State vs Purshottam Prasad Jaiswal

Chandra Prakash, J.—This is an appeal against the order dated 9-12-1971 of Sri R.A. Dubey, Sub-Divisional Magistrate, Gorakhpur acquitting the Respondent Purshottam Pd. Jaiswal.

The Respondent was tried u/s 18(a)(i), (ii), (iii) and (iv) read with Section 17(a) and Section 17B(c) of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred to as the Act). The allegations of the prosecution were that the Respondent as incharge and Salesman of M/s. Purshottm Medical Stores, Chauri Chaura, Gorakhpur was carrying on the sales of Chloramphenicol Capsules, batch No. nil, and the name of the manufacturer unknown on 3-4-1969. The Inspector of Drugs Chandra Bhushan Awasthi (PW 3) inspected the shop of the Respondent on 3-4-1969 at about 2 P.M. in the presence of the Respondent and the witnesses Abdul Hakim and Moti Lal. He recovered the capsules of Chloramphenicol from the almirah of the Respondent shop and they were open for sale. From a perusal of these Chloramphenicol capsules the Inspector of Drugs suspected them to be spurious. He, therefore, took 24 capsules in his possession as samples. He then devided these 24 capsules into four equal parts. The three parts were kept in three packets and the fourth part was kept in the phial in which they were placed. He labeled all the four parts and sealed them. He also requested the Respondent to put his seal if he so liked, but since the Respondent had no seal, he put only his signatures. The Drug Inspector Sri Awasthi also signed these samples and sealed them. He gave one sample to the Respondent in the presence of the witnesses and obtained latter''s signature on Form No. 17 Ex. Ka/3. The Drug Inspector also obtained the receipt Ex. Ka 3(a) from the Respondent after paying him Rs. 4/- as the price of the sample taken and this receipt bears the signature of the Respondent. The Drug Inspector then sent one of the samples to the Central Drug Laboratory, Calcutta for analysis vide letter Ex. Ka/4. The Govt. Analyst of the Central Drug Laboratory, Calcutta through his letter dated 9th May, 1969 Ex. Ka/2 reported that the sample sent to him did not contain any chloramphenicol, but contained only Sodium bicarbonate and chloroguine phosphate. It was, therefore, a spurious preparation and must be considered adulterated u/s 17B(e) of the Act. By a Regd. notice dated 21st May, 1969 the Drug Inspector informed the Respondent that the sample recovered from the Respondent shop was not of a standard quality as reported by the Govt. Analyst, Central Drugs Laboratory, Calcutta and required the Respondent to show cause why action should not be taken against him. The Respondent was also required to disclose the name or address of the person from whom the Respondent had purchased the above-said Chloramphenicol capsules, No reply appears to have been received and accordingly the Respondent was prosecuted.

The Respondent pleaded not guilty. He admitted that samples of Chloramphenicol capsules were taken from his possession, but he denied that those samples were of Sub-standard. His defence was that they were of standard medicom. His defence further was that the Drugs Inspector wanted bribe from him, but since he did not oblige the Drugs Inspector, the latter got the samples changed. The Respondent offered the sample in his presence for re-analysis.

The prosecution examined three witnesses viz. G.R. Jain (PW 1), Sulai-man Khan (PW 2) and Chandra Bhus-han Awasthi (PW 3) in support of its story. The Respondent produced one Mewalal (DW.1) in his defence. The court below after considering the entire evidence on record came to the conclusion that the charge against the Respondent was not brought home and accordingly the Respondent was acquitted.

The State has now come up in appeal. It is contended that the order of the court below acquitting the Respondent is not warranted by the testimony on record. On the other hand, it is perverse and should be set aside. I have heard the learned Counsel for the Respondent as also the learned Counsel appearing on behalf of the State at length and after going through the record I have come to the conclusion that the order of acquittal passed against the Respondent cannot be allowed to stand.

A preliminary objection was raised on behalf of the Respondent that the complaint in the instant case was filed by the Drugs Inspector, but the permission to file the appeal was obtained by the State of Uttar Pradesh, which is against the mandatory provisions of Section 417 Code of Criminal Procedure. This objection has no force. Section 417 Code of Criminal Procedure reads as under:

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The above Section has been interpreted by the Allahabad High Court in the case between the State of Uttar Pradesh and Balwant Singh Birdhi reported in 1966 AW.R 167, in which it has been held that both the State as well as the complainant had a right to obtain the leave of this Court to file an appeal and the right to file an appeal by the State is lost only when the complainant has applied for leave to appeal u/s 417(3) Code of Criminal Procedure and it had been refused. When the leave to the complainant has not been refused u/s 417(3) Code of Criminal Procedure the right of the State to file the appeal subsists.

Chandra Bhushan Awasthi (PW 3) has narrated how he inspected the shop of the Respondent on 3-4-1969 at about 2 P.M. and recovered the 24 capsules of Chloramphenicol from the almirah of the Respondent shop. He has also stated how he sealed those samples into four bundles including one bundle containing the Phial after paying the price of Rs. 4/- to the Respondent. His testimony is supported by the documents Exs. Ka/2, Ka/3, Ka/3(a) and Ka/4. The Respondent never challenged the recovery of samples from his possession. On the other hand, fn his statement u/s 342 Code of Criminal Procedure he admitted the recovery in unqualified terms. The court below has commented upon a number of infirmities in the search carried out by the Drug Inspector Chandra Bhushan Awasthi (PW 3). The court below points out that the Drug Inspector never subjected himself to any search by the witnesses as well as by the Respondent as required by law. The court below has further remarked that the witnesses taken by the Drug Inspector for witnessing the search belonged to different localities and were strangers to the scene of the incident. He has further commented that the witnesses and the Drug Inspector did not take each other''s search. On behalf of the State it was pointed out that the Drug Inspector had gone to make an inspection and not to conduct a search. There is a difference between an inspection and a search. For purposes of this case I have assumed that there is no difference between an inspection and the search. The above infirmities could have created doubt on search carried out by the Drug Inspector provided the Appellant had denied the recovery of the samples from his possession. As already noted above, in the instant case I find that the Respondent admitted the recovery of Chloramphenicol capsules from his shop and in view of the ad-mission, the infirmities pointed out by the court below are of no consequence.

The court below has pointed another irregularity committed by the Drug Inspector. In this application dated 19-12-1971 the Respondent pointed out that he wanted to send the samples in his possession for analysis afresh because his case was that the samples taken by the Drug Inspector had been changed by the Drug Inspector. This application was rejected by the-predecessor in interest of the court below on the ground that no such application was made within 21 days of the receipt of the notice. u/s 25(3) of the Act, the Respondent was entitled to apply for sending his sample for analysis within 21 days of the receipt of the notice of show cause. This was not done. The court below has remarked that his predecessor should have sent the sample in possession of the Respondent notwithstanding the delay which hardly matters. It was, perhaps, forgotten that the time allowed to the Respondent for sending the sample had been fixed with a purpose. If the sample is not sent early, the contents of the sample are likely to be decomposed and disintegrated. As already noted above, the sample in this case was taken on 3-4-1969 but the Respondent applied for sending the sample on 19-12-1971. This intervening period of about 11/2 year was sufficient to decompose and disintegrate the contents and the predecessor of the court below was right in rejecting the application for no useful purpose would have been served by sending the sample after so much delay.

The burden of proving that the Drug Inspector had changed the sample lay on the Respondent. No evidence has been tendered by the Respondent to show that the Drug Inspector changed the sample taken by him. The Respondent has, no doubt, produced one Mewalal (DW 1) to show that the Drug Inspector filled one packet contained six capsules only and the other capsules he kept in his hand-bag and obtained the signatures of the Respondent on three blank envelopes. No reliance can be placed on the testimony of this witness for various reasons. Firstly, the presence of this witness at the time admitted search was not suggested to the prosecution witnesses; secondly, no suggestion was made to the Drug Inspector that he obtained three signatures on three Wank envelopes; thirdly, the above statement is nullified by the documentary evidence on record containing the admissions of the Respondent; and lastly, Mewalal (DW 1) appears to be interested in the Respondent so much so that he refused to admit or recognise the signatures of the Respondent on the various papers.

Now coming to the question of sentence, I find that the maximum sentence of one year''s R.I. or a fine not exceeding Rs. 500/- or both can be imposed under the Act, but the trafficking in spurious drugs has increased enormously and requires suppression with a strong hand. In the circumstances, ends of justice will be met if the Respondent is sentenced to three months'' R.I.

In the result, the appeal is allowed. The order of acquittal dated 9-12-1971 passed by the trial court is set aside and the Respondent is convicted and sentenced to three months'' R.I. He must surrender forthwith to serve out the sentence awarded to him.