Anil Kumar Petitioner v. State Of Punjab

Inderjit Singh, J.

CRM No. 2559 of 2016

1. Heard.

2. For the reasons mentioned in the application, the same is allowed. Delay of 3 days in filing the revision petition is condoned.

CRR No. 308 of 2016

3. The present revision has been filed by the petitioner Anil Kumar against State of Punjab, challenging the impugned judgment of conviction and order of sentence dated 25.08.2014 passed by learned Chief Judicial Magistrate, Sangrur, vide which the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of fifteen days under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of fifteen days under Section 28 of the Drugs and Cosmetics Act, 1940 and also challenging the judgment dated 19.10.2015 passed by learned Addl. Sessions Judge, Sangrur, vide which appeal filed by petitioner was dismissed.

4. It is mainly stated in the grounds of revision that impugned judgment passed by learned CJM, Sangrur as well as judgment in appeal passed by learned Addl. Sessions Judge, Sangrur, is in contravention to the settled tenets of law and provisions of the Act and findings of conviction recorded by the trial court and upheld by the Appellate Court as well as the consequential sentence imposed upon the petitioner is completely nugatory in the eyes of law.

5. From the record, I find that State through District Drugs Inspector, Sangrur, filed a complaint against Anil Kumar under Section 18 (c) punishable under Section 27(b)(ii) and Section 18-A punishable under Section 28 of the Drugs and Cosmetics Act, 1940. The brief facts of the case as noted down in the judgment passed by learned CJM, Sangrur, are as under:-

“The present case has been filed against Anil Kumar, Incharge of the shop situated at opposite residence of Dr. Makhan Singh Jujhar Singh Nagar, Krishanpura road, Sangrur on the allegations inter alia that on 06.09.2008, Ms. Kamal Kamboj, the then Drugs Inspector, Sangrur alongwith Dr. Pritpal Singh, Medical Officer, and Dr. Parbhat Kumar, Medical Officer, Civil Hospital, Sangrur visited the said shop. Accused Anil Kumar was present as incharge of shop. On reaching the shop of accused Anil Kumar, complainant requested two-three persons from neighbour to join the inspection but none agreed. During the course of inspection, accused Anil Kumar was found stocking and exhibiting large quantity of allopathic drugs for sale and distribution in his shop. On enquiry, he did not produce any valid drug sale licence or any other document that could authorize him to stock allopathic drugs for sale and distribution in his shop and he did not produce the sale & purchase records as required under Section 18-A of Drugs and Cosmetics Act 1940. Then, Drug Inspector Sangrur seized 34 types of allopathic drugs on Form no. 16, which was signed by her, Dr. Pritpal Singh, Medical Officer, Dr. Parbhat Kumar, Medical Officer, Civil Hospital, Sangrur and accused Anil Kumar. One copy of form no. 16 was given to accused with receipt on form no. 16 itself. Drug Inspector, Sangrur prepared one inspection report at the spot. It was signed by her, Dr. Pritpal Singh, Medical Officer, Dr. Parbhat Kumar, Medical Officer, Civil Hospital, Sangrur and accused Anil Kumar. Site plan from where the recovery was made also plotted on the inspection report. On enquiry, accused Anil Kumar showed his driving licence as identity proof, the photocopy of the same was taken into possession which was signed by Anil Kumar and attested by complainant.

2. It has further been pleaded that Custody orders were issued by the Court. Drugs Inspector, Sangrur sent one notice vide letter no. Drugs/08/1098 dated 15.09.2008 at his residential address through Sh. Amarjit Singh Class IV office of Civil Surgeon, Sangrur but no reply was received from accused Anil Kumar. Thereafter, she sent one more notice vide letter no. Drugs/08/1285 dated 27.10.2008 by registered post to accused Anil Kumar. Again no reply was received from accused Anil Kumar and the letter was received undelivered from postal authorities.

3. Further, it has been pleaded that the detailed investigation report was sent to State Drugs Controller, Punjab vide office letter no. Drugs/08/1490 dated 16.12.2008 asking for prosecution order. The Drugs Controlling and Licensing Authority, Punjab issued prosecution order to launch court case against Anil Kumar vide letter No. Drugs (2) (Pb.) 2009/1803 dated 03.02.2009 Thus, accused Anil Kumar was found stocking and exhibiting 34 types of allopathic drugs at shop situated at opposite residence of Dr. Makhan Singh, Jujhar Singh Nagar, Krishanpura road, Sangrur for sale and distribution without any valid drugs sale licenses and on enquiry failed to disclose the source of acquisition of these drugs, therefore, accused Anil Kumar has contravened the provisions of Section 18(c), which is punishable under section 27(b)(ii) of said Act by stocking for sale and distribution. It has further been pleaded that by not disclosing the source of acquisition of the drugs accused has contravened the provision of Section 18A of Drug and Cosmetics Act, 1940, which is punishable under Section 28 of the Act.”

6. Finding prima facie case, notice of accusation was served upon the accused, to which he pleaded not guilty and claimed trial.

7. The complainant examined PW-1 Kamal Kamboj, Drugs Inspector, PW-2 Amarjit Singh, Peon from the office of Civil Surgeon, Sangrur, PW-3 Dr. Parbhat Kumar, SMO, PW-4 Mangat Rai, Junior Assistant (Drugs Branch), Civil Surgeon and PW-5 Jasvir Kaur, Senior Assistant, Office of Director Health and Family Welfare, Punjab (Drug Branch) and closed the evidence.

8. At the close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C, wherein he has taken the plea that alleged drugs were never stored in the alleged premises for the purpose of sale. His wife was holder of drug licence. She also sent legal notice to the drug inspector on 04.06.2010 but no reply was given. His wife has already sent photocopy of the bills and licence to the Drug Inspector. The alleged drugs were kept by M/s. Shiva Medical Hall because of leakage of the shop of M/s. Shiva Medical Hall. No notice was delivered through registered letter to him. In defence, accused has examined Mangat Rai, Junior Assistant, Civil Surgeon, Office Drug Branch, Sangrur as DW-1, Anita Rani as DW-2, Rajiv Kumar as DW-3 and Rajinder Kumar as DW-4.

9. Learned CJM, Sangrur, after appreciating the evidence, convicted and sentenced the petitioner as stated above. An appeal was filed by the petitioner and the same was dismissed by learned Addl. Sessions Judge, Sangrur, vide judgment dated 19.10.2015

10. Aggrieved from the above-said judgments, present revision petition has been filed.

11. I have heard learned counsel for the petitioner and have gone through the record.

12. First of all, I find that the findings given by both the Courts below are correct, as per evidence and law. Nothing has been pointed out as to how findings given by both the Courts below are perverse or against evidence and law. Nothing has been pointed out as to which material evidence has not been considered or which material evidence has been misread by the Courts below.

13. Learned CJM, Sangrur, in her judgment, relied upon the judgment passed in Swantraj v. State of Maharashtra Criminal Appeal no. 177/1970 decided on 05.02.1974, wherein Hon'ble Supreme Court held that whether temporary deposit or retention of drugs at an unlicenced place amounts to stocking for sale. Temporary storage even on Adhoc basis and without intent to sell as a part of the sales business amounts to storage for sale. The Court below further held that DW-2 Anita Rani in her cross-examination has admitted that her licenced premises was existing near housing board colony Bus Stand Road, Sangrur. The site from where the drugs were recovered was at about a distance of 150 to 200 yards from the licenced place. It is in the evidence of DW-2 Anita Rani that she has not applied for any godown licence. She has not taken any permission from any authority to stock the drugs at the place of recovery. The Court also discussed the bills Ex.D4 to Ex.D16 The Shiva Medical Hall being owned by wife of Anil Kumar has not been able to show any licence of the place where stock was stored. It is in the evidence that Anil Kumar was Incharge of that shop, from where 34 types of allopathic drugs have been recovered. It is admitted fact that drugs were recovered from that place. It is in the evidence that these drugs were stored for selling the same without licence. The other fact that legal notice was given by the wife of Anil Kumar, that has been given as per defence version on 04.06.2010 The drugs have been recovered, as per prosecution version on 06.09.2008, then why the legal notice was not sent immediately and why it was sent after about one year and nine months of the recovery.

14. After going through the provisions of Drugs and Cosmetics Act and after going through the impugned judgments passed by the Courts below, I find that the findings have been given by the Courts below after appreciating the evidence in right perspective and as per law. No illegality has been committed by the Courts below nor the judgments can be held as perverse. This is a revision petition and in the revision petition, this Court is not to re-appreciate the evidence like Court of an appeal.

15. In view of the above discussion, I find that the impugned judgments passed by the Courts below, are correct, as per law and do not require any interference from this Court.

16. Therefore, finding no merit in the present revision petition, the same is dismissed.