2018 (11) TMI 1832 - SC - Indian Laws

Smuggling - certain drugs were stored without a valid drug licence - contravention of Section 18(c) of the Drugs and Cosmetics Act, 1940 - non-examination of one Kamalakannan-the person in whose name the pharmacy licence stood and one Jayanthi in whose name the shop stood - Sentence of imprisonment - HELD THAT - At the time of inspection of the medical shop of the Respondent located at 191, Main Road, Bargur on 17.12.2008, it was found that the retail medical shop was functioning without a valid licence in violation of Section 18(c) of the Drugs and Cosmetics Act. It was also noticed that eighty-seven items of drugs were stocked without possessing a valid drug licence. The Respondent was prosecuted for contravention of (i) Section 18(c) of the Drugs and Cosmetics Act for having stocked and sold drugs without a valid drug licence which is punishable Under Section 27(b) (ii) of the Drugs and Cosmetics Act; and (ii) Section 18(a) of the Drugs and Cosmetics Act for not furnishing the name of the supplier of the drug which is punishable Under Section 28 of the Drugs and Cosmetics Act. Under Section 18(c) of the Drugs and Cosmetics Act, licence is required for sale of any drug. Under Section 18(c) of the Act, stocking or storing of drugs for sale cannot be done without a licence. Respondent is charged for having stored drugs for sale without licence. Before a person is convicted Under Section 18(c) read with Section 27(b)(ii) of the Act, the prosecution must establish that the drugs are stocked or stored for sale without licence - On the date of inspection i.e. on 17.12.2008, when N. Banumathi, Drugs Inspector (PW-1) inspected the Respondent's shop, he did not have any licence. He only stated that he was not aware that he has to obtain the licence. When the Respondent has stocked the drugs and was selling the same without licence, there was violation of Section 18(c) of the Act which is punishable Under Section 27(b)(ii) of the Act. The Drugs and Cosmetics Act, 1940 is a social statute which provides for checks and balances so that drugs are sold strictly only by the licence-holder or that the adulterated drugs are not sold. From the evidence of PW-1 and from the admission of the Respondent in Exs. P-4 and P-7, the prosecution has established that the Respondent did not have licence for sale of the drugs. Both the trial court as well as the first appellate court convicted the Respondent Under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act. When there is concurrent findings by the courts below, the High Court ought not to have interfered with the same in exercise of its revisional jurisdiction. The revisional jurisdiction of the High Court is different from the appellate jurisdiction. The High court will not normally interfere with the concurrent findings of fact, unless the findings of fact arrived at by the courts below is perverse or that the court has ignored the material evidence while arriving at that finding. Sentence of imprisonment - HELD THAT - Respondent had stated that he was not aware that he has to obtain a licence for sale of drugs. Considering the facts and circumstances of the case, in the interest of justice proviso to Section 27(b)(ii) of the Act can be invoked and the sentence of imprisonment of one year imposed upon the Respondent is reduced to three months. The conviction of the Respondent Under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 is affirmed and the sentence of imprisonment imposed upon him is reduced to three months, while maintaining the fine of ₹ 5,000/- - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Conviction under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 based on non-examination of key witnesses and validity of evidence.

Analysis:
The appeal arose from the High Court's judgment setting aside the conviction of the Respondent-Accused under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940. The prosecution's case was that the Respondent operated a medical shop without a valid drug license, leading to seizure of drugs. The trial court convicted the Respondent based on his admission of lacking a license and seized drugs. The appellate court upheld the conviction. However, the High Court reversed the conviction citing non-examination of key witnesses and alleged irregularities in obtaining the Respondent's signatures on documents.

The main contention was whether the High Court erred in reversing the conviction based on non-examination of key witnesses and the validity of the evidence. The Respondent admitted in documents (Exs. P-4 and P-7) to purchasing the shop and selling drugs without a license. The prosecution argued that the Respondent's admission and failure to disclose the drug supplier constituted punishable offenses under the Act. The High Court's focus on non-examination of key witnesses was challenged as the Respondent's admissions were deemed sufficient evidence.

The courts analyzed the legal requirements under the Drugs and Cosmetics Act, emphasizing the necessity of a license for stocking and selling drugs. The Respondent's lack of a license during inspection and failure to disclose the supplier were key factors in establishing the offense. The prosecution's reliance on the Respondent's admissions in Exs. P-4 and P-7 was deemed valid despite the carbon copy nature of the documents.

Regarding the validity of the Respondent's signatures on documents, the courts found no merit in the argument that they were obtained on blank papers. The Respondent's failure to take legal action against alleged irregularities undermined this claim. The courts upheld the concurrent findings of the trial and appellate courts, emphasizing the limited scope of revisional jurisdiction.

In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's judgment and affirming the Respondent's conviction under the Drugs and Cosmetics Act. The sentence of imprisonment was reduced to three months, considering the circumstances of the case and the Respondent's lack of prior convictions. The Respondent was directed to surrender within four weeks to serve the remaining sentence.