State, through Medha Dessai, Drug Inspector vs Vinod Sharma

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 750

In the High Court of Bombay at Goa
U.V. BAKRE, J.
State, through Medha Dessai, Drug Inspector
Versus
Vinod Sharma & Another
Criminal Appeal No. 4 of 2013
Decided on: 25-03-2014

Advocates Appeared:
For the Appellant: D. Lawande, Additional Public Prosecutor.
For the Respondents:J.J. Mulgaonkar, Advocate.

Headnote:Drugs & Cosmetics Act, 1940 - Section 27 Ingredients. In instant case, it was held that Section 27 postulates three separate categories of cases and no other (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. Unless all these ingredients are satisfied, provisions of Section 27 of the Act would not be applicable to instant case. After receiving report from public analyst, the Drugs Inspector had filed complaint against the appellant. Charges were framed against him for offences under Sections 27(a)(i) and 27(a)(ii) of the Act and under Section 28 r/w Section 18-A of the Act. There was no evidence to show that the appellant had any shop or that he was a distributing agent and that only the tablets were recovered from his possession. It was urged that possessions impliciter of the tablets of any quantity whatsoever would not fall within the mischief of Section 27 of the Act. The Apex Court held that the words used in Section 27 namely "manufacture for sale, sells" have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale." Thus, it was found that the section postulates three separate categories of cases and no other : (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, Section 27 of the Act would not be attracted. The Apex Court held that before a person can be held liable for prosecution or conviction under Section 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The Apex Court held that possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act.
Drugs & Cosmetics Act, 1940 - Sections 27(b)(ii) and 18(c) Drugs and Cosmetics Rules, 1945, Rule 62 Illegal sale of drugs. Where drugs were found on mezzanine floor of the shop of accused No. 1 and admittedly he had licence for distribution of said drugs, his acquittal was held to be justified. In the present case though the drugs were found on the mezzanine floor of the shop of the accused No. 1, admittedly he had licence for distribution of the said drugs and they were to be distributed at Karwar and were stocked in the shop during transit. It is an admitted fact that under the said licence, the accused No. 1 could distribute the said drugs anywhere in India. There was absolutely no evidence on record to establish that the said drugs were exhibited for sale or were offered for sale or were actually sold in that shop. Thus, the trial Magistrate has rightly relied upon the above case. Mere possession of drugs cannot be punishable under the provisions of the Act.

JUDGMENT

1. Heard Mr. Lawande, learned Additional Public Prosecutor (A.P.P., for short), appearing on behalf of the appellant and Mr. Mulgaonkar, learned Counsel appearing on behalf of the respondents.

2. This appeal is preferred by the State against the judgment and order dated 28/10/2010 passed by the Judicial Magistrate, First Class, Mapusa ('Trial Magistrate') in Criminal Case No.91/S/2007/B thereby acquitting the respondents (accused persons) of the offence punishable under Section 27(b)(ii) read with Section 18(c) of the Drugs and Cosmetics Act, 1940 ('the Act' for short).

3. The Drugs Inspector, Panaji, Mrs. Medha Dessai had filed a private complaint against both the accused persons for contravention of Section 18(c) punishable under Section 27(b)(ii) of the Act. The case of the complainant was as follows:-

The accused no.1 was running the Shop No.4 situated in Calangute Residency at Calangute and accused no.2 was the lessee of the said shop taken from Goa Tourism and Development Corporation. On receipt of information that illegal sale of Ketamine Hydrochloride Injections has been going on at the Calangute Beach area, the complainant along with Drugs Inspector Mrs. Jyoti Sardessai and Assistant Drugs Controller Mr. Salim Veljee and panch witnesses namely, Anil Narayan Raut and Ramnath Harish Anvekar, conducted a raid of the said shop no.4 of the accused on 06/01/2005. The mezzanine floor of the said shop was searched and Ketamine Hydrochloride Injections IP under brand name “Suket Injection” bearing Batch No.S-4177, M.D.-Oct., 04, E/D. Sept., 06, MRP Rs.110/- manufactured by M/s. Sunand Pharmaceuticals Private Ltd, Vasai in quantity of 4056 x 10 ml vials, were found stocked in five boxes. The said stock of injections was brought down the mezzanine loft and sample of the said drug was drawn, for the purpose of analysis. It was alleged that the accused persons were engaged in the business of sale of said drugs and had stocked the said drugs at their premises for sale without valid licence.

4. Charge was framed for contravention of section 18(c) punishable under section 27(b)(ii) of the Act and explained to both the accused persons and they pleaded not guilty and claimed to be tried. The prosecution examined the complainant Mrs. Medha Dessai as PW1; Shri Ramnath Anvekar, one of the panch witnesses as PW2; Mrs. Jyoti Sardessai, Drugs Inspector as PW3; Mr. Ravindra Shah, the Assistant Drugs Controller, Karwar, as PW4; Mr. Salim Veljee, the then Assistant Drugs Controller for FDA as PW5. The statement of the accused persons under Section 313 of Cr. P.C. came to be recorded. The case of the accused no. 2 was of denial simpliciter, whereas the accused no.1 stated in his statement that the injections attached in the case were stocked in transit and they were neither exhibited for sale nor were sold in the premises. The accused no.1 alleged that he was holding wholesale licence under the Drugs Act at Karwar and he intended to take those drugs to Karwar.

5. Upon consideration of the entire evidence on record, the learned Trial Magistrate found that the accused no.1 had licence for wholesale distribution of drugs issued by the Assistant Drugs Controller, Uttar Kannada at Karwar and admittedly, the person holding wholesale distribution licence, could distribute drugs anywhere in India and distribution licence of accused no.1 was valid from 18/08/2004 till 17/08/2009. The Trial Magistrate further held that mere possession of drugs was not punishable under any of the provisions of the Act. The learned Magistrate relied upon the case of “Mohd. Shabbir Vs. State of Maharashtra”, [1979 Cri. L. J. 466]. Therefore accused no. 1 was held not guilty. Insofar as the accused no.2 was concerned, the Trial Magistrate found that he was original lease holder of Shop No.4 having taken lease from Goa Tourism and Development Corporation. It was found that there was no evidence to show that the accused no.2 had shared common intention to stock the drugs

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2014 Supreme(Bom) 750

In the High Court of Bombay at GoaU.V. BAKRE, J.State, through Medha Dessai, Drug Inspector Versus Vinod Sharma & Another Criminal Appeal No. 4 of 2013 Decided on: 25-03-2014

Cases Referred (2)

In the High Court of Bombay at Goa
U.V. BAKRE, J.
State, through Medha Dessai, Drug Inspector
Versus
Vinod Sharma & Another
Criminal Appeal No. 4 of 2013
Decided on: 25-03-2014