JUDGMENT

PRADIP MOHANTY, J. — This revision is directed against the judgment dated 24.11.2000 passed by the learned Addl.Sessions Judge, Kendrapara in Criminal Appeal No.46 of 1995, confirming the judgment of conviction and order of sentence passed by the J.M.F.C., Kendrapara in 2(c) C.C. Case No.15 of 1991/Trial Case No.264 of 1995.

2. The case of the prosecution is that the accused-petitioner was the proprietor of M/s. Sarala Pharmaceuticals, a retail medicine store, situated at Marsaghai. On 15.02.1991 at 1.00 P.M. ,the complainant-Drug Inspector along with Assistant Controller of Drugs, Bhubaneswar inspected the firm of the ac¬cused-petitioner. He found that the drug licence of the said firm was valid up to 31.12.1989 and not renewed thereafter. The regis¬tered pharmacist, who was managing the firm, had resigned on 03.09.1988 and thereafter the accused-petitioner had not appoint¬ed any other pharmacist. He also noticed that the accused-petitioner was not maintaining the registers meant for recording the supply of drugs as well as the records for purchase of drugs intended for sale. The complainant verified the sales, cash/credit memos of some of the agencies and noticed that the accused-petitioner had purchased and sold the scheduled drugs in absence of qualified person (pharmacist). On being asked by the complainant, the accused-petitioner also failed to produce the register and documents as prescribed under Rule 65 of the Drugs and Cosmetics Rules, 1945. Hence, the complainant seized 27 items of drugs and documents of the firm and lodged prosecution report against the accused-petitioner for contravention of Sections 18(a)(vi) and 18-B of the Drugs and Cosmetics Act, 1940 punishable under Sections 27(d) and 28-A of the said Act respec¬tively. The learned Magistrate on receipt of the prosecution report took cognizance under the above sections.

3. The plea of the accused-petitioner is one of complete denial of the allegation.

4. In order to prove its case, prosecution examined as many as six witnesses and exhibited seven documents along with seizure list and cash memos. The defence examined none.

5. The learned J.M.F.C. Kendrapara, who tried the case by his judgment dated 28.11.1995 convicted the accused-petitioner under Sections 27(d) and 28-A of the Drugs and Cosmetics Act and for the offence under Section 27(d) sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default rigorous imprisonment for another month, and for the offence under Section 28-A sentenced him to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of one month. Against the said judgment and order of conviction, the accused-petitioner preferred Crl. Appeal No.46 of 1995 before the learned Additional Sessions Judge, Kendrapara, who after hearing the parties dismissed the same and upheld the judgment of conviction and sentence passed by the trial Court.

6. Mr. Panda, learned counsel for the petitioner submits that the drug licence of the petitioner was valid up to 31.12.1989. As the licence was not renewed, the petitioner closed the shop. Although there was stock of medicines, the petitioner was not selling the same. The prosecution has not produced any material to show that the petitioner was selling medicines after 31.12.1989. He further submits that the search and seizure was not effected in accordance with the provisions of law as enunci¬ated in the Criminal Procedure Code in view of the admission of P.W.1, the Drug Inspector, in his cross-examination at Para 18 that he did not associate any independent witness at the time of search and seizure. Further, there was no valid sanction for the prosecution. Therefore, the entire prosecution case is vitiated. The appellate Court without considering the evidence on record in proper perspective confirmed the judgment and order of convic¬tion passed by the trial Court, which is illegal and liable to be set aside.

7. Mr. Mishra, learned Additi