Jayanthilal Dave vs State Assistant Drug Controller

H.N. Nagamohan Das, J.—This revision petition is directed against the judgment and sentence dated 01.12.2009 in Crl. A. No. 252/2008 passed by the Second Additional Sessions Judge at Mysore, convicting and sentencing the petitioner for the offence punishable u/s 7 of Essential Commodities Act, to undergo simple imprisonment for a period of three months and to pay fine of Rs. 2,000/-, in default to pay fine, to undergo simple imprisonment for further period of one month. Petitioner was running a Pharmaceutical Stores under the name and style of M/s. Kailash Pharma at Bangalore. On the order placed by K.R. Hospital at Mysore, the petitioner supplied 30 vials of 10 m.l. each of Mephentermine for a price of Rs. 3,060/- as per invoice at Ex. P.3 dated 05.12.1995. Later, K.R. Hospital at Mysore noticed that the petitioner collected excess amount than the prescribed rates on the vials. Accordingly, a notice was issued to the petitioner as to why action should not be taken against him. On receipt of the notice the petitioner refunded a sum of Rs. 1,960/-, the excess amount received by him under a demand draft. Simultaneously, the hospital complained to the respondent Drugs Department. After investigation the Drugs Department filed a criminal case against the petitioner in C.C. No. 264/2003 for the offences punishable under Sections 7(1)(a)(ii) and 7 of Essential Commodities Act, 1995 and also under the provisions of Drugs (Price Control) Order 1995. After framing the charges the prosecution examined four witnesses as PWs. 1 to 4 and got marked Exs. P.1 to P.25 and MO. 1. On appreciation of the evidence on record, the trial Court vide its judgment dated 25.06.2008 in C.C. No. 264/2003 acquitted the petitioner. Aggrieved by this judgment of the trial Court the respondent filed an appeal in Crl. A. No. 252/2008 on the file of the lower Appellate Court.

After hearing the arguments the lower Appellate Court framed the following observations for its consideration.

Whether the prosecution has proved beyond reasonable doubts that;

1) The accused being the Proprietor of M/s. Kailash Pharma, Bangalore - 53 had supplied drug Mephentermine Injection batch No. 840, 842 charging excess amount than the price of the drug and therefore, has commuted offence punishable u/s 7(1) (a) (ii) of the Essential Commodities Act and;

2) That when the Asst. Drug Controller, Bangalore Circle inspected the premises of the accused it was found that the accused had not maintained records of the purchase of the drugs and therefore, had violated para 20(3) of Drugs (Price Control) Order 19.95 punishable u/s 7 of Essential Commodities Act?

3) Whether the judgment passed by the trial Court needs to be set aside or modified?

On re-appreciation of the entire evidence on record, the lower Appellate Court held that the charges levelled against the petitioner as proved. Taking into consideration the nature of offence and the time consumed in the trial Court, the lower Appellate Court convicted the petitioner and sentenced him to undergo simple imprisonment for a term of three months and to pay fine of Rs. 2,000/- for the offence punishable u/s 7(1-A) of Essential Commodities Act. Hence, this revision petition.

Heard arguments on both the side and perused the entire revision papers.

Ex. P.3 is the invoice under which the petitioner supplied 30 vials of Mephentermine for a price of Rs. 3,060/-. The manufacturers clarified under Ex. P.9 the rates of each vial of Mephentermine at Rs. 53.50/-. When it was brought to the notice of petitioner he refunded the excess money collected by him under a demand draft to the hospital. The evidence on record, manifestly establishes that the petitioner collected excess price than the prescribed rate from the hospital and the same is clear violation of Drugs (Price Control) Order, 1995 punishable u/s 7 of the Essential Commodities Act. This finding of the lower Appellate Court convicting the petitioner is supported by the evidence on record and I find no justifiable ground to interfere with the same. The incident had taken place in the year 1995. When it was brought to the notice of the petitioner, he has refunded the excess price collected by him. Further the material on record discloses that petitioner surrendered the license and closed his business in the year 1998. It is not a case where the petitioner traded any substandard or adulterated or inferior drug. On the other hand it is a case where excess price is charged and the same is refunded when it was brought to the notice of the petitioner. Therefore, I am of the considered opinion that the simple imprisonment for a terra of three months appears to be on higher side. Imposing fine of Rs. 10,000/- will meet the ends of justice. Accordingly, following order.

ORDER

a. The petition is hereby partly allowed.

b. The impugned judgment of conviction dated 01.12.2009 passed by the II Additional Sessions Judge, Mysore in Crl. A. No. 252/2008 is hereby continued.

c. The sentence passed by the lower Appellate Court is hereby modified by levying fine of Rs. 10,000/- on the petitioner and in default to pay, to undergo simple imprisonment for a term of one month.

Ordered accordingly.