State vs The Leprosy Mission (TLM) and Others

S. Nagamuthu, J—The State is the appellant. The Drug Inspector, Sivagangai, has made a private complaint before the learned District Munsif cum Judicial Magistrate, Manamadurai, in C.C. No. 123 of 2014 against the respondents herein alleging that they have committed the offence punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act of 1940 (hereinafter referred to as ''the Act''), on the allegations that they had violated Section 18(c) of the Act.

The first respondent is a Public Charitable Trust known as ''The Leprosy Mission'' (TLM). The 2nd respondent is the Director and Power of Attorney holder of the said Trust and the third respondent is an employee, who was working as a Doctor on contract basis under the first respondent. The trial Court by judgment dated 01.11.2014 acquitted the respondents. Challenging the same, the State is before this court with this appeal.

This appeal has come up today for admission.

I have heard the learned Additional Public Prosecutor and I have also perused the materials available on record.

The case of the prosecution in brief is as follows:

"On 29.12.2010, the Drug Inspector (P.W.1) made a surprise inspection to the first respondent Mission Hospital, in the presence of P.W.1 and another witness. At that time, it was noticed that there were drugs stocked which required license under Section 18(c) of the Act. On enquiries, it came to light that the Drugs were sold to the patients. Thus, the respondents were allegedly found to have violated Section 18(c) of the Act. A show cause notice was issued, for which, the respondents sent replies. Having not been satisfied with the said replies, the Drug Inspector laid the private complaint."

In order to prove the case of the prosecution, on the side of the prosecution, three witnesses were examined. P.W.1 is the Drug Inspector, who made the inspection. P.W.2 is the eye witness, who was present at the time of the alleged inspection and recovery of the drugs. P.W.3 is yet another witness, who was also present. As many as 19 documents were exhibited on their side. The drugs numbering 77 were marked as material objects, which were stated to have been recovered from the Hospital. On the side of the accused, as many as 31 documents were exhibited. Having considered all the above, the trial Court acquitted the accused. That is how, the State is before this Court with this appeal.

In this appeal, the learned Additional Public Prosecutor would submit that so far as the inspection made by P.W.1 and the recovery of the material objects, P.W.1''s evidence remains unassailable and the same is corroborated by P.Ws. 2 and 3. The learned Additional Public Prosecutor would further submit that the seizure of the drugs from the place of occurrence have also been duly proved during trial. The learned Additional Public Prosecutor would submit that admittedly there was no licence for stocking the drugs for sale. From the receipts, which were recovered from the place of occurrence, the learned Additional Public Prosecutor would submit that the purpose of keeping the drugs was only for sale has also been proved. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubt, but the lower Court has not appreciated the evidences in their proper perspective.

I have considered the above submissions.

It is true that in an appeal against acquittal, this Court is required to re-appreciate the entire evidence and it is also permissible in law to substitute its views in the place of finding rendered by the trial Court, acquitting the accused. But while appreciating the evidence, this Court should also keep in mind that the presumption of innocence, which is one of the fundamental principles of criminal jurisprudence in this Country, gets further strengthened by the acquittal recorded by the trial Court. Therefore, in a case of appeal against acquittal, while appreciating the evidence, this Court cannot substitute its views in the place of the views expressed by the trial Court, if both views are equally poised. Keeping in mind, the above legal principles, let us now go into the evidences.

The first respondent is a Public Charitable Trust, which is running a charitable Hospital for the benefit of the poor LEPROSY patients. It is not in dispute that the first respondent is doing only free service as a charity for the benefit of the poor patients. From the evidence of P.Ws. 1 to 3, of course, it has been established that at the time of inspection made by P.W.1, there were drugs kept in the hospital. It is not the case of the prosecution that these drugs were not meant for leprosy patients. Therefore, going by the normal human conduct, it can be presumed that these drugs, which are meant for leprosy patients, were kept there only for distribution to such leprosy patients, who had come there for treatment. Under Section 18 of the Act, for mere stocking of the drugs for the purpose of supplying the same to the patients in a Hospital free of cost, it does not require any licence at all. Licence is required, if the stock of the drugs is made for the purpose of sale.

In the case on hand, it is the positive case of the prosecution that the drugs were kept only for sale and not for free supply to the patients. This fact is to be proved by the prosecution beyond reasonable doubt. The trial Court has held that this fact has not been proved beyond reasonable doubt as required in law. The trial Court has given cogent reasons for such conclusion.

The first reason is that P.W.1, during cross examination, has admitted that he did not witness the drugs being sold to any patient or anybody else. He found certain receipts scattered on the floor. He recovered it and that he inferred that the drugs were kept for sale. But, unfortunately, P.W.1 did not seize any bill book or account book or any other documents from the hospital to prove that the drugs were actually kept for sale. Had it been true, that some drugs had already been sold, certainly, being a public Trust and an Organization involving many people, the account books would have reflected the same. It is not known as to why P.W.1 did not seize the account books or did not recover any computer print out of the bills of the sales allegedly made for the day. Further, no witness has been examined by the prosecution to prove that he had atleast purchased any drug by paying money to the Hospital. The trial Court has disbelieved the recovery of the receipts from the spot (M.O.8 series).

P.Ws. 2 and 3, though have supported the case of the prosecution in the chief examination, have given a go by to the same in the cross examination. But no permission was sought for by the prosecution to cross examine them by treating them as hostile. Therefore, as of now, the evidence of P.Ws. 2 and 3, which favours the accused should be given weightage. These evidences contradict the evidence of P.W.1. The trial Court has appreciated the said contradiction and has come to the conclusion that the recovery of bills cannot be believed. I do not find any reason to take a different view on this aspect. Thus, I have also to hold that the recovery of the bills (M.O.8 series) from the place of occurrence has not been proved. If once it is so held that the recovery of bills has not been proved, then as a corollary, it should be concluded that the prosecution has failed to prove that the drugs were stocked for sale.

The learned Additional Public Prosecutor would rely on the statement made by the third accused under Ex. P7. Of course, the statement is admissible in evidence, but in order to treat the same as admissible in evidence, the prosecution should satisfy that the requirements of Section 24 of the evidence Act have been complied with. According to the third accused, his signature was obtained in a blank paper. The trial Court has given weightage for the same. I am also of the view that as rightly held by the trial Court, this statement has got no evidentiary value, as the same has not been proved beyond reasonable doubts and the same does not satisfy the requirements of Section 24 of the Evidence Act.

From the discussions so far made, it is clear that the prosecution has succeeded in proving only one fact, namely, the drugs were kept in the hospital. The respondents have produced through the purchase bills to show that the drugs were purchased only from the licensed dealers. They are also not spurious drugs. But the prosecution has failed to prove that the drugs were kept for sale. Therefore, the trial Court was right in holding that the prosecution has failed to prove violation of Section 18(c) of the Act.

In view of the above, I hold that there are no grounds to even admit this appeal. Thus, the Criminal Appeal fails and the same is accordingly, dismissed.