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High Court Of Orissa
P. K. MISRA
KAILASH CHANDRA DAS - Appellant
Versus
STATE OF ORISSA - Respondent
CRIMINAL REVISION 244 Of 1995
Decided On : 12/23/1998
DRUGS AND COSMETICS ACT, 1940 - SECTION 27(D) AND 28 - SEARCH AND SEIZURE - IDENTITY OF SHOP - INDEPENDENT WITNESSES - LIST OF DRUGS NOT TO BE STOCKED - SERVICE OF NOTICE - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, a medicine shop owner, was convicted under Sections 27(d) and 28 of the Drugs and Cosmetics Act, 1940, for stocking and exhibiting scheduled drugs without a valid license and failing to disclose the source of purchase. He challenged the conviction, arguing that the identity of the shop searched was not established, the search and seizure were not conducted in the presence of independent witnesses, there was no evidence that the drugs were stocked for sale, and the list of drugs not to be stocked was not mentioned in the license.
Finding of the Court:
The court found that the prosecution failed to establish the identity of the shop searched beyond a reasonable doubt, as the search was conducted in the absence of independent witnesses and the shop owner was not present. The court also held that the prosecution failed to prove that the drugs were stocked for sale, as the quantity of drugs seized was not minimal and the license did not specify the list of drugs that could not be stocked.
Issues: 1. Whether the identity of the shop searched was established beyond a reasonable doubt. 2. Whether the search and seizure were conducted in the presence of independent witnesses. 3. Whether there was evidence that the drugs were stocked for sale. 4. Whether the list of drugs not to be stocked was mentioned in the license. 5. Whether the notice calling upon the accused to indicate the source from which the medicines had been purchased was served on the accused.
Ratio Decidendi: 1. The court held that the prosecution failed to establish the identity of the shop searched beyond a reasonable doubt, as the search was conducted in the absence of independent witnesses and the shop owner was not present. The court relied on Section 100 of the Code of Criminal Procedure, which requires the presence of independent witnesses during search and seizure. 2. The court held that the prosecution failed to prove that the drugs were stocked for sale, as the quantity of drugs seized was not minimal and the license did not specify the list of drugs that could not be stocked. 3. The court held that the prosecution failed to prove that the notice calling upon the accused to indicate the source from which the medicines had been purchased was served on the accused, as there was no evidence of acknowledgment or receipt of the letter.
Final Decision: The court allowed the criminal revision petition and acquitted the petitioner of the charges under Sections 27(d) and 28 of the Drugs and Cosmetics Act, 1940.
P. K. MISRA, J.
( 1 ) THE petitioner has been convicted under Section 27 (d) and 28 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the "act") and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for four months under the former charge and rigorous imprisonment for two months under the latter charge. Both the sentences were directed to run concurrently. The said order of conviction and sentence having been confirmed by the appellate Court, the present revision has been filed.
( 2 ) THE prosecution case is as follows :- The accused is the proprietor of M/s. Das Ausadhalaya, a medicine shop in village Indupur. On 8-8-1988, the Drugs Inspector (P. W. 1) along with the Assistant Drugs Controller (P. W. 3) raided and searched the medicine shop of the accused who was not present at the time of search. The shop was being managed by the salesman (P. W. 2 ). In course of search, it was found that the accused had stocked and exhibited the scheduled drugs for sale which he was not entitled under the provisions of licences, Exts. 9 and 10, granted to him. The accused was called upon by registered letter (Ext. 6) to produce the details of purchase of the scheduled drugs, but he failed to disclose the name of the manufacturer. It was, therefore, alleged that the accused had committed offences under Sections 27 (d) and 28 of the Act.
( 3 ) THE plea of the accused was one of denial. It was pleaded that his shop had not been raided and P. W. 2 was not a salesman. One defence witness was examined in support of the plea of the accused.
( 4 ) THE prosecution examined apart from the three witnesses already introduced, the Proprietor of M/s. Sarojini Medicine Store (P. W. 4) of Pattamundal to prove search and seizure and the sale of medicines to M/s. Das Ausadhalaya. Relying upon the evidence of P. Ws. 1, 2 and 3, the trial Court found that the medicine shop of the petitioner had been searched and the drugs as per M. Os. I to XXII had been seized vide Seizure-list (Ext. 1 ). It was further found that the accused was not authorised to stock the scheduled drugs and as such, he was liable under Section 27 (d) of the Act. It was also found that the accused had not disclosed the name of the manufacturer from whom the scheduled drugs had been purchased, thereby committing an offence under Section 28 of the Act. These findings have been confirmed by the appellate Court.
( 5 ) THE learned counsel for the petitioner has raised the following contentions :- (1) The licences as per Exts. 10 and 11 indicate the Khata number and plot number on which the shop of the petitioner was located, but the prosecution has not tried to establish the identity of the shop searched; (2) The search and seizure were not effected in presence of any independent witnesses and since the question of identity was involved, the petitioner has been prejudiced due to such infraction of the provision contained in Section 100, Code of Criminal Procedure; (3) There is no evidence on record to indicate that the medicines allegedly seized had been stocked or exhibited for sale; and (4) In the licences produced by the prosecution, the list of medicines which could not be stocked, had not been indicated. The learned counsel for the State has supported the reasonings of both the Courts below.
( 6 ) CONTENTION Nos. 1 and 2 being inter-connected are taken up together. The question is relating to identity of the shop from which the drugs were allegedly seized. P. Ws. 1 and 3, the two officials who did not know the petitioner, went to the shop of the petitioner for the first time and as such, they had no personal knowledge as to whether the shop from which the medicines were seized belongs to the petitioner or to any other person. As the khata number and plot number had been indicated in the licences, the identity of the shop could have been established beyond reasonable doubt through the help
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