State of Punjab vs Lashkar Singh

S.S. Grewal, J.—Complaint under Sections 27A(ii) and 28 read with Sections 18(c) and 18A of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred to as the Act) and the rules framed thereunder was filed against Lashkar Singh accused, who was tried and acquitted of the said offence by additional Chief Judicial Magistrate, Hoshiarpur vide his order dated 23rd of September, 1986. Aggrieved against the order of acquittal, the State of Punjab has filed the present appeal.

In brief, facts relevant for the disposal of this case as emerge from the complaint filed by Mohan Singh, Drugs Inspector, are that on 25th of November, 1982, he along with Dr. Krishna Bhalla, Assistant Civil Surgeon went to the shop of Lashkar Singh accused situated in village Ghorebaha. Harcharan Singh Sarpanch and F.M.Z. Chaudhary were also present there at that time. The Drugs Inspector disclosed his identity and asked Lashkar Singh to produce Drugs Licence but the latter could not produce the requisite licence. The Drugs Inspector seized all the drugs stocked in the shop and some instruments lying there through seizure memo. Ex.P.C. The drugs and the instrument so seized were put into a box which was sealed with the seal of Drugs Inspector bearing impression ''M.S. Drugs Inspector''.

In reply to the notice Ex.PF served on accused, he pleaded that he was Assistant of Dr. Subhash Chander. However, on enquiry it was reported by the postal authorities that there was no person of such name and thereafter prosecution was launched against Lashkar Singh.

For the purposes of pre-charge evidence, the prosecution examined Mohan Singh, Drugs Inspector as P.W. 1 and Dr. A. R. Salwan as P.W. 2.

The trial court framed charge against the accused Under Sections 18(c) read with Section 27A(ii) and 18A read with Section 28 of the Drugs and Cosmetics Act, 1940 to which he pleaded not guilty and claimed to be tried.

Mohan Singh P.W. 1 and A. R. Salwan P.W. 2 were further cross-examined by the learned counsel for the accused. Dr. Mrs. Krishna Bhalla, Assistant Civil Surgeon, Hoshiarpur was examined as P.W. 3, whereas Harcharan Singh P.W. was given up as having been won over by the accused.

Accused in his statement u/s 313 of the Criminal P.C. denied the prosecution allegations appearing in evidence against him and pleaded false implication. According to him, he was working as an Assistant at Rajindra Clinic with Dr. S. C. Malhan and the medicines were purchased by Dr. Malhan for his clinic. Lashkar Singh further pleaded that he was also a registered Medical Practitioner and possessed the requisite certificate. The accused, however, did not produce any evidence in his defence.

The learned trial Court on the basis of single Bench authority of this Court in Phul Singh v. State of Haryana, Criminal Rev. No. 1617 of 1984 decided on 20th of Sept. 1985 Reported in 1985 Cri LJ 247 (Punj & Har) held that the accused has been registered as a medical practitioner in the register of Punjab Ayurvedic and Unani Medical Practitioners Act, 1964 in Haryana; he was also a licence holder as Registered Medical Practitioner (R.M.P.) and his name was also entered in the register of Punjab Ayurvedic and Unani Medical Practitioners Rules, 1963 maintained in Haryana and as such the accused comes within the definition of Registered Medical Practitioners and was entitled to keep the medicines in the shop and there was no violation of Section 18(c) of the Act.

The authority in Phul Singh''s case, referred to above, was overruled by a Division Bench judgment of this Court in Civil Writ Petn. No. 2204 of 1986, Sarwan Singh Dardi Vs. State of Punjab and Others, wherein it was specifically held that a medical practitioner of the Indian System of medicine is not entitled to keep alopathic drugs in his possession and administer them to his parties. The impugned order passed by the trial Court which mainly on the observations of the authority in Phul Singh''s case (supra) cannot be legally sustained.

From the testimony of Mohan Singh, Drugs Inspector concerning seizure of alopathic medicines, it is apparent that substantial stock of allopathic medicines and other articles including instruments were stocked in the shop by Lashkar Singh accused which were meant for sale. Lashkar Singh accused had no valid authority to stock such medicines or instruments in his shop which were meant for sale. The testimony of Mohan Singh, Drugs Inspector concerning recovery of a large number of allopathic medicines and instruments finds ample corroboration from the testimony of Dr. Krishna Bhalla, Assistant Civil Surgeon. No material contradiction worth the name has been pointed out in the testimony of the two witnesses produced on behalf of the prosecution on material aspects of the prosecution story. The defence plea that the accused was earlier working as Assistant at Rajindra Clinic with Dr. S.C. Malhan or that the medicines were purchased by Dr. S. C. Malhan for his clinic has not been substantiated on the record.

On the basis of reply of the accused further enquiries were made by the Drugs Inspector through registered post from Dr. S. C. Malhan. The registered letter so sent was delivered back to the Drugs Inspector with the report of the postal authorities, that, no doctor by the said name resides at the given address. Thus the plea set up by the accused that the medicines taken from the shop of the accused in fact belonged to Dr. S. C. Malhan has not been proved on the record. The other plea raised by the accused that he was a (allopathic) medical practitioner has also not been substantiated on the record. As already discussed in the earlier part of the judgment the accused was registered as a Medical practitioner under Punjab Ayurvedic and Unani Medical Practitioners Act, 1964 and rules framed thereunder and on the basis of the said licence, the accused cannot legally stock or keep in his possession allopathic medicines and other instruments at his shop for sale. The prosecution has thus been able to bring home guilt u/s 27A(ii) read with

Section 18(c) of the Act against the accused beyond reasonable doubt and we convict Lashkar Singh accused accordingly.

Taking into consideration the fact that most of the allopathic medicines recovered from the shop of the accused were those which are commonly used by the public and the fact that the accused has undergone the agony of trial for over two years in the trial court and another four years in this Court where appeal against acquittal remained pending, we do not deem it necessary to award the minimum sentence u/s 27A(ii) of the Act to him, instead in our opinion the ends of justice would be fully met, in case Lashkar Singh is sentenced to undergo rigorous imprisonment for six months and we order accordingly.

We hereby accept the appeal and set aside the order of acquittal passed by the trial court, which is grossly perverse.