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The Public Prosecutor Vs. Mahaveer Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1972CriLJ1546
AppellantThe Public Prosecutor
RespondentMahaveer Prasad and ors.
Excerpt:
.....a copy of it and that the search and seizure were conducted and made in his presence. 3. the learned magistrate acquitted the accused on the ground that the seizure of the drugs from the shop of the accused could not be said to be established in view of the failure of the prosecution to examine the ranch witnesses. the learned magistrate also held that there was failure to comply with the provisions of the criminal procedure code relating to searches. the explanation of the 2nd accused that he went on signing every paper that he was asked to sign by the drugs inspector is most unconvincing. 6. the learned magistrate also appears to have thought that there was a failure to observe the provisions of the criminal procedure code in regard to the searches since the drugs inspector..........of a contravention of section 18(a)(ii).8. the second charge was that the accused stocked for sale drugs not intended for sale in contravention of section 18(a)(vi) read with rule 65 (17) rule 65 (17) prohibits the sale or stocking of a drug in violation of any statement or direction recorded on the label or wrapper several of the drugs seized from the accused contained labels 'physician's sample not for sale.' the sale of such samples would therefore be a contravention of rule 65 (17). the learned counsel however urged that all that was established against the accused was that the accused had stocked these medicines and in that they had sold the medicines. the label did not prohibit the stocking of the drugs. it only prohibited the sale of the drugs. he therefore urged that there.....
Judgment:

Chinnappa Reddy, J.

1. This is an appeal by the State against the Judgment of the learned Fourth City Magistrate, Hyderabad acquitting the four respondents of offence under the Drugs and Cosmetics Act. The prosecution case was that on 9-10-1968 P. W. 1 and P. W. 2, two Drugs Inspectors went to Adarsh Medical Hall for a routine inspection. The four respondents who were partners were proprietors of the medical shop. A-2 alone was present. In the course of the inspection they found that there was a large quantity of drugs in an attic bearing the labels 'Medical Stores GMH' and 'Medical Stores OGH.' 'GMH.' meant Gandhi Medical Hospital and 'OGH' meant Osmania General Hospital. There were also several drugs with the labels 'Physician's sample not for sale.' P. W, 1 then telephoned to the office of the Director of Medical Services for assistance. Panchas were also gathered. Appa Rao and Gopalakrishnamurty two senior Drugs Inspectors came to the shop. They brought with them P. W. 3, a sub-Inspector of Crime Branch of the C. I. D. In their presence several drugs bearing marks 'Medical Stores GMH,' Medical Stores OGH,' 'ESI,' Government of Maharashtra' and 'Physician's sample not for sale' were seized. As many as 129 items were seized under a panchnama Ex. P-l. A copy of the Panchanama was given to A-2, one of the partners of the firm who was present. A-2 endorsed on the panchanama that he had received a copy of it and that the search and seizure were conducted and made in his presence. A receipt in form No. 16 prescribed by the Drugs and Cosmetic Rules was prepared and was given to A-2. The next day P. W. 1 and Apparao visited the shop once again and issued an order under Section 22(c) of the Drugs and Cosmetics Act directing him not to dispose of the stock in his possession for a period of twenty days. A-2 signed Ex-P-3 in token of having received a copy of the order. Another similar order Ex. P-4 was also served on A. 2 and he signed that also. On 17-10-1968 a notice was issued to the firm of the respondents to disclose the source from which the firm acquired the drugs found in its possession. Another notice was issued to produce the purchase bills etc. The notices were served on A-2 and he made endorsements to that effect on Exs. P-5 and P. 6. Subsequently A-3. one of the partners of the firm wrote a letter to P. W. 1 on 23-10-1968 requesting that he might be given a fortnight's time to send a reply to the notices. No reply was. however, ever sent. On 19-11-1968 P. W. 1 and Apparao once again went to the shop of the respondents and seized some raore drugs under panchanama Ex. P-8. The signature of A-2 was taken in Ex. P-8 and a notice in form No, 16 was also served on him. Thereafter a complaint was laid against the four respondents. The learned Magistrate framed charges under Section 17(e) read with Section 18(a)(ii) of the Drugs and Cosmetics Act. Section 18(a)(vi) read with Rule 65 (17) of the Rules, Section 18(a)(vi) read with Rule 65 (4) and Rule 65 (5) (3) and Section 18(A) of the Drugs and Cosmetics Act.

2. The plea of the accused was one of denial. Accused 1. 3 and 4 stated that the 2nd accused alone was in charge of the business and that they knew nothing. The 2nd accused examined himself as Dw-1 and stated that he was solely responsible for the conduct of the business. On 9-10-1968 at about 5 p. m. one Ramana Rao a senior Drugs Inspector came to his shop for inspection. While he was there P. Ws, 1 and 2 also came there and had a talk with him and went away. Later at 6. p. m. PW-1 came to the shop once again and took his signature on some papers stating that Ramana Rao had detected some faults in the maintenance of accounts. When he protested he was told that he would be committing another offence if he refused to sign the papers. He. therefore, signed the papers as requested. He did not read the contents of the Papers nor was he given copies of those papers. Next day again PW 1 came and took his signatures on some more papers. Then also he was not given copies of the papers signed by him. On the 17th he received two notices from the office of the Director of Medical Services to furnish details and particulars of purchases for the drugs claimed to have been seized from the shop. In fact, no drugs were seized from the shop. As there was no seizure of any drugs from the shop he was unable to send any reply immediately. As he was away from Hyderabad for some time A-3 sent a reply asking for some time. Again on 30-10-1968 PW 1 came and took his signatures on some more papers. He did not read those papers and no copies were given to him.

3. The learned Magistrate acquitted the accused on the ground that the seizure of the drugs from the shop of the accused could not be said to be established in view of the failure of the prosecution to examine the Ranch witnesses. The learned Magistrate also held that there was failure to comply with the provisions of the Criminal Procedure Code relating to searches. The learned Magistrate also held that the Drugs Inspector was not justified in taking the signatures of A-2 on the panchanamas and the receipts. The State has preferred the present appeal.

4. The reasons given by the learned Magistrate for acquitting the accused appear to bear no scrutiny whatever. The learned Magistrate was wrong in thinking that there was anything objectionable in the Drugs Inspectors taking the signature of the accused on the Panchanama or on the receipt. The learned Magistrate referred to a decision of the Andhra Pradesh High Court which has no application whatever. That was a case in which a police officer had taken the signature of the accused on a panchanama containing a confession of the accused leading to the discovery of some evidence. A Police Officer is prohibited by statute from taking the signature of an accused or even a witness on a statement made by him during the course of investigation. A Police Officer cannot circumvent the statutory provisions by calling it a panchanama. On the other hand when a search of a premises is made and certain things are seized from the premises in the course of the search the Officer making the search is bound to prepare a list of the things seized and deliver a copy of the list to the occupant of the premises. That is provided by Section 103. Cr. P.C. There is nothing objectionable if the signature of the occupant, even if he is an accused, is obtained in token of having received a copy of the list. Under the Drugs and Cosmetics Act there is no provision which prohibits a Drugs Inspector from taking the signature of a witness or an accused on any statement made by him. In the present case, the signature of A-2 were not even taken on any statements made by him. The signatures were taken merely to acknowledge the receipts of copies of search lists and the notices issued to the accused. I do not see anything objectionable in the conduct of the Drugs Inspectors in taking the signatures of A-2 on these documents.

5. The learned Magistrate was also wrong in holding that the seizure of the drugs from the shop of the accused was not proved merely because the two panchayatdars were not examined. There is no reason why they were not examined. There is no reason why the evidence of the two Drugs Inspectors, PWs. 1 and 2 should be treated with suspicion. They cannot be called partisan witnesses. They were merely discharging their duties. Apart from their evidence there is also the evidence of P. W. 3 who assisted PWs. 1 and 2 in the search. P. W. 3 is the Sub-Inspector of the C. I. D and must be considered to be an independent witness. In addition to the evidence of PWs. 1 to 3 we have the fact that A-2 himself affixed his signature on the several panchanamas and receipts. The explanation of the 2nd accused that he went on signing every paper that he was asked to sign by the Drugs Inspector is most unconvincing. He is not an illiterate person. He holds a licence under the Drugs and Cosmetics Act and he knows the significance of being in possession of unauthorised drugs and subscribing to a document which mentions such possession. The explanation of A-2 is unacceptable. When a notice was issued to the firm to disclose the names and addresses of persons from whom the drugs were purchased and to produce the bills the firm did not send a reply giving the particulars asked for. On the other hand. A-3 sent a reply saying that some time may be granted for furnishing particulars. Even afterwards no reply was sent. When the notices were received from the Drugs Inspector asking the particulars of purchases the firm and particularly A-2 should have protested that no drugs were seized as mentioned in the notices. Nothing of the sort was ever done. I have no doubt that the seizures from the shop of the firm are thus. If the learned Magistrate thought that the evidence of the panchayatdars was necessary he should have; taken steps to examine them as Court witnesses. The prosecution had informed him that they had turned hostile and there was, therefore no purpose in the prosecution examining them as their witnesses. If their evidence was considered necessary it was up to the learned Magistrate to examine them as Court witnesses. I do not think that the examination of the Panchayatdars as witnesses would have served any purpose in the present case.

6. The learned Magistrate also appears to have thought that there was a failure to observe the provisions of the Criminal Procedure Code in regard to the searches since the Drugs Inspector failed to record the reasons for the search before making the search. Section 22(2) of the Drugs and Cosmetics Act prescribes that the provisions of the Criminal Procedure Code shall, so far as may be, apply to any search or seizure under Chapter IV of the Drugs and Cosmetics Act as they apply to any search or seizure made under the authority of a warrant issued under Section 98 of the said Code. In other words the search or seizure made by a Drugs Inspector is equated to the search and seizure made under the authority of a warrant issued under Section 98 Criminal P.C. Where a search is made under the authority of a warrant issued under Section 98, Criminal P.C. it is unnecessary to record the reasons. It is only when he is compelled to make a search in the course of an investigation, without the warrant of, a Magistrate that he has to record in writing the reasons for the search. Since under the Drugs and Cosmetics Act a search or seizure by a Drugs Inspector is equated to a search and seizure under the authority of a warrant it is not necessary for a Drugs Inspector to record his reasons, for making a search.

7. The next question for consideration is what, are the offences committed by the accused who had stocked for sale mis-branded drugs within the meaning of Section 17(e) of the Drugs and Cosmetics Act and therefore contravened Section 18(a)(ii) of the Act under Section 17(e) a drug shall be deemed to be mis-branded if it is not labelled in the prescribed manner. It is not shown that any of the drugs seized from the accused were not labelled in the prescribed manner. The accused are therefore not shown to be guilty of a contravention of Section 18(a)(ii).

8. The second charge was that the accused stocked for sale drugs not intended for sale in contravention of Section 18(a)(vi) read with Rule 65 (17) Rule 65 (17) prohibits the sale or stocking of a drug in violation of any statement or direction recorded on the label or wrapper Several of the drugs seized from the accused contained labels 'Physician's sample not for sale.' The sale of such samples would therefore be a contravention of Rule 65 (17). The learned Counsel however urged that all that was established against the accused was that the accused had stocked these medicines and in that they had sold the medicines. The label did not prohibit the stocking of the drugs. It only prohibited the sale of the drugs. He therefore urged that there was no contravention of Rule 65 (17). I am not prepared to agree with the learned Counsel. I am of the view that the word 'stocked' in Rule 65 (17) means 'stocked for sale' and that stocking for sale of drugs not meant to be sold is a violation of Rule 65 (17). 1 hold that the offence under Section 18(a)(vi) read with Rule 65 (17) is established.

9. The third charge against the accused was that the accused failed to maintain records of purchase of drugs in contravention of Section 18(a)(vi) read with Rules 65 (4) and 65 (5) (3). The submission of the learned Counsel was that there was no proof of any purchase of the seized drugs by the accused and therefore the offence of failing to maintain records of purchase was not established. I am of the view that having regard to the enormous quantity of drugs which was seized from the shop the Court may safely presume that the drugs must have been purchased by the accused. There was therefore failure to maintain records of purchase. The learned Counsel also urged that there was no evidence that the drugs were stocked for sale. Again the quantity of the drugs is itself sufficient to lead to the inference that the drugs were stocked for sale. I, therefore, hold that there was a contravention of Section 18(a)(vi) read with Rules 65 (4) and 65 (5) (3).

10. The last charge was that the accused failed to disclose the names, addresses and other particulars of the persons from whom the drugs were acquired and there was thus a contravention of Section 18(A) of the Act. This offence is clearly established since neither before the trial nor at the trial the accused made any attempt to disclose the particulars of the persons from whom the drugs were acquired.

11. In the result, each of the four respondents is convicted under Section 27(b) read with Section 18(a)(vi) and Rule 65 (17), Section 27(b) read with Section 18(a)(vi) read with Rules 65 (4) and 65 (5) and Section 28 read with Section 18-A of the Drugs and Cosmetics Act. Each of the accused is sentenced to pay a fine of Rs. 100/- for the offence under Section 27(b) read with Section 18(a)(iv) and R.65 (17) and in default of payment of fine the accused will undergo simple imprisonment for a period of one month. Each of the accused is sentenced to pay a fine of Rupees 100/- for the offence under Section 27(b) read with Section 18(a)(vi) and Rules 65 (4) and 65 (5) (3) and in default of payment of fine the accused will undergo simple imprisonment for a period of one month. Each of the accused is sentenced to pay a fine of Rupees 300/- for the offence under Section 28 read with Section 18(a) of the Act and in default of payment of fine the accused will undergo simple imprisonment for a period of three months. The appeal is allowed accordingly.


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