain drugs
STATE REP. BY THE DRUGS INSPECTOR v. MANIMARAN
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were stored without a valid drug licence and the same were seized. A
memo dated 22.12.2008 had been issued to the respondent-accused
alleging contravention of Section 18(c) of the Drugs and Cosmetics Act,
1940. The respondent had caused reply (Ex.-P4) to the said memo without
furnishing details of purchase. The Drug Inspector has filed a charge
sheet against the respondent informing commission of offence punishable
under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940.
Upon consideration of evidence, the trial court after referring to Ex.-P4
held that the respondent has admitted that he has no licence to the
premises for sale of drugs. The trial court further held that Exs.P-4 to P-
7 though were carbon copies, as per Section 62 of the Indian Evidence
Act, they can also be considered as primary evidence. On those findings,
the trial court convicted the respondent and sentenced him to undergo
rigorous imprisonment for one year and imposed fine of Rs.5000/- under
Section 27(b)(ii) of the Drugs and Cosmetics Act and fine of Rs.500/-
under Section 28 of the Drugs and Cosmetics Act. Aggrieved by the
verdict of conviction and the sentence of imprisonment, respondent-
accused preferred an appeal in Criminal Appeal No.18 of 2013 before
the appellate court-Principal Sessions Judge, Krishnagiri which was
dismissed vide order dated 29.08.2013.
4. In the revision petition filed before
the High Court, the High
Court reversed the conviction and acquitted the respondent holding that
non-examination of erstwhile owners namely Jayanthi and Kamalakannan
in whose name pharmacy licence stood was fatal to the prosecution
case. The High Court also referred to the defence that the signature of
the respondent was obtained on blank papers in which Exs.P-4, P-7 and
P-10 were prepared.
5. Learned counsel for the appellant-State has submitted that the
High Court has failed to consider that the respondent without having a
valid licence stocked and selling the drugs and that he did not disclose
the name of the supplier of the drugs, which is a punishable offence
under the provisions of the Drugs and Cosmetics Act. It was further
submitted that the High Court erred in allowing the revision on the ground
that the signature in Exs.P-4, P-7 and P-10 were obtained on blank
papers and that the respondent had failed to prove such fact. It was also
submitted that in the light of the admission made by the respondent in
Ex.-P4, non-examination of Kamalakannan in whose name the pharmacy
licence stood and one Jayanthi in whose name the shop stood was not
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fatal and the High Court erred in reversing the conviction of the
respondent.
6. Per contra, the learned counsel for the respondent has submitted
that the prosecution has failed to prove that the respondent is the owner
of M/s Sri Balaji Medicals and the non-examination of Kamalakannan
and Jayanthi was fatal to the prosecution case. Learned counsel further
submitted that the alleged statement of the respondent in Exs.P-4, P-7
and P-10 relied upon by the prosecution were only carbon copies and
the courts below could not have based the conviction upon Exs.P-4,
P-7 and P-10 and that the High Court has rightly reversed the same.
7. We have considered the rival submissions and perused the
impugned judgment and materials placed on record.
8. At the time of inspection of the medical shop of the respondent
located at 191, Main Road, Bargur on 17.12.2008, it was found that the
retail medical shop was functioning without a valid licence in violation of
Section 18(c) of the Drugs and Cosmetics Act. It was also noticed that
eighty-seven items of drugs were stocked without possessing a valid
drug licence. The respondent was prosecuted for contravention of (i)
Section 18(c) of the Drugs and Cosmetics Act for having stocked and
sold drugs without a valid drug licence which is punishable under Section
27(b)(ii) of the Drugs and Cosmetics Act; and (ii) Section 18(a) of the
Drugs and Cosmetics Act for not furnishing the name of the supplier of
the drug which is punishable
under Section 28 of the Drugs and Cosmetics
Act.
9. The High Court has set aside the conviction mainly on the
ground of non-examination of one Kamalakannan-the person in whose
name the pharmacy licence stood and one Jayanthi in whose name the
shop stood. The High Court did not keep in view that under       Ex.-P4,
the respondent has admitted that he had purchased the retail shop-M/s
Sri Balaji Medicals from one Jayanthi and that he had shifted the shop
from the old place to the current premises No.191, Main Road, Bargur
and selling the drugs. Relevant portion of Ex.P4 reads as under:-
“I have purchased the retail Sri Balaji Medicals two years before
from Mrs. Jayanthi, but there is no sale deed made. Further the
licence of this concern was expired on 31.12.2007 and not applied
for the renewal. Meanwhile I have shifted the said shop from the
old place to the current premises No.191, Main Road, Bargur and
STATE REP. BY THE DRUGS INSPECTOR v. MANIMARAN
[R. BANUMATHI, J.]
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selling the drugs. There is no licence to this premises for sale of
drugs either in my name or any other name. I have purchased the
drugs against the old licence stood on the old address 226, Main
Road, Bargur. I hereby inform you that there is no licence for the
inspected premises that is 191, Main Road, Bargur. I was not
aware of the Drugs and Cosmetics Act and its Rules since it is
first time.”
In Ex.-P4, the respondent thus admitted having purchased the
shop from Jayanthi and that he had no licence for sale of drugs either in
his name or in any other name.
10. In Ex.-P7 also, the respondent had admitted that he had
purchased the retail shop-M/s Sri Balaji Medicals from Kamalakannan
and continually selling the drugs and that on the date of inspection i.e. on
17.12.2008, he did not have the valid licence. Both in Exs.P-4 and P-7,
the respondent had stated that he was not aware that he has to obtain
licence in his own name and apologising for the mistake and requesting
for issuance of licence in his name. The High Court, in our considered
view, did not keep in view Exs.P-4 and P-7.
11. Under Section 18(c) of the Drugs and Cosmetics Act, licence
is required for sale of any drug. Under Section 18(c) of the Act, stocking
or storing of drugs for sale cannot be done without a licence. Respondent
is charged for having stored drugs for sale without licence. Before a
person is convicted under
Section 18(c) read with Section 27(b)(ii) of
the Act, the prosecution must establish that the drugs are stocked or
stored for sale without licence.
12. On the date of inspection i.e. on 17.12.2008, when
N. Banumathi, Drugs Inspector (PW-1) inspected the respondent’s shop,
he did not have any licence. He only stated that he was not aware that
he has to obtain the licence. When the respondent has stocked the drugs
and was selling the same without licence, there was violation of Section
18(c) of the Act which is punishable under Section 27(b)(ii) of the Act.
The Drugs and Cosmetics Act, 1940 is a social statute which provides
for checks and balances so that drugs are sold strictly only by the licence-
holder or that the adulterated drugs are not sold. From the evidence of
PW-1 and from the admission of the respondent in Exs. P-4 and P-7, the
prosecution has established that the respondent did not have licence for
sale of the drugs.
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13. Further during investigation, PW-1 had asked the respondent
through Ex.-P3 to disclose that from whom he had purchased the eighty-
seven kinds of drugs. In his reply letter (Ex.-P4), he has not disclosed
that from whom he had purchased the eighty-seven kinds of drugs and
he had admitted the contraventions by stating that he was not aware of
the procedure to obtain the licence. Respondent has only apologised for
the mistake and requested to issue the licence. In the light of the admission
of the respondent in Exs.P-4 and P-7, non-examination of licence holder
Kamalakannan and shop owner Jayanthi was not fatal to the prosecution
case. When both the trial court as well as the first appellate court held
that non-examination of those two witnesses was not fatal, the High
Court in exercise of its revisional jurisdiction was not right in reversing
the said finding and held that non-examination of Kamalakannan and
Jayanthi was fatal to the prosecution case.
14. Learned counsel for the respondent has submitted that
Exs.P-4 and P-7, that is, the statements of respondent were only carbon
copies and that admission of such carbon copies raises serious doubt
about the prosecution case. As pointed out by the trial court as well as
by the first appellate court, under Section 62 of the Indian Evidence Act,
carbon copies can be taken into consideration as primary evidence and
we find no infirmity in admitting carbon copies of those documents.
15. Yet another contention
advanced by the respondent is that his
signatures were obtained on blank papers and that Exs.P-4, P-7 and P-
10 have been made using the signed blank papers. As pointed out by the
courts below, if at all the signature of the respondent in Exs.P-4, P-7 and
P-10 were obtained on blank papers, the respondent could have lodged
a police complaint or a complaint before the higher officers of PW-1 or
at least could have caused a legal notice to the complainant. But that
was not to be so. There is no merit in the contention of the respondent
that his signature in Exs.P-4, P-7 and P-10 were obtained on blank papers
and is only an afterthought of the respondent.
16. Upon consideration of the evidence, both the trial court as
well as the first appellate court convicted the respondent under
Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act.  When there
is concurrent findings by the courts below, the High Court ought not to
have interfered with the same in exercise of its revisional jurisdiction.
The revisional jurisdiction of the High Court is different from the appellate
jurisdiction. The High court will not normally interfere with the concurrent
STATE REP. BY THE DRUGS INSPECTOR v. MANIMARAN
[R. BANUMATHI, J.]
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findings of fact, unless the findings of fact arrived at by the courts below
is perverse or that the court has ignored the material evidence while
arriving at that finding. As held in State of Kerala v. Puttumana Illath
Jathavedan Namboodiri (1999) 2 SCC 452, ordinarily it would not be
appropriate for the High Court to reappreciate the evidence and come
to its own conclusion on the same when the evidence has already been
appreciated by the Magistrate as well as by the Sessions court in appeal.
When the courts below recorded the concurrent findings of fact, in our
view, the High Court was not right in interfering with the concurrent
findings of fact arrived at by the courts below and the impugned order
cannot be sustained.
17. Insofar as the sentence of imprisonment, the offence under
Section 18(c) of the Act punishable under Section 27(b)(ii) of the Act
which prescribes minimum sentence of imprisonment for one year and
minimum fine of rupees five thousand. As per proviso to Section 27(b)(ii)
of the Act, for any adequate and special reasons to be recorded in the
judgment, court may impose the sentence of imprisonment for a term
less than one year and a fine of less than five thousand only. In this case,
the offence was committed in the year 2008, about ten years back. The
respondent was not having any prior conviction under the Act.  As pointed
out earlier, in his statement, respondent
had stated that he was not aware
that he has to obtain a licence for sale of drugs. Considering the facts
and circumstances of the case, in our considered view, in the interest of
justice proviso to Section 27(b)(ii) of the Act can be invoked and the
sentence of imprisonment of one year imposed upon the respondent is
reduced to three months.
18. In the result, this appeal is allowed and the impugned judgment
dated 12.09.2014 in Criminal R.C.No.1493 of 2013 passed by the High
Court of Madras is set aside. The conviction of the respondent under
Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 is
affirmed and the sentence of imprisonment imposed upon him is reduced
to three months, while maintaining the fine of Rs.5,000/-.   The respondent
shall surrender within a period of four weeks to serve the remaining
sentence, failing which he shall be taken into custody.
Ankit Gyan
Appeal allowed.