SHORT NOTE
CHHATTISGARH HIGH COURT
Sanjay K. Agrawal, J.
Anil Kumar Jain —Applicant
versus
State of Chhattisgarh —Respondent
Criminal Revision No.452 of 2003
Decided on 15.7.2014

IMPORTANT POINT
Before a person can be 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 possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act.

Headnote:Drugs and Cosmetics Act, 1940 — Section 27(b)(ii) r/w 18(c) — Scheduled drugs recorded and seized from a shop and petitioner was present in shop conducting business — Petitioner failed to produce drug licence, purchase bills and details of sale of seized drugs — Conviction by Court below — Revision — Prosecution has to prosecution has to positively prove that accused was manufacturing the drug for sale or was selling the same or was stocking same or exhibiting drug for sale — Witness only stated that drugs were recovered from possession of petitioner in his shop — None of them stated that scheduled drugs were either actually being sold or were stocked/exhibited for purpose of sale — Possession simplicitor of said scheduled drugs was not punishable — Conviction was liable to be set aside.

       Held: Thus, in light of the statutory provision contained in Section 18(c) of the Act, 1940, i.e., the provision relating to prohibition of manufacture, sale, stocking/exhibiting for sale or distribution of a drug/cosmetic except under, and in accordance with the conditions, of, a licence issued therefor and also having considered the penal provision in this regard and the. parameters laid down by their Lordships of the Supreme Court to establish the offence under Section 27(a)(i)(ii) read with Section 18(c) of the Act, 1940, falling back to the facts of the instant case, it would appear that the prosecution seized (Ex.Pl) some scheduled drugs like Dettol, Boric Acid, Eucalyptus Oil and Chlorom Phenicol from the applicant. Drug Inspector Manmohan Molasariya (PW2), Incharge Senior Drug Inspector Hargovind Koshthi (PW3) and Sample Assistant S.K. Mukherjee (PW4), who conducted the search in the shop M/s. Jai Hind Stores, have been examined. All of them have simply stated that the scheduled drugs were recovered from the possession of the applicant in the shop, but in the statements before the Court they have not stated that the scheduled drugs were either actually being sold or they were stocked/exhibited for the purpose of sale. It appears that there is no evidence to show that the present applicant had either got the possession of aforesaid scheduled drugs for the purpose of sale or was selling the said drugs or had stocked/exhibited the said drugs for sale and, therefore, the possession simpliciter of the aforesaid scheduled drugs is not punishable under Section 27(b)(ii) of the Act, 1940. Apart from this, it is not the case of the prosecution that the search was conducted on a complaint of manufacture for sale or of sale or of stocking/exhibiting for sale of a drug, but, it is the case of the prosecution that Diuesh Kendua Malham was being sold contrary, to the provisions of the Act, 1940 and, therefore, the search was made. Therefore, on the face of the record, the essential ingredients to constitute the offence under Section 27 of the Act, 1940 are not available and established. Therefore, the conviction awarded to the applicant for offence under Section 27(b )(ii) of the Act, 1940 for violation of Section 18(c) of the Act, 1940 cannot be sustained and is hereby set aside.

       (ii) Drugs Cosmetics Act, 1940 — Section 27(b)(ii), 18(a)(vi) and 28 — Recovery and seizure of scheduled drugs from business shop of petitioner — Petitioner as well his father who was proprietor of shop business failed to produce drug licence, source of purchase — Conviction of petitioner u/s 28 of the Act with sentence of fine of Rs.1000/- for violation of section 18(a)(vi) called for no intervention.

       Result: Revision allowed partly.