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State of Karnataka Vs. Lobo Medicals and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1978CriLJ1837
AppellantState of Karnataka
RespondentLobo Medicals and anr.
Excerpt:
.....in the offence in question. it is well to remember that we are dealing in this case with a socio-economic offence. it is true that the merchant has issued notices to the customers to take refund of the small amount, but it is well to remember that he has done so alter receiving the show cause notice from the drugs inspector. in the instant case, the price list is at exhibit-p7 which contains an endorsement that it is issued as required by the drugs (price control) order, 1970, which clearly indicates that the necessary approval as required under the drugs control order, is obtained prior to the issue of the price list. that being so, we have no hesitation to hold that the price list is issued after obtaining the approval of the central government as required under the drugs (price..........under section 7 (1) (a) (ii) of the essential commodities act, 1955, read with paragraph 15 of the drugs (price control) order, 1970.2. the appeal arises this way : accused-1 is the firm running under the name and style, m/s. lobo medicals, door no. 102, ward no. 14, hampankatta, mangalore. it trades in drugs holding a valid licence, a-2 is the proprietor of the firm being a qualified person. on 3-10-1972 one of the drug inspectors, namely, s. shantarama shetty (p. w. 1), inspected the sales premises of accused-1-firm and discovered that under cash bill no. 03279, dated 29-9-1972, the accused sold 6 x 3 m.l. ampules of neurobion merck of batch no. 30271 and 27371 for rs. 15/- plus the taxes and further that he had sold 3 x 20 tablets of sole obion under cash bill no. 03325 dated.....
Judgment:

G.N. Sabhahit, J.

1. This appeal is directed against the judgment and order of acquittal passed on 29-8-1977 by the II Additional Chief Judicial Magistrate, Mangalore, in C. C. No. 733/1975, on his file acquitting the accused-respondent for an offence punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955, read with paragraph 15 of the Drugs (Price Control) Order, 1970.

2. The appeal arises this way : Accused-1 is the firm running under the name and style, M/s. Lobo Medicals, Door No. 102, Ward No. 14, Hampankatta, Mangalore. It trades in drugs holding a valid licence, A-2 is the proprietor of the firm being a qualified person. On 3-10-1972 one of the Drug Inspectors, namely, S. Shantarama Shetty (P. W. 1), inspected the sales premises of Accused-1-firm and discovered that under cash bill No. 03279, dated 29-9-1972, the accused sold 6 x 3 M.L. Ampules of Neurobion Merck of batch No. 30271 and 27371 for Rs. 15/- plus the taxes and further that he had sold 3 x 20 tablets of Sole Obion under cash bill No. 03325 dated 30-9-1972 for a sum of Rs. 22.05 plus taxes. On verification from the price-list displayed in the said premises, he found that the accused had collected Rs. 1.69 in excess for the Neurobion Merck ampules and a sum of Re. 0.60 in excess in respect of the Solerobiontablets sold under the above mentioned receipts. The Drugs Inspector reported the matter to the Drugs Controller and after following the required formalities, a complaint was instituted against accused alleging that by collecting excess price in respect of the above mentioned drugs, they committed an offence punishable under Section 3 (2) (c) of the Essential Commodities Act, 1955, read with para 15 of the Drugs (Price Control) Order, 1970, punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act.

3. Before framing charge, the learned Magistrate examined S. Shantarama Shetty (P. W. 1), the Drugs Inspector, M.S. Kustagi (P. W. 2) another Drugs Inspector and S. H. Anegundi (P. W. 3) who was also a Drugs Inspector. The learned Magistrate being satisfied that there was prima facie case against accused, on the evidence of these three witnesses, framed charge and recorded the plea of the accused so far as the sale of Solerobion tablets are concerned. Accused pleaded not guilty and claimed to be tried. Thereafter, the witnesses were cross- examined and the accused was examined under Section 313 of the Cr. P.C. to enable him to explain the circumstances appearing against him. The accused submitted that he collected the excess 0.44 P. through bona fide mistake and that he had written letters to the concerned customers to take refund of the same. So, according to him, there was no mens rea on his part to commit an offence. The learned Magistrate appreciating the evidence on record found that the accused did carry out the sale as alleged and affirmed by the prosecution witnesses and that he collected about 0.60 P. more by way of local taxes. But in his view, there was no mens rea on the part of the accused by his judgment and order referred to above. Aggrieved by the said order of acquittal, the State has come up in appeal before this Court.

4. The learned High Court Government Pleader appearing for the State vehemently argued that the learned Magistrate clearly erred in acquitting the accused on the ground that he had no mens rea. He invited our attention to the wording in Section 7 of the Essential Commodities Act which read:

If any person contravenes, whether knowingly, intentionally or otherwise, any order made under Section 3...

Thus, he submitted that the offence under the Essential Commodities Act as it stood then did not require mens rea on the part of the accused and that it was made a strict liability offence.

5. As against that the learned Counsel appearing for the respondent-accused strenuously contended that the learned Magistrate was justified in acquitting the accused for the following reasons.

(1) The Essential Commodities Act was subsequently amended in 1974 placing the burden of disproving the presumption about mens rea on the accused.

(2) That the price control order relied upon by the prosecution was not proved to be issued on the approval of the Central Government as contemplated in para 15 of the Drugs Control Order. He further submitted (3) that the offence if at all is a trivial one, which could be ignored under Section 95 I.P.C. (4) According to him the prosecution failed to bring on record the alleged notification issued by the Central Government on 9-4-56 at SRO 828 declaring drugs as Essential Commodities. On these he submitted that the final order of acquittal passed by the learned Magistrate was justified.

6. The points, therefore, that arise for consideration in this appeal are.

(1) Whether the learned Magistrate was justified in acquitting the accused holding that the prosecution failed to prove mens rea?

(2) Whether the prosecution proves that the necessary notification declaring drugs as Essential Commodity under Section 3 of the Essential Commodities Act was issued at S.R.O. 828 dated 9-4-1956?

(3) Whether the prosecution has proved that the price list involved in this case was issued with the approval of the Central Government as required under para 15 of the Drugs Control Order?

(4) Whether this offence could be treated as a trivial one so as to attract the provisions of Section 95 of I.P.C.?

7. We will take up the first point, namely, whether mens rea was required to be established during the relevant period to convict the accused of an offence under Section 3 of the Essential Commodities Act. A mere perusal of Section 7 of the Essential Commodities Act as it stood makes it clear that no such mens rea was required; for it reads;

If any person contravenes, whether knowingly, intentionally or otherwise....

The words 'intentionally or otherwise', make it abundantly clear that the Legislature in its wisdom has excluded mens rea from an offence falling within the purview of the Essential Commodities Act. This Court in the case of M. A. Usman v. State of Mysore (1970) 2 Mys LJ 113, has ruled interpreting the words 'intentionally or otherwise' that mens rea is not necessary to be proved in an offence falling within the mischief of Essential Commodities Act. This is what the Court stated.

In a prosecution for an offence under the Essential Commodities Act the prosecution is not required to prove that the accused had the necessary mens rea. ...

That being so, it is obvious that the learned Magistrate clearly erred in importing mens rea and requiring the prosecution to prove the same in the offence in question. The order of the acquittal of the learned Magistrate solely based on the point cannot at all be sustained.

8. Adverting now to the second point regarding the original notification No. S.R.O. 828 dated 9-4-1956, the learned Government Pleader has produced the original notification from the Gazette itself. It has appeared in Gazette of India, Extraordinary, Part II-Sec. 3, New Delhi, Monday April 9, 1956, which reads:

S.R.O. 828.- In exercise of the powers conferred by Sub-clause (xi) of Clause (a) of Section 2 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government hereby declares 'drugs' to be an essential commodity for the purposes of the said Act.

That being so, we are constrained to hold that there is no substance in the submission made by the learned Counsel for the appellant that the notification relied upon was not forthcoming.

9. Next, the learned Counsel argued that the amount involved in this case was about 60 paise and as such, this should be treated under Section 95 of the Penal Code. It is true that Section 95 of the I.P.C. enshrines the maxim de minimis non curat lex (the law does not take account of trifles). If this was an offence of the classical type say for example theft of a few paise, we should have certainly conceded to the submission made by the learned Counsel. It is well to remember that we are dealing in this case with a socio-economic offence. The Law Commission of India in its 47th Report deals with the socio-economic offences and punishments. In Chap. 7, para 49, the Commission observes.

In the case of social and economic offences, what has been detected and brought before the Court is, more often than not a surface manifestation of a poisonous spring of habitual misconduct running underground. Detection is particularly difficult in the case of social and economic offences. Gathering of information leading to prosecution is equally difficult and conviction much more so. Whatever may be the position as regards conventional crimes, the odds here are that it was by sheer luck that the offender has escaped detection for other crimes.

We are now concerned with only one bill issued by the firm. Several other bills might have escaped from detection. Hence, though the amount represented in the bill is a small amount, if all these bills selling the particular drug are considered they constitute a large amount, Hence, this cannot be considered a trifle offence and we are not persuaded to accept the position as submitted by the learned Counsel. Next the learned Counsel submitted that by the amount collected pertaining to the local taxes, namely, sales tax in this case, the merchant was not likely to be benefited. It is true that Section 18-A of the Sales Tax Act contemplates that all the amounts collected as sales tax should be credited to the Government. Whether in this case the merchant intends to credit or he has credited all the amounts that he collected or only the legally liable amount, there is no evidence to show and hence there is no force in the submission that the merchant was not likely to be benefited by such collection. It is true that the merchant has issued notices to the customers to take refund of the small amount, but it is well to remember that he has done so alter receiving the show cause notice from the Drugs Inspector. Hence, that conduct of his, though it may be relevant for the purpose of awarding sentence, cannot go to absolve him from the criminal liability. It is a strict liability offence contemplated under the Act.

10. The learned Counsel further submitted that the Drugs (Price Control) Order contemplates that the price list should be issued by the manufacturing company with the prior approval of the Central Government. In the instant case, the price list is at Exhibit-P7 which contains an endorsement that it is issued as required by the Drugs (Price Control) Order, 1970, which clearly indicates that the necessary approval as required under the drugs control order, is obtained prior to the issue of the price list. There is a presumption under Section 114 of the Indian Evidence Act, that official acts have been regularly performed and it is so mentioned in the price list itself. Moreover, when the Drugs Inspector was in the witness box and referred to the price list Ext. P-7, his evidence was never challenged in the cross-examination on the ground that approval to the price list as contemplated in the Drugs Act was not obtained. That being so, we have no hesitation to hold that the price list is issued after obtaining the approval of the Central Government as required under the Drugs (Price Control) Order, 1970.

11. Thus, we are satisfied for the reasons stated above, that the learned Magistrate was not justified in holding that the offence with which the accused was charged was not proved against him by the prosecution, beyond reasonable doubt. We hold that the prosecution has satisfactorily and beyond reasonable doubt established the offence against the accused, punishable under Section 7 read with para 15 of the Drugs (Price Control) Order, 1970.

12. That leads us to the awarding of sentence required to be imposed on the accused. It is a first offence and it is not necessary that the accused should be awarded imprisonment. Besides, looking to the facts that the measure of damages likely to be done on the facts of the case is of a minor nature and further that the accused has taken care to issue notices to the customers to get refund of the excess amount recovered, we hold that a lenient view in imposing punishment would meet the ends of justice. For all intents and purposes it is accused No. 2 who is liable for the offence and he is not separate from the firm and the firm is not separate from him. We find the accused guilty of the offence and they being one and the same, we deem it proper to sentence accused No. 2 and sentence him to pay a fine of Rs. 100/- in default to undergo simple imprisonment for a week. The appeal is accordingly allowed by setting aside the order of acquittal passed by the trial Court.


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