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1994 Supreme(Bom) 140
IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
The State of Maharashtra... Appellant.
Versus
Jethmal Himatmal Jain and another.... Respondents.
Criminal Appeal No. 249 of 1985, decided on 22/25-3-1994.
Advocates appeared :
D.T. Palekar, A.P.P., for the appellant-State 1.
C.S. Gosaliya, for respondent No. 1.
V.B. Ganatra, for the respondent No. 2.
Headnote:
DRUGS AND COSMETICS ACT - SECTION 27(A)(I), 27(B) - RULES 65(18), 65(IV) - POSSESSION OF SPURIOUS AND SUB-STANDARD DRUGS - PROMISSORY ESTOPPEL - APPLICABILITY - APPEAL AGAINST ACQUITTAL - MAINTAINABILITY - SECTION 378(1), 378(4) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 32 OF THE DRUGS AND COSMETICS ACT, 1940 - CRIMINAL LIABILITY OF THE PROPRIETOR AND MANAGER OF THE SHOP - SECTION 18 OF THE DRUGS AND COSMETICS ACT, 1940 - SEARCH AND SEIZURE - SECTION 114(G) OF THE EVIDENCE ACT, 1872 - DELAY IN FILING APPEAL - SECTION 378(1) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - TWO VIEWS POSSIBLE - BENEFIT OF DOUBT TO THE ACCUSED.
Fact of the Case:
The accused, a chemist and proprietor of a medical store, was found in possession of spurious and sub-standard drugs. He was convicted under sections 27(a)(i), 27(b), 65(iv), and 65(18) of the Drugs and Cosmetics Act, 1940, and sentenced to one year's rigorous imprisonment and a fine of Rs. 2,000. On appeal, the conviction was set aside on the ground that the accused had made an offer to the Government to surrender his license in return for the withdrawal of the charges against him, and that the Government was estopped from proceeding with the prosecution. The State appealed against the acquittal.
Finding of the Court:
The High Court held that the doctrine of promissory estoppel did not apply to the facts of the case, as the accused could not alter his position to his detriment by offering to surrender his license, which was liable to be canceled in any case. The Court also held that the appeal was maintainable under section 378(1) of the Code of Criminal Procedure, 1973, as the prosecution was instituted by the State and not by the Drugs Inspector. The Court further held that the accused was liable for the offenses committed in his shop, even though he was not present at the time of the raid, as he was the proprietor of the business and had knowledge of the presence of the offensive drugs. The Court also rejected the defense that the drugs were planted by the Drugs Inspector, holding that the evidence established the offense conclusively. The Court also held that the delay in filing the appeal did not bar the prosecution, as the accused had not been prejudiced by the delay.
Issues: 1. Whether the doctrine of promissory estoppel applied to the facts of the case? 2. Whether the appeal was maintainable under section 378(1) of the Code of Criminal Procedure, 1973? 3. Whether the accused was liable for the offenses committed in his shop, even though he was not present at the time of the raid? 4. Whether the defense that the drugs were planted by the Drugs Inspector was tenable? 5. Whether the delay in filing the appeal barred the prosecution?
Ratio Decidendi: 1. The doctrine of promissory estoppel does not apply to criminal cases, as it would allow accused persons to escape punishment by making offers to the prosecuting authorities. 2. An appeal against acquittal is maintainable under section 378(1) of the Code of Criminal Procedure, 1973, where the prosecution is instituted by the State, even though the complaint was filed by the Drugs Inspector. 3. The proprietor of a business is liable for offenses committed in his shop, even if he is not present at the time of the offense, if he has knowledge of the presence of the offensive material. 4. The defense that the drugs were planted by the Drugs Inspector is not tenable, where the evidence establishes the offense conclusively. 5. The delay in filing an appeal does not bar the prosecution, where the accused has not been prejudiced by the delay.
Final Decision: The appeal was allowed, the order of acquittal was set aside, and the conviction and sentence imposed by the trial court were restored.
M.F. SALDANHA, J.:---Cases involving racketeering in life saving drugs or trading in spurious medicinal preparations for what matter, require special consideration particularly where it is demonstrated that there has been a compromise in quality or adulteration of the Drugs. Many precious lives have been lost due to spurious preparations having been administered and it is a matter of little consequence whether the fault can be traced to the manufacturer, to the intermediary or to the dealer. These are crimes against humanity and the law must approach them with a degree of utmost firmness if the rackets are to be contained and snuffed out. Even at the risk of sounding ruthless, it will have to be stated that if a gradation of anti-social offences were to be done, this category would probably top the list.
2. The situation becomes all more distressful when it is disclosed that the offender is being shown sympathetic consideration by the very public authorities in whom the sacred task of safeguarding public safety is entrusted. Instances are not wanting where an unscrupulous trader even after having been booked, approaches the top authorities in the Government and they in turn agree to condone the lapse for reasons that are not difficult to understand. The conduct of such Government authorities in whitewashing grave crimes requires to be taken serious note of by the Courts because on the one hand it is completely demoralising to point of total frustration for the Enforcement Officers who see the criminal go scot-free because of the contacts at the higher level and more importantly because it is an assurance and an insurance to that and all other similarly placed criminals that such lucrative rackets are quite safe.
3. In the instant case, the accused had boldly contended that he entered into an understanding with the Government that the cases filed against him by the Drugs Administration authorities for being found in possession and dealing with spurious and sub-standard drugs would be withdrawn if he agrees to surrender his licence after a particular date. Whether the licence was to be re-issued in some other name is not very clear but the fact remains that such horse trading had not only taken place but has been boldly pleaded before the Court and the amazing plea put-forward in law was that since the accused abided by his part of the contract or the understanding that the Government was estopped from proceedings with the prosecution and on the bar of promissory estoppel, the conviction ought to be set aside. What is even more unfortunate, is that the Appeal Court in this case has upheld the plea though it must be said with some degree of satisfaction that the Department has appealed against that order and brought the entire sordid episode to the notice of this Court.
4. The proceeding is an old one having commenced in the year 1974 but that aspect is of little consequence because the issues involved are of such far-reaching public importance that they require to be dealt with in all seriousness. Firstly, the facts :
5. This appeal is directed against a judgment of the learned Additional Principal Judge (as then he was) of the Court of Sessions for Greater Bombay, which is dated 7th January, 1985. The present respondents who were the original accused Nos. 1 and 2 in Criminal Case No. 31/S/77 had been convicted by the learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay. Originally five accused had been charged with offences under sections 65(18) read with 18(c) and 27, 18-A(ii) read with 27, 18-A(i)(ii) read with 27, Rule 65 read with section 27 of the Drugs and Cosmetics Act. This Court had quashed the proceedings against the original accused Nos. 3 to 5. The trial Court convicted accused Nos. 1 and 2 for the offences punishable under section 27(a)(i), read with 18(a)(ii) of the Drugs and Cosmetics Act and sentenced them to one year rigorous imprisonment and to pay a fine of Rs. 2,000/- in default to undergo two
