Drugs Inspector, Palghat vs Elias M Palal

K.G. Balakrishnan, J.—The state has preferred this appeal against the judgment in Criminal Appeal No. 126 of 1983 on the file of Sessions Court, Palghat. The respondent herein was convicted by the Judicial Magistrate of First Class, Ottappalam for having committed the offence punishable u/s 18 (c) read with section 27 (2) of the Drugs and Cosmetics Act. He was sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs. 2.000/- and in default of payment of fine to undergo simple imprisonment for three months. The respondent filed the appeal before the Sessions Court. This appeal was preferred against that judgment. The de facto complainant in the case was the Drugs Inspector of Palghat. The prosecution case is that on 4-3-1978 the complainant received information from the local Deputy Superintendent of Police alleging certain unauthorised sale and distribution of allopathic drugs by the respondent. The respondent Elias M. Palal was running a shop by the name and style as M/s. Palal Pharmacy at Ottappalam. On 4-3-1978 the complainant, Drugs Inspector inspected the premises of M/s. Palal Pharmacy. The respondent-accused was found to have stocks of various allopathic drugs in his shop. The accused informed P. W. 1 that he had a valid registration for practising in modern system of medicine and he also produced a certificate bearing registration No. 544 dated 8-3-1961. P.W. 1 did not take any action against the accused believing that the latter had a valid certificate of registration. He sent a report to the Drugs Controller, Trivandrum. However. P.W. 1 later received Ext. P3 information from the Drugs Controller to the effect that the accused did not hold a certificate of registration for practising modern system of medicine. Again P.W. 1 inspected the premises of M/s. Palal Pharmacy on 8-11-1978 and seized some of the allopathic drugs kept there. P.W. 1 also prepared Ext. P5 mahazar and thereafter the prosecution was launched against the accused'' for violation of section 18(c) read with section 27(a) (ii) and section 23 of the Drugs and Cosmetics Act, 1940.

On the side of the prosecution P. Ws. 1 to 6 were examined and Exts. P1 to P7 were marked. The only question that arises for consideration is : whether the accused has committed any offence u/s 18(c) read with section 27 (a) of the Drugs and Cosmetics Act, 1940. P.W. 1, the Drugs Inspector deposed that he seized the various allopathic drugs from the shop of the accused and the details are given in Ext. P5. As many as 27 items of medicines were recovered from the shop.

The accused had mainly raised two contentions. Firstly he contended that he had a valid B-class registration for practising modern system of medicine and in that way he was entitled to stock allopathic medicines. Secondly it is contended that all these medicines were not stocked with the intention to sell the same and most of them were physician samples and the dates of expiry were over long ago.

It was submitted that the prosecution has not successfully proved that the accused did not posses a valid certificate of registration for practising modern system of medicine. However, the prosecution relied on Ext. P3 certificate to show that the accused had no valid certificate of registration. Ext. P3 is a letter sent by the then Registrar to the Drugs Controller, Trivandrum informing the latter that the name of Shri Elias M. Palal had not been registered with the Registrar of the Travancore-Cochin Medical Council, Trivandrum under part (a) or (b) in allopathy. The accused had set up a case that he had a valid certificate with him and the same was seized by PW. 1, under Ext. P5 mahazar and P.W. 1 has suppressed that document and did not take care to produce the same. In Ext. P5 it has been mentioned that the certificate bearing Registration No. 544 dated 8-3-1961 was seized by PW. 1. But Ext. P3 document shown that the accused did not posses any such certificate of registration. There is yet another document to show that the registration No. 544 does not relate, to the accused and it is in the name of one Ponnappan Asari. The contention of the accused that he had produced the certificate before PW. 1 and therefore he could not prove the existence of the certificate cannot be accepted. The certificate seized under Ext. P5 mahazar was having registration No. 544. It is clear from Ext. D1 that the certificate bearing registration No. 544 did not relate to the accused. If the accused had a valid certificate with him he should have produced it before the court. If the original was missing for any reasons as stated by him he could have adduced secondary evidence

The accused is taking the stand that he had a valid certificate with him. In a criminal trial the prosecution bears the burden of proving the, accused''s guilt. It encapsulates the presumptions of law that the defendant remains innocent until he is proved guilty. This rule has been firmly established by the dictum laid down by Viscount Sankey L.C. in Woolmington v. The Director of Public Prosecutions (1935 AC 462). But this rule is subject to certain exceptions viz. insanity and statutory exceptions. In a case where statute prohibits the doing of acts subject to proviso exception and the like, the burden of proving the exceptions, proviso, excuse or qualification shall be on the accused. For instance in case of prosecution for driving without a licence, it is for the driver to prove that he has licence.

This position is governed by two sections in Indian Evidence Act. The section more appropriate to the facts involved in this case is Section 106 with the illustrations is as follows:

Burden of proving fact especially within knowledge :-When any fact is especially within the knowledge of any person, the burden of proving fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

The prosecution has only persuasive burden to prove that the accused had no certificate of registration. That burden is satisfactorily discharged by Ext. P3 document. The prosecution cannot be called upon to prove a negative aspect. The view taken by the learned Sessions Judge that the entire Registration books should have been produced before the Court to prove that the accused had no valid certificate or registration is incorrect. That was a fact especially within the knowledge of the accused. On the evidence on record it can only be said that the accused has not succeeded in proving that he had a valid certificate to enable him to keep allopathic medicine in his shop.

The next contention urged by the respondent is that 27 items of the medicine were recovered from the shop of the accused and all these medicines were not kept there for the purpose of sale. P.W. 1 has deposed that the accused is a homoeopathy doctor and the major items of the medicines found in the shop were homoeopathic drugs. The Ext. P5 series of drugs were found in an almirah kept in the rear portion of the room and most of the drugs were found in used bottles. As already been stated some of the medicines were physician samples and the date of expiry had already passed long ago. It is true that the quantity of medicine seized from the shop of accused itself causes some suspicion. Ext. P7 series of Bills. No. 69 were produced to show that the accused purchased various items of medicine from the shop of P.W. 2. All these are items of allopathic medicine. This also causes serious suspicion on the conduct of the accused. Section 18 (c) of the Drugs and Cosmetics Act can be invoked only when the stocking of medicines was intended for sale. The relevant portion of section viz., 18 (c) reads as follows:

S. 18. Prohibition of manufacture and sale of certain drugs or cosmetics.

S. 18(c). Manufacture for sale, or sell, or stock, or exhibit for sale, or distribute any drugs or cosmetics except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter.

(emphasis supplied)

In view of the wordings of section 18(c) it must be proved affirmatively that the stocking of the medicine must be for sale. There is no case for the prosecution whether these items were displayed or kept for sale. There is no evidence to show that the members of the locality came to the shop and purchased these medicine from the shop. Therefore, the stocking of allopathy medicine alone is not sufficient to enter conviction for the offences u/s 27 (a) (2) of the Act.

This view has been taken by the Supreme Court in the decision State of Uttar Pradesh Vs. Boota Singh and Others, . In that case the appellant therein was caught from a railway station with 17 plastic containers containing 17,000 white coloured tablets. The prosecution was launched against him for violation of section 18(c) read with section 27(a) (i) (ii). The Supreme Court acquitted the accused for the reason that the possession of the simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. This view has been accepted by a Division Bench of Calcutta High Court in Sanat Kumar v. State of West Bengal (1984 Crl. L. J. 931). The evidence on record only shows that the accused was found in possession of some allopathy medicine. Prosecution could not adduce any further evidence to show that these medicines were stocked in the business premises of the accused for the purpose of sale or for distributing the same to customers.

Therefore, the learned Sessions Judge has rightly intervened and acquitted the accused. I see no reason to reverse that finding. The appeal fails and is dismissed.