TMI Blog2018 (11) TMI 1832X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 18(c) of the Drugs and Cosmetics Act, licence is required for sale of any drug. Under Section 18(c) of the Act, stocking or storing of drugs for sale cannot be done without a licence. Respondent is charged for having stored drugs for sale without licence. Before a person is convicted Under Section 18(c) read with Section 27(b)(ii) of the Act, the prosecution must establish that the drugs are stocked or stored for sale without licence - On the date of inspection i.e. on 17.12.2008, when N. Banumathi, Drugs Inspector (PW-1) inspected the Respondent's shop, he did not have any licence. He only stated that he was not aware that he has to obtain the licence. When the Respondent has stocked the drugs and was selling the same without licence, there was violation of Section 18(c) of the Act which is punishable Under Section 27(b)(ii) of the Act. The Drugs and Cosmetics Act, 1940 is a social statute which provides for checks and balances so that drugs are sold strictly only by the licence-holder or that the adulterated drugs are not sold. From the evidence of PW-1 and from the admission of the Respondent in Exs. P-4 and P-7, the prosecution has established that the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.12.2008. In the course of inspection, it was found that certain drugs were stored without a valid drug licence and the same were seized. A memo dated 22.12.2008 had been issued to the Respondent-Accused alleging contravention of Section 18(c) of the Drugs and Cosmetics Act, 1940. The Respondent had caused reply (Ex.-P4) to the said memo without furnishing details of purchase. The Drug Inspector has filed a charge sheet against the Respondent informing commission of offence punishable Under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration of evidence, the trial court after referring to Ex.-P4 held that the Respondent has admitted that he has no licence to the premises for sale of drugs. The trial court further held that Exs. P-4 to P-7 though were carbon copies, as per Section 62 of the Indian Evidence Act, they can also be considered as primary evidence. On those findings, the trial court convicted the Respondent and sentenced him to undergo rigorous imprisonment for one year and imposed fine of ₹ 5000/- Under Section 27(b)(ii) of the Drugs and Cosmetics Act and fine of ₹ 500/- Under Section 28 of the Drugs and Cosmetics Act. Aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valid licence in violation of Section 18(c) of the Drugs and Cosmetics Act. It was also noticed that eighty-seven items of drugs were stocked without possessing a valid drug licence. The Respondent was prosecuted for contravention of (i) Section 18(c) of the Drugs and Cosmetics Act for having stocked and sold drugs without a valid drug licence which is punishable Under Section 27(b) (ii) of the Drugs and Cosmetics Act; and (ii) Section 18(a) of the Drugs and Cosmetics Act for not furnishing the name of the supplier of the drug which is punishable Under Section 28 of the Drugs and Cosmetics Act. 9. The High Court has set aside the conviction mainly on the ground of non-examination of one Kamalakannan-the person in whose name the pharmacy licence stood and one Jayanthi in whose name the shop stood. The High Court did not keep in view that under Ex.-P4, the Respondent has admitted that he had purchased the retail shop-M/s. Sri Balaji Medicals from one Jayanthi and that he had shifted the shop from the old place to the current premises No. 191, Main Road, Bargur and selling the drugs. Relevant portion of Ex. P4 reads as under : I have purchased the retail Sri Balaji Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licence-holder or that the adulterated drugs are not sold. From the evidence of PW-1 and from the admission of the Respondent in Exs. P-4 and P-7, the prosecution has established that the Respondent did not have licence for sale of the drugs. 13. Further during investigation, PW-1 had asked the Respondent through Ex.-P3 to disclose that from whom he had purchased the eighty-seven kinds of drugs. In his reply letter (Ex.-P4), he has not disclosed that from whom he had purchased the eighty-seven kinds of drugs and he had admitted the contraventions by stating that he was not aware of the procedure to obtain the licence. Respondent has only apologised for the mistake and requested to issue the licence. In the light of the admission of the Respondent in Exs. P-4 and P-7, non-examination of licence holder Kamalakannan and shop owner Jayanthi was not fatal to the prosecution case. When both the trial court as well as the first appellate court held that non-examination of those two witnesses was not fatal, the High Court in exercise of its revisional jurisdiction was not right in reversing the said finding and held that non-examination of Kamalakannan and Jayanthi was fatal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order cannot be sustained. 17. Insofar as the sentence of imprisonment, the offence Under Section 18(c) of the Act punishable Under Section 27(b)(ii) of the Act which prescribes minimum sentence of imprisonment for one year and minimum fine of rupees five thousand. As per proviso to Section 27(b)(ii) of the Act, for any adequate and special reasons to be recorded in the judgment, court may impose the sentence of imprisonment for a term less than one year and a fine of less than five thousand only. In this case, the offence was committed in the year 2008, about ten years back. The Respondent was not having any prior conviction under the Act. As pointed out earlier, in his statement, Respondent had stated that he was not aware that he has to obtain a licence for sale of drugs. Considering the facts and circumstances of the case, in our considered view, in the interest of justice proviso to Section 27(b)(ii) of the Act can be invoked and the sentence of imprisonment of one year imposed upon the Respondent is reduced to three months. 18. In the result, this appeal is allowed and the impugned judgment dated 12.09.2014 in Criminal R.C. No. 1493 of 2013 passed by the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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