B.C. Chakrabarti, J.
1. This is an appeal against an order of conviction under Section 18(c) read with Section 27(a)(ii) of the Drugs and Cosmetics Act, 1940. The appellant having been found guilty has been sentenced to simple imprisonment for 3 months with a fine of Rs. 300/- in default simple imprisonment for 15 days.
2. Upon perusal of the monthly statement of sessions cases indicating that there has been a sentence of simple imprisonment for 3 months and a fine of Rs. 300/- for an offence under the Drugs and Cosmetics Act, there was an order calling for the records of the case. There was however, no order issuing any Rule to show cause why the sentence should not be enhanced.
3. The appellant is a registered medical practitioner. The prosecution case in brief is as follows :-
Pursuant to a secret information obtained by S.I.B. Raha (PW 9) of the Enforcement Branch of the Calcutta Police, he along with constable A. Biswas (PW 4) and another constable Mukul Dey (not examined) 'kept waiting on B, B. Ganguli Street from 8-30 a.m. in the morning of 21-6-1976. While on duty they found the accused proceeding along the northern pavement of the street. He was carrying a brief case (Material Ext. I) and a kit bag slung from his shoulder (Material Ext. II). When he came near 156, B.B. Ganguli Street the police party surrounded the accused in presence of witnesses and on search of his brief case and the kit bag various items of medicines detailed in the F.I.R. were recovered. The accused could not produce any licence or any voucher for the possession of such a large quantity of drugs. He was arrested and eventually a case was started against him. On the same day a search was conducted at the residence of the accused but nothing incriminating was found a 'nil' seizure list (Ext. 4) was prepared. The seizure, list in respect of the drugs found in the possession of the accused has been marked Ext. 3.
4. In support of the prosecution case 9 witnesses including S.I. Raha who lodged the formal F.I.R. were examined. The defence did not examine any witness. The defence case however, as it appears from the trend of cross-examination and the statement made by him under Section 313, Cr. P.C. is as follows:-
Nothing incriminating was actually found from the possession of the accused on B.B. Ganguli street as alleged and he has been falsely implicated in this case out of grudge. The precise case of the accused as to why he has been falsely implicated, has been elaborately stated in his statement under Section 313, Cr. P.C. According to the statement P.W. 3 and some others one day accosted him while he was going towards Sealdah and offered to sell some medicines at cheap rate but without any cash memo. The accused did not accept the offer but went to the office of the Enforcement Branch on 15-6-1976 and made a complaint to S.I. Raha against P.W. 3 and others. On 17-6-1976 the accused was threatened by those young people for having complained against them whereupon he visited the office of the Enforcement Branch once again and told the S.I. that unless something was done he would be constrained to inform the Superior Officers of the S.I. The S.I. assured him that the steps would be taken and persuaded him not to go to the Superior Officer. But on 21-6-1976 at about 1.3o P.M. the S. I. came to the residence of the accused, wanted to see some packets of medicines which he had kept there, and checked them with the cash memos therefor and then finding that one or two items were not covered by the cash memos, demanded some illegal gratification. On the refusal of the accused to oblige him, the accused was arrested and taken to the office of the Enforcement Branch. There he was physically assaulted by P.W. 4 and his signatures were taken on some blank papers. The allegation that he was arrested on his failure to produce any licence for his possession of the medicines at B.B. Ganguli Street was denied.
5. Upon a consideration of the evidence on record the learned Judge found that the accused had been carrying 16 varieties of drugs in large quantities in the kit bag and the brief case that he was arrested on B.B. Ganguli Street with the stock of the said medicines, that he had no licence for such stock and that the stock was intended for sale. Upon such findings the learned Judge convicted the accused and sentenced him in the manner aforesaid.
6. Section 18(c) of the Act provides that no, person shall himself or by any other persons on his behalf manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug except under, and in accordance with the conditions of, a licence issued for such purpose. In the instant case the accused admittedly had no licence.
7. The penal provision is contained in Section 27, Clause (a) (ii) whereof provides that whoever manufactures for sale, sells, stocks or exhibits for sale any drug without a valid licence as required under Clause (c) of Section 18 shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 10 years and shall also be liable to fine. There is, however, a proviso which empowers the Court for any special reasons to be recorded in writing, to Impose a sentence of imprisonment of less than one year.
8. This being the material provision of law let us now see how far the prosecution has succeeded in establishing the charge against the accused. PW 1 worked as a salesman under M/s. Chakdah Tea Company at 156, B.B. Ganguli Street. On the relevant day in the month of June, 1976 he heard a 'halla' near the shop on the pavement and noticed that a person (the accused identified) was surrounded by 3 or 4 persons. The accused was carrying an attache case and a kit bag from his shoulder. The containers being opened at the instance of one of those persons a large number of packets of medicines and small phials were found inside the same. The accused on being asked said that he had no licence and no cash memo for the said medicines. Thereafter the witness left the place. Nothing material beyond this was said by him.
9. PW 2 Manik Ratan Sarkar is a retired Deputy Superintendent of the Nil Ratan Sarkar Medical College & Hospital, He said that the accused passed his M.B.B.S. examination from the said college and thereafter served as House Physician from 11-5-1975 to 31-5-1976. He said that medicines are very often stolen from the hospital stores. On receipt of a requisition on 31-12-1976 from the D.C. Enforcement Branch he verified the stocks and found that there was no shortage in the main stores. The evidence really is of no assistance either to the prosecution or the defence, for the verification was pursuant to a requisition dated 31-12-1976. This was long after the alleged recovery of the medicines from the accused in June, 1976. Therefore, the evidence of PW 2 is of a neutral character.
10. PW 3 Sarojit Kumar Biswas is an-other witness who speaks about the apprehension of the accused at B.B. Ganguli Street, recovery of large number of medicines from a brief case and an air bag carried by the accused and preparation of seizure list in respect of the same. He is a witness to the seizure list. It is also his evidence that on the enquiry by the persons who apprehended the accused, the accused gave out that he had no vouchers or licence for the medicines carried by him. It was enquired of Mm in cross-examination if he had ever sold medicines as a hawker in 1976. He denied. Nothing further was suggested to him although the case made out by the accused in his statement under Section 313, Cr. P.C. clearly is that this witness and others offered to sell medicines to him at cheap rate but without any memo. This was not put to PW 3.
11. P.W. 4 Asim Biswas is a constable of police accompanied PW 9 and apprehended the accused along with the medicines. He also says that on being asked about the contents of the brief case and the kit bag, the accused disclosed that they contained medicines which he was going to sell. The witness speaks of preparation of the seizure list by S.I. Raha. He also speaks of the visit to the residence of the accused and searches being made there although nothing incriminating was found. He could not recollect, if any, a nil seizure list was prepared. He denied the suggestion that some cash memos, bills or vouchers were seized from the residence, under assurance that receipts for the same would be granted. It is significant that no suggestion was put to this witness that he had physically tortured the accused or that the accused was made to sign some blank papers at the office. The case in that behalf as made out in the statement Section 313, Cr. P.C. appears to be developing but had not till then developed.
12. PW 5 Mahabir Prasad Agarwala also speaks of the seizure of the medicines from the person of the accused and preparation of seizure list in respect of the same. He however, did not sign the same.
13. Pw 6 Dilip Kumar Jana took samples of the medicines pursuant to orders of the learned Chief Metropolitan Magistrate dated 22-6-1976, prepared a list in the proper form and sent the same to the Government Analyst. The reports of the analyst are Ext. 8 collectively. The reports, however do not indicate that the drugs were spurious. The witness has also stated that on checking the Government records he found that no licence had been issued for storing, sale, distribution or manufacture in favour of the accused.
14. PW 7 is an Assistant of the Medical Council who proves an entry (Ext, 2) to show that the accused was a registered practitioner.
15. PW 8 Samsuddin Laskar used to run a pharmacy at Louhati where the accused attended for some time. He says that he did not provide any medicines to the patients and that he never asked Dr. Bose (accused) to bring any medicines for the pharmacy.
16. PW 9 is S.I., B. Raha. He corroborates the prosecution case of arrest of the accused on B.B. Ganguli Street along with the medicines entered on the seizure list, Ext. 3 which was prepared on the spot in presence of witnesses, namely, PW 3 and one Lakshman Singh (not examined) and others. The accused also signed on Ext. 3 after the seizure. He also speaks of the visit to the residence of the accused and preparation of a nil seizure list. He made suo motu F.I.R. Ext. 5 and also recorded entry in the G.D. Book, Ext. 6. It was suggested to him in cross-examination that 2 or 3 days prior to 21-6-1976 the accused visited the office and complained against PW Sarojit Biswas. He denied the suggestion.
17. On the evidence as it is the learned Judge found that the accused was in possession of a large quantity of medicines of different varieties, for the possession of which he could neither produce any vouchers nor any licence.
18. Learned Advocate for the appellant contended before us that the court below should have drawn an adverse presumption against the prosecution for non-examination of Lakshan Singh. It would undoubtedly have been better if the prosecution could examine Lakshan Singh. But it is not a requirement of law that all the seizure list's witnesses must be examined. At least one, namely, PW 3 has been examined in this case, The positive allegation made against PW 3 in the statement under Section 313, Cr. P.C. should have been put to PW 3. Since that was not done it appears to us that the story which the accused eventually gave out was an afterthought.
19. It was next contended that PWs 1 and 5 should have been disbelieved because they did not sign the seizure lists. They did not claim to have signed it but when a person is, apprehended on the road which is a busy thoroughfare it is likely that some people would gather round to see what was happening. It is not necessary that they must all sign the seizure list or else, their presence should be disbelieved. We see no reason to disbelieve PWs 1 and 5. They are local people and were very likely witnesses to the occurrence.
20. It was then complained that the nil seizure list Ext. 4 was a later concoction and this argument is founded on the fact that no copy of the document was supplied to the accused - under Section 173, Cr. P.C. Presumably the prosecution initially did not intend to use Ext. 4 but when the accused brought out in cross-examination that his house was searched and a seizure list was prepared they were obliged to produce the same. From the mere delayed production of Ext. 4 it cannot, be said that it was manufactured subsequently. In fact, it appears from the endorsement appearing on the document itself that it was produced before the Chief Metropolitan Magistrate on 22-6-1976. Therefore, the accused knew that there was the seizure list and was obviously not prejudiced for not supplying him with a copy of it. The production of the seizure list in the Court on the very next day is sufficient to overrule the contention that it was a later concoction.
21. It is then said that some of the medicines recovered were passing by the trade names and not by their chemical names and that many of those medicines were really covered by the drugs enlisted in Schedules 'C and 'K' of the Drugs and Cosmetics Rules and as such came within the exemption provided in Schedule 'K', Upon an examination of the Schedule with reference to the drugs seized, it appears that 3 items namely, 6, 15 and 16 were covered by Schedule 'CV If the accused claims exemption, It is for him to show that he is entitled to such exemption. There is no evidence on record to indicate that all the medicines recovered from the possession of the accused were covered by the exemptions provided in Schedule 'K'.
22. It was then contended that the finding of the learned Judge that the appellant possessed a large quantity of medicines and was carrying the same on a very busy thoroughfare where lots of hawkers and pedlars were selling their wares on the street was sufficient for holding that the accused too carried the said medicines for the purpose of sale.
23. The learned Judge in the court below has also considered the evidence that the accused said that he was going to sell the medicines. According to the learned Judge the statement did not amount to a confession and therefore was not hit by Section 25 of the Evidence Act He considered this as corroborating the conclusion already reached by him. It was argued that the observations of the learned Judge in this regard were not correct and did not reflect the true position in law. Finally, it was contended that the learned Judge in the court below went wrong in placing reliance on an earlier decision of the Supreme Court in preference to a later decision of the same Court on the same point.
24. The last point urged by the appellant in our view has some substance. It is true that some of the witnesses have said as if the accused himself gave out that he was going to sell the medicines. The question is whether such a statement if true was admissible in view of the provisions of Section 25 of the Evidence Act. The section lays down that no confession made to a police officer shall be proved as against a person accused of any offence. The Privy Council in the case of Pakala Narayana Swami v. Emperor AIR 1939 PC 47 : 40 Cri LJ 364 explained that all statements made by the accused are not confessions and that statements of incriminating facts but not amounting to confession are not hit by Section 25. The view was also approved in Palvinder v. State 1952 SCR 94 : 1953 Cri LJ 154 and again in : AIR1960SC409 . The position in law now is that admissions or statements of incriminating facts, even a gravely incriminating fact, to the police not amounting to a confession are not barred by Section 25, A somewhat different view was however expressed in the case of Prabhoo v. State : 2SCR881 . Even relying on the earlier and the generally accepted view that an admission of a fact not amounting to confession is not hit by Section 25 of the Evidence Act, we find that the statements sought to be proved really amounts to a confession. Mere stocking of medicines without licence is not the offence for which the accused was charged. The offence contemplated by Section 18(c) is stocking or exhibiting for sale. The intention to sell is an essential ingredient of the offence. The admission relates to that intention and in our view the admission of that fact strictly amounts to a confession. In that view of the matter we hold that such evidence was not admissible under Section 25 of the Evidence Act As to the allegations that the learned Judge has placed reliance on an earlier decision of the Supreme. Court in preference to a later decision it is eminently reasonable to refer to the two cases in question. The first one, Sk. Amir v. State of Maharashtra is reported to : 1974CriLJ459 . In that case the accused was apprehended by a Railway constable immediately after he had obtained delivery of a parcel containing 95,000 capsules of Seco Barbital Sodium, commonly used for intoxication. The Supreme Court held that stocking for sale is of the essence of the matter. To keep for sale is tantamount to stocking for sale. Then the Supreme Court held that the large quantity of capsules found in the possession of the appellant left no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use. On that basis the conviction was upheld. The other case relied on by the appellant, Md. Sabbir v. State of Maharashtra is reported in : 1SCR298 . In the case the appellant was found in possession of 17,000 tablets in 17 plastic containers. He was charged under Section 27(a)(i) and 27(a)(ii) of the Drugs and Cosmetics Act and also, under Section 28 read with, Section 18A of the Act. The appellant pleaded guilty to the charge, promised not to commit any offence again and pleaded for mercy. The learned Magistrate accepted the plea and imposed a sentence of imprisonment till the rising of the Court. The High Court in its revisional jurisdiction enhanced the sentence to one year's rigorous imprisonment. The appellant preferred the appeal by special leave to the Supreme Court. It was held in this case that there was no evidence to show that the appellant had either got those tablets for sale or was selling them or had stocked them for sale. Learned counsel for the State contended that where a person was in possession of a very large quantity, a presumption should be drawn that they were meant for sale or for distribution. The contention was overruled and it was held that before a person could be liable for prosecution or conviction under Section 27(a)(ii) of the Act, it must be proved by the prosecution affirmatively that he manufactured the drugs for sale, or was selling the same or had stocked or exhibited them for sale. The possession simpliciter, it was held, was not punishable under the aforesaid provisions of the Act. It is true that the earlier decision in the case of Sk. Amir v. State (supra) was not referred to nor considered in this judgment. But this being a later decision and being in conflict with the earlier, we feel we should go by the subsequent decision. In the earlier case their Lordships made a presumption from the fact of possession of 95,000 capsules that it was intended for sale. In the later case the quantity of medicines was no doubt less but by itself it was nonetheless huge and yet it was held that mere possession without more was, not sufficient to bring home the charge, in spite of the fact that the accused had in that case pleaded guilty to the charge. In the case before us nothing beyond possession has been proved. We are called upon to presume that the possession was for sale. The circumstances may appear sufficiently incriminating, namely the possession of the articles in two bags carried in a busy thoroughfare where various articles are displayed for sale but even then we may say that the circumstances at the most raise a suspicion and nothing beyond that unless, we can say that we are entitled to presume that the stocking was for sale. We feel in view of the later decision of the Supreme Court we should not be justified in making such a presumption in the absence of affirmative evidence. Therefore, even though the circumstances are sufficiently suspicious in nature, we are unable to hold that the prosecution has succeeded in establishing the charge under Section 18(c) read with Section 27(a)(ii) of the Drugs and Cosmetics Act. In that view of the matter the appeal succeeds and is hereby allowed. The order of conviction and sentence are set aside and the accused be released from the bail bond.
25. In view of the disposal of the appeal in the manner aforesaid, no further order on the criminal revision case is called for.
Jitendra Nath Chaudhuri, J.
26. I agree.