State vs J. Mohamed Rafic

S. Palanivelu, J.—The following are the allegations contained in the complaint filed by the appellant:

The Complainant is the Drugs Inspector, Vellore I Range duly notified as an Inspector u/s 21 of the Drugs and Cosmetics Act 1940 in page No:

118 of the Tamil Nadu Government Gazette dated 19.3.1975 and is empowered to file this complaint under:

Section 32 of the Drugs and Cosmetics Act, 1940.

The first accused is the Proprietrix of the medical shop by the name ''R.R. Pharmacy'' situated at 86A, Idasscuder Road, Vellore-4. The second

accused is the husband of the first accused and is the person in charge of the shop as the power of attorney of the first accused. The medical shop

R.R. Pharmacy, Vellore-4 have been issued with licences in Form 20 and 21 bearing No: NAN/473/20 and NAN/473/21 dated 22.4.1993 and

is authorised to do retail business of drugs as per the provisions of the Drugs and Cosmetics Act 1940 and Rules 1945.

On 18.11.1998, the Deputy Director of Drugs Control, Intelligence Wing, Office of the Director of Drugs Control, Chennai-6, Mr. K.

Raghunathan has visited Vellore along with the Drugs Inspector, Intelligence Wing, Office of the Director of Drugs and Control, Chennai-6, Mr.

M.M. Yousuf. The Deputy Director has directed the Complainant to accompany him and the Intelligence Wing Inspector for the inspection to be

conducted at the accused medical shop.

Accordingly, the Complainant has inspected the accused medical shop, R.R. Pharmacy, Vellore-4, on 18.11.1998 at about 12 noon along with

the Deputy Director Mr. K. Raghunathan and the Drugs Inspector Mr. M.M. Yousuf. During the inspection, the first accused was not available in

the shop and the second accused was present, looking after the business. On inspection, the following 19 items of drugs were found stocked for

sale in the storage racks of the shop, without supporting purchase invoices as required under Rule 65(4)(4) of the Drugs and Cosmetics Rules

1945. 1.3 x 1 Fortum 1 G, N651, July 98, June 2000, Glaxo India Ltd., Nashik. 2.3 x 1 Fortum 1 G, N648, July 98, June 2000, Glaxo India

Ltd., Nashik. 3.1 x 1 Fortum 1 G, N671, Sep 98, Aug 2000, Glaxo India Ltd., Nashik. 4.1 Vial Rhesogam, B5027, Jan 97, Dec 99, Chemech

Laboratories Ltd., Chennai. 5.1 x 500 Mg Broadicilin, BDIM8028, Apr 98, Mar 2000, Alkem Laboratories Ltd., Taloja. 6.1 x 500 Mg

Broadicilin, BDIM8053, July 98, June 2000, Alkem Laboratories Ltd., Taloja. 7.1 x 500 Mg Broadicilin, BDIM8031, Apr 98, Mar 2000, Alkem

Laboratories Ltd., Taloja. 8.1 x 500 Mg Tienam, V4971, Apr 97, Apr 99, Merck & Co., Inc, West Point, U.S.A. 9.2 x 750 Mg Zocef Injection,

7002, Sep 97, Aug 99, Alkem Laboratories Ltd., Taloja. 10.1 x 750 Mg Zocef Injection, 7002, June 97, May 99, Alkem Laboratories Ltd.,

Taloja. 11.1 x 750 Mg Zocef Injection, 6006, Nov 96, Oct 98, Alkem Laboratories Ltd., Taloja. 12.1 x 750 Mg Zocef Injection, 7008, Dec 97,

Nov 99, Alkem Laboratories Ltd., Taloja. 13.1 x 250 Mg Dobutrex, ZF7M37C, July 97, July 2000, Eli Lilly Ranbaxy Ltd., New Delhi. 14.1 x

750 Mg Supacef, N605, June 97, May 99, Glaxo India Ltd., Nashik. 15.1 x 750 Mg Supacef, N596, May 97, Apr 99, Glaxo India Ltd.,

Nashik. 16.1 x 1 Doz. Sea Tangle Tents Made in Norway. 17.1 x 1 G Taxim Injection, TXIM8008, Jan 98, Dec 99, Indo Prophem Ltd.,

Daman. 18.1 x 1 G Reflin, D02598, July 98, June 2000, Ranbaxy Laboratories Ltd., Dewas. 19.1 x 1 G Omnatax, 018033, July 98, June 2000,

Hoechst Marion Roussel Ltd., Mumbai.

On Inquiry, the second accused has submitted that he does not have the purchase invoices for the above said 19 items. Hence, under instructions

from the Deputy Director, the Complainant has seized the said 19 items of drugs under a Mahazar and Form 16 dated 18.11.1998 in the presence

of two independent witnesses Mr. C. Babjan and Mr. V.C. Rajha. The next day (19.11.1998), the Complainant has produced the seized drugs

under a petition, before the Judicial Magistrate IV, Vellore-9 as required u/s 23(6) of the Drugs and Cosmetics Act, 1940. The C.P. No. 583 of

1998 has been assigned and the drugs were returned to the complainant with the condition that the same should be produced before the Hon''ble

Court as and when required.

On 23.11.1998, the complainant has issued a show cause notice to the second accused calling for the explanation as to why action should not be

taken against him for not having maintained the purchase invoices for the said 19 items of drugs.

The second accused in his letter dated 23.11.1998 has stated that the firm do not have the purchase invoices for the said 19 items of drugs. The

second accused in his letter dated 23.11.1998, has stated that the firm do not have the purchase invoices for the said 19 items of drugs. He has

stated further that they have purchased the items without the purchase invoices due to carelessness. Also he has stated that the first accused is the

proprietrix of the shop and is his wife and has given him a power of attorney to do the business in the shop. He has enclosed a copy of the power

along with his reply. On 8.12.1998, the Complainant has submitted a proposal to the Assistant Director of Drugs Control, Dharmapuri with a

direction to include the first accused also as one of the accused as per the opinion of the legal adviser of the office of the Director of Drugs

Control, Chennai-6. A copy of the opinion of the legal adviser was also received along with the letter.

The complainant has resubmitted the proposal under the letter dated 23.8.1999, which was returned under letter dated 7.9.1999 by the Assistant

Director of Drugs Control, Dharmapuri. The proposal was resubmitted on 18.1.2000 to the Assistant Director of Drugs Control, Vellore-9 and

the same was returned on 19.1.2000. Hence finally, the Complainant has resubmitted the proposal on 2.2.2000 requesting for the sanction order

to prosecute the first and second accused as directed. The sanction order dated 6.3.2000 was received on 29.3.2000 permitting the Complainant

to prosecute the first and second accused. Hence it is submitted that the first and second accused have contravened the provisions of Section

18(c) of the Drugs and Cosmetics Act, 1940 read with Rule 65(4)(4) of the Drugs and Cosmetics Rules 1945 by not having maintained the

purchase invoices for the said 19 items of drugs, which is punishable u/s 27(d) of the Act. Hence, it is prayed that the Hon''ble Court may be

pleased to take this Complaint on file and dispose it of as per the law.

Charges were framed against both the accused under Sections 18(c) and 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as

the ""Act"") and the accused pleaded not guilty.

After the complainant''s evidence was over, both the accused were questioned u/s 313 Cr. P.C. as to the incriminating materials available

against them and they denied their complicity. They have neither examined any witness nor marked any document.

After scrutiny of the materials, the learned Judicial Magistrate No. IV, Vellore has acquitted the accused of the charges framed against them on

the ground that ""the complainant has failed to establish the charges beyond reasonable doubt."" Point for consideration is, ""Whether the complainant

has established the charges framed against the respondents beyond reasonable doubt?.

Point:

On 18.11.1998, the complainant inspected the medical shop, R.R. Pharmacy at Vellore along with P.Ws. 2 and 3 and they found 19 items of

drugs, detailed in the complaint, in the shop without having any purchase invoices. Hence, they seized the drugs under Exhibit P-2 mahazar on

18.11.1998 at about 12 noon. The complainant also issued proceedings dated 23.11.1998 calling for the respondent/accused to show cause why

action should not be taken against them for contravening Section 18 of the Act read with Rule 64(4)(ii) of the Rules. On the same day itself i.e. on

23.11.1998, under Exhibit P-8, the second respondent has submitted explanation stating that for 19 items of drugs which were seized by the Drug

Inspector on 18.11.1998, he did not have purchase invoices and due to inadvertence, they purchased them without invoices and in future, he

would not indulge in such activities. His wife (first respondent) is the proprietrix of the shop, who docs not come to the shop and she has given

power of attorney to him for running the shop and he is responsible for all the affairs in the shop.

Thereafter, the Drugs Inspector under Exhibit P-7 letter dated 8.12.1998 addressed the Director of Drugs Control, Dharmapuri requesting

sanction for prosecution of the first respondent furnishing all the details with regard to inspection and seizure of the drugs. The Director of Drugs

Control has passed the sanction order in his proceedings in Exhibit P-8 dated 6.3.2000 to prosecute both the respondents and on that basis,

private complaint was filed by the Drugs Inspector.

The learned Additional Public Prosecutor appearing for the appellant would contend that by means of Exhibit P-6 explanation, second accused

has admitted the possession of the drugs without purchase invoices, which would attract the penal provisions of the Act and it is contravention of

the statute and the acquittal of the respondents is not at all arising and that the charges framed against the respondents have been duly established.

Repelling the above said arguments, Mr. Anbalagan, learned counsel appearing for the respondent/accused, would contend that as per the

settled law, mere possession of the drugs cannot be said to be punishable, that the respondent was not afforded with adequate opportunity by

allowing sufficient time to submit his explanation and he was pressurised to give his explanation on the same day of issue of notice of show cause

and that the sanction is also not proper.

The Drugs Inspector, by means of his request, Exhibit P-7 dated 8.12.1998, submitted proposals for prosecution of second respondent alone.

On enquiry, the second respondent, who is a person incharge of the shop, has submitted that he does not have purchase invoices for the drugs and

that he is the power of attorney for the pharmacy. But, u/s 18(c) of the Act, Director of Drugs Control passed the sanction for prosecution under

Exhibit P-8 to prosecute both the respondents. The opening portion of the sanction order proceeds under a premise that a proposal was submitted

by the Drugs Inspector for prosecution of both the respondents and he granted sanction for prosecuting both the respondents. But the fact remains

that the proposal was given for prosecution of second accused alone and not the first accused.

In this regard, this Court is able to see a clear non-application of mind on the part of the Sanctioning Authority in granting sanction to prosecute

both the respondents. When it is the view of the Drugs Inspector that wife of the first respondent has nothing to do with the existence of drugs in

the shop and the same is within the knowledge of the second accused alone, it is not for the sanctioning authority to grant sanction to prosecute

both the accused. Further, the sanction order does not contain why the first respondent has also to be prosecuted. In this regard, this Court is of

the firm view that the sanction order is not in accordance with law and it cannot be the basis for present prosecution.

The relevant provisions relating to this case are Section 18(c) of the Drugs and Cosmetics Act, 1940 and Rule 65(4)(i) of the Drugs and

Cosmetics Rules, 1945 which are extracted as under:

Prohibition of manufacture and sale of certain drugs and cosmetics.- From such date as may be fixed by the State Government by notification

in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf-

(c) (manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,) or distribute any drug (or cosmetic), except under, and in

accordance with the conditions of, a license issued for such purpose under this Chapter.

65(4)(i). Records of purchase of a drug intended for sale or sold by retail shall be maintained by the licensee and such records shall show the

following particulars, namely -

(a) the date of purchase,

(b) the name and address of the person from whom purchased and the number of the relevant licence held by him,

(c) the name of the drug, the quantity and the batch number, and

(d) the name of the manufacturer of the drug.

(ii) Purchase bills including cash or credit memos shall be serially numbered by the licensee and maintained by him in a chronological order.

The main accusation is that the respondents did not possess purchase invoices for the drugs kept in the shop. In Swantraj and Others Vs. State

of Maharashtra, , the Honourable Supreme Court has held that the storage, even though for short spells and on ad hoc basis and without intent to

sell at a certain place but as part of the sales business, comes within the scope of storage for sale in Section 18(c) and R. 62. In a subsequent

decision, the Honourable Supreme Court in State of Uttar Pradesh Vs. Boota Singh and Others, has held that mere possession not made

punishable under the Act. The following is the relevant portion in the judgment:

Thus before a person can be liable for prosecution or conviction under Section

27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or

was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be

punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead

the Court to convict the accused.

It is held in the decision that the possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act.

The learned counsel for the respondent would take advantage of the above observation and had contended that mere possession could not be

held as an offence under the Act. This Court has followed the aforesaid decision in V. Loganathan v. State by Drug Inspector, Chengalpattu

Range, Kanchipuram (1992) 1 MLJ (Cri.)126

In the considered opinion of this Court, in the present case on hand, since the sanction order for prosecuting the accused is not in accordance

with law and the same has been passed without application of mind, the complaint filed by the complainant is not sustainable and the charge stands

unproved. The principles laid down by the Apex Court also come to the aid of the respondent. This Court does not find any legal infirmity in the

impugned order challenged before this Court, which deserves to be confirmed and accordingly, it is confirmed. The point is answered accordingly.

The appeal is devoid of merits. In fine, the appeal is dismissed.