JUDGMENT
K.P. Mohapatra, J.
1. The order of acquittal of the respondent passed by the learned judicial Magistrate, Banpur, for offences punishable Under Section 27 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’) is assailed in this appeal.
2. The prosecution case in brief is that the respondent has a clinic named and styled as M/s. Gopabandhu Clinic” at Nachuni. On 12-9-1975 the Drugs Inspector (P. W 1) raided and searched the clinic and found that the respondent was in possession of drugs (M. Os. I to XLIV) in the shape of patent medicines for sale. The drugs were seized by seizure list (Ext. 1) in the presence of independent witnesses. The respondent was asked to produce the drug licence for stocking the drugs and exhibiting them for sale, but he could not do so. He was also requested to produce purchase invoices of the drugs seized, but he could not produce the same. The respondent described himself as a registered medical practitioner with qualification, such as, “Dr. Dolagobinda Nanda, D. H. M. S- (Homoeo), B.A.F.M.S. (R. M. P.)”. He was further requested to produce certificates and documents which entitled him to practise in allopathic medicines and as to whether he was a registered medical practitioner recognised by the Orissa Council of Medical Registration, but he was unable to produce any such certificate or document It was ascertained from the Orissa Council of Medical Registration that the respondent was not a registered medical practitioner. Therefore, after close of investigation a prosecution report was filed against the respondent for contravention of specific provisions of the Act punishable Under Section 27 thereof.
3. Charges were framed against the respondent as follows :
1) For contravention of Section 18(c) punishable Under Section 27(a)(ii) of the Act.
2) For contravention of Section 18(a) punishable Under Section 27(b) of the Act.
3) For contravention of Section 18(a)(vi) punishable Under Section 28 of the Act.
The respondent pleaded riot guilty to the charges and denied that he had stocked the drugs.
4 The learned Judicial Magistrate in the impugned judgment dealt with only the first two charges and found that there was contravention of the provisions of Section 100 of the Code of Criminal Procedure (‘Code’ for short), because at the time of the alleged seizure of drugs by seizure list (Ext, 1) there was no independent witnesses. So he disbelieved the prosecution case of seizure of the drugs from the respondent and on that account alone he found the respondent not guilty and recorded the order of acquittal.
5. The learned Additional Government Advocate urged that the prosecution proved the seizure of the drugs from the Clinic of the respondent who had neither a licence for stocking drugs in the shape of patent allopathic medicines nor could produce the purchase invoices to show the names and addresses of the persons from whom he acquired the same. He was also not authorised to practise medicine by the Orissa Council of Medical Registration. So, the alleged offences were clearly made out. Learned counsel appearing for the respondent, on the other hand, contended that the prosecution failed to prove that the respondent was found in possession of the drugs. For non-compliance of provisions of Section 100 of the Code the search and seizure were illegal. So the order of acquittal should not be disturbed.
6. I will now briefly consider the scope and ambit of Section 378 of the Code of Criminal Procedure. In AIR 1957 S. C. 216, Belbir Singh v. State of Punjab, it was held that though the High Court has full power to review the evidence upon which an order of ‘acquittal is founded, it is equally well settled that -the presumption of innocence of the accused persons is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons, for the appellate Court to come to a conclusion different from that of the trial Judge. In AIR 1963 S. 822, Radha Kishan v. State of Uttar Pradesh, it was held that an appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court in appeal finds that the acquittal is not justified by the evidence on record, it can set aside the acquittal without coming- to the conclusion that there were compelling reasons for convic- tion. In 1979 S. C C. (Cri.) 568, Salim Zia v. State of Uttar Pradesh, it was held as follows :
“The High Court in an appeal against an order of acquittal Under Section 417 of the Code of ‘Criminal Procedure, 1898 has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that, upon the evidence, the order of acquittal should be reversed.
The different phraseology used in the judgments of this Court such as :
a) ‘substantial and compelling reasons’;
b) ‘good and sufficiently cogent reasons’;
c) ‘strong reasons’,
are not intended to curtail or place any limitation on the undoubted power of an appellate Court in an appeal against acqjittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (iii) the right of the accused to the benefit of any real and reasonable doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing witnesses”.
In AIR 1975 S. C 274, Mahtab Singh and Ors. v. The State of Madhya Pradesh, it was held that where two views of evidence are reasonably possible, the appellate Court ought not to disturb a finding of acquittal An identical view was taken in AIR 1983 S. C. 308, Babu and Ors. v. State of Uttar Pradesh. The principle laid by the Supreme Court in the aforesaid decisions and numerous other decisions have been followed by this Court from time to time in a large number of cases. Keeping these principles in mind, I would approach for revaluation of the oral, as well as, the documentary evidence adduced by the prosecution in this ease.
7 The learned Judicial Magistrate found that the prosecution failed to prove its case because, the search and seizure of the drugs were found not to be in accordance with law and so no conclusion could be reached that the respondent was found in possession thereof. On this ground alone he acquitted the respondent. It is, therefore, to be considered how far the finding was justified both on facts and law.
8. There were two search and seizure witnesses in this case, P. W. 1 is a Drugs Inspector who took the main part in the search and seizure. According to his evidence, on 12-9-1975 he accompanied the Inspector of Vigilance and raided the clinic of the respondent. When he entered inside, the respondent, was present. The clinic was named and styled as “Gopabandhu Clinic”, He disclosed his identity and expressed that he wanted to search the premises. After search he seized drugs numbering 49 items by seizure list (Ext 1). The respondent also signed on the seizure list and his signature is Ext. 1/2. P. W 2 was present at the time of search and seizure P. W. 2 was a government employee at the relevant time and stated that an inspector of, Vigilance called him to the residence of the respondent where. P. W. 1 and some other officers were present. The Vigilance Inspector told him that they had seized drugs from the residential house of the respondent He also saw a number of items of medicines which were kept in a jeep. A list was prepared and he was asked to sign. He identified his signature (Ext. 1/3) in the seizure list. It was ascertained in his cross-examination that the deep of the officers was parked in front of the residence of the respondent He did not see the medicines, but at the same breath he stated that he could identify some of the medicines because he put his signature on some of the phials. The witness, no doubt, did not fully support the version of P. W. 1, nevertheless, there is no doubt that he was present at the residence of the respondent when P. W. 1, and other officers of the raiding party were present, ft is not possible to accept his version that without seeing the search and seizure he blindly put his signature, because he was a government employee and not an ordinary, uneducated and ignorant person. A consideration of his evidence gives the impression that he attempted to conceal the truth obviously to- support the respondent. Now coming to the seizure list (Ext. 1) it is seen that the search and seizure were made In the presence of P. W. 2 and another witness Ananta Charan Dalabehera. Since P. W. 2 admitted his signature on the seizure list (Ext. 1) and he was not an ordinary, Illiterate and ignorant person, it would be reasonable to hold that he vouchsafed the contents of Ext. 1 and the truth of the facts stated therein. It is now common knowledge that a search and seizure witness though present and signs the seizure list, later does not support and tries to wriggle out of the situation by saying that at the instance ‘ of the investigating officer he signed the seizure list without either being present at the time of search and seizure or without, even seeing the seized articles. In such cases, if there is other corroborative1 evidence of search and seizure it will be safer to rely on the seizure list which is undoubtedly a contemporaneous document, in this case considering the evidence of P. Ws. 1 and 2 and accepting the seizure list (Ext. 1), there are good reasons to hold that there was search of Gopabandhu Clinic in the presence of the respondent and seizure of .49 items of drugs as per seizure fist (Ext. 1).
9. According to Sub-sections (4) and (5) of Section 100 of the Code, search and seizure shall be made in the presence of two or more independent respectable inhabitants of the locality and the list of things seized shall be signed by such witnesses, !n rejecting the evidence of search and seizure the learned Judicial Magistrate observed that the other witness mentioned in the seizure list (Ext. 1) namely, Ananta Charan Daiabehera was not cited as a witness in the prosecution report. It is to be pointed out that although at the time of search and seizure presence of two independent and respectable ‘inhabitants of the locality is necessary, it is not required that all such witnesses should be examined in Court If all of them are examined, it is well and good, but if only one of them is examined, the search and seizure for that reason do not become illegal.
10. Even if it it assumed that P. W. 2 did not fully support the search and seizure yet, there are no grounds to reject the evidence of P. W 1 who is not only the, investigating officer Who submitted the prosecution report, but also a responsible government employee being an Inspector of Drugs, In this connection I will make reference to two decisions. The first decision is reported in AIR 1978 S. C. 1511, Modan Siugh v. State of Rajasthan. In this case it was held that if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In the case reported in’ 1985(1) Scale 697, The State of Gujarat v. Shri Raghunath Vamanrao Baxi, which was relied upon by this Court in 60(1985) CLT 309, Bhramarbar Dhai v. The State of Orissa, it was held that the veladity of a witness who is a government employee and known to be the investigating officer should not de facto be treated as doubtful and his evidence should not be viewed with suspicion. The reason for relying upon this decision is that for the mere reason that a witness is a government employee, his evident cannot be thrown out as suspicious for that reason only If after assessing ‘his evidence, it is found that it is Worthy of credit, there is no reasori why such evidence should not be accepted by the Court. If, on the other hand, it is found to be worthless, partisan or otherwise objectionable Sacking veracity and credence, the Court shall be free to discard the same. In this case the evidence of P. W. 1 assessed as a whole gives the impression that he is a truthful witness and so I do not find any ground whatsoever to discard his evidence
11. Further assuming that there was irregularity in search. So what is the effect ? In AIR 1961 Kerala 8, Kochan Velayudhan v. State of Kerala, a Full Bench held that although the failure to comply with the provisions regulating searches may cast doubts upon the bona fides of the officers conducting the search, there is nothing in law which makes the evidence relating to an irregular search inadmissible and once it is found that the evidence of the recovery of articles in the search is reliable a conviction based on such evidence is not invalid on the ground of Irregularity in search. In AIR 1963 S. C. 822 (supra) it was held that where the provisions of Sees. 103 and 165 of the Code are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated. In AIR 1965 Ori. 136, The State v. Satyanarayan Mallik, it was held that contravention of Section 165 of the Code makes the search illegal to the extent that the person whose house was searched would escape with impunity in case of an obstruction to that illegal search. The illegality of the search, however, does not make the evidence of seizure inadmissible though the Court may be circumspect to closely scrutinise the evidence of seizure. In AIR 1980 S. C 593, State of Maharashtra v. Natwarlal Damodardas Soni, it was held that even if illegality of the search is assumed, it will not affect the validity of the seizure and further investigation or trial of the case. From these decisions, the principle is well-settled that even if for any reason search is held to be not in accordance with law and is irregular, then the seizure of articles if supported by evidence cannot be held to be illegal. If this principle is applied to this case, then there is no escape from the conclusion that even if it is assumed for the sake of argument that the search was irregular yet, the seizure of the drugs from the clinic of the respondent in his presence supported by oral and documentary evidence cannot be held to be illegal so as to be disbelieved.
12. The learned counsel for the respondent raised a faint plea to the effect that the respondent is not the owner of the clinic suggesting thereby that he had not stocked the drugs and the same were not seized from his possession. The evidence of both P. Ws. 1 and 2 shews that the respondent owned the clinic and at the time of search and seizure he was very much present. The seizure list (Ext. 1) shows that the respondent received a copy thereof and made an endorsement (Ext. 1/2) with his signature by putting a seal with the following description :
“GOPABANDHU CLINIC,
Dr. Dolagobinda Nanda,
D. H. M. S. ( Homeo )
S. A. F. M. S. ( R. M. P. )
At/P. O. NACHUNI ( Dist Puri)
ORISSA”
There is no doubt that the respondent describing himself as a Homoeopathic medical practitioner owned Gopabandhu Clinic from which the drugs were seized. It is also clear that the drugs were stocked inside the clinic.
13. For applicability of the provisions of the Act the medicines seized from the clinic of the respondent must be drugs within the definition of Section 3(b) of the Act which is quoted below for easy reference
“3. Definitions :-In this Act, unless there is anything repugnant in the subject or context.
xx xx xx
(b) “Drug” includes
(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals ; and
(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette”;
In order to illustrate that the medicines seized were drugs it is necessary to refer to the enclosure of the seizure list (Ext. 1) which is a part thereof. All the items are medicines used for treatment of patients, such as, item No. 4 Phensedyl Cough Syrup, manufactured by a reputed drugs manu- facturer, May &. Baker, Bombay, item No. 5 Ferradol, manufactured by another reputed drugs manufacturer, Parke Davis, item No. 7 Mondelamine, manufactured by Warner, item No. 10 Livomyne Syrup manufactured by Charak Pharmaceutical, Bombay, item No. 11 Denmo Quino, manufactured by East India Pharmaceutical and many other patent medicines manuf- actured by different drugs manufacturers of, India and abroad. It is, therefore, beyond the pale of any controversy that the patent medicines stocked by the respondent were all drugs within the meaning of Section 3(b) of the Act.
14. It is now necessary to consider the charges in order to find as to what offences were committed by the respondent. The first charge is contravention of Section 18(c) punishable Under Section 27(a)(ii) of the Act. Section 18(c) and 27(a)(ii) are quoted below for easy reference :
“18. Prohibition of manufacture and sale of certain drugs and cosmetics. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf.
XX XX XX . (c) manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter. xx xx xx 27. Penalty for manufacture, sale etc., of drugs in contra- vention of this Chapter. Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes. (a) any drug- xx xx xx (ii) without a valid licence as required under Clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be Iess than one year but which may extend to ten years and shall also be liable to fine. Provided that the Court may for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year.
It was not disputed that Section 18 of the Act came into force in the State of Orissa on 1-4-4947 as notified in the Orissa Gazette dated 18-10-1948, Part III, page 225 except Section 10(a)(iii) which came into force on 1-10-1948 which was also notified in the Orissa Gazette (for this information reference may be made to the note below Section 18 at page 21 of the AIR Manual Vol. 16, 4th Edn.). It has been found on scrutiny of oral and documentary evidence that 49 items of patent medicines which were drugs were stocked by the respondent in his clinic. In his statement Under Section 313 of the Code the respondent stated that he had no drug licence to stock the drugs. He did not produce any such licence showing that he was authorised to stock the drugs. It is, therefore, established beyond any reasonable doubt that the respondent contravened Section 18(c) punishable Under Section 27(a)(ii) of the Act.
15. The second charge is that the respondent did not produce the purchase invoices of the drugs seized from Ms possession in order to ascertain from whom he had acquired them for which he contravened Section 18A punishable Under Section 27(b) of the Act. Section 18A is quoted for eas reference :
“18A. Disclosure of the name of the manufacturer, etc- Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.”
Contravention of Section 18A is punishable Under Section 28 and not Section 27(b) of the Act. Section 28 is reproduced below :
“28. Penalty for non-disclosure of the name of the manufacturer, etc. Whoever contravenes the provisions of Section 18A shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees, or with both.
Learned Judicial Magistrate who framed the charge committed a mistake in quoting the wrong penal section obviously because, he did not refer to the Act. P. W 1 stated that he asked for the purchase invoices to ascertain the names, addresses and other particulars of the persons from whom the respondent has acquired the drugs, but the latter did not produce the documents. This was undoubtedly an incriminating circumstance against the respondent. But the learned Judicial Magistrate while examining the respondent Under Section 313 of the Code did not bring this incriminating circumstance to the notice of the respondent by putting a specific question so as to give him a reasonable opportunity of furnishing his explanation. In AIR 1984 S. C. 1622, Sharad Birdhichand Sarda v. State of Maharashtra, it was held that unless an incriminating circumstance is put to the accused during his examination Under Section 313 of the Code, the same cannot be used against him. This being the settled-position of law and the learned Judicial Magistrate having not put this incriminating fact while examining the respondent Under Section 313 of the Code, I am afraid, the respondent cannot be found guilty for contravention of Section 18A punishable Under Section 28 of the Act.
16. There is yet another charge which is ;
“Thirdly :-That you, on or about the same day, time and place were found not to be a registered medical practitioner as required Under Section 2(cc) of the Drugs and Cosmetic Rule read with Section 18(a)(vi) of the said Act and thereby committed an offence punishable Under Section 28 of the Drugs and Cosmetics Act and within my cognisance.”
This charge has not been properly framed and has not also been discussed in the impugned judgment. No evidence was adduced to prove that the respondent practised as an Allopathic Doctor. The respondent will be prejudiced if this charge is taken up for consideration for the first time in appeal. Therefore, this charge does not deserve consideration.
17. In the ultimate analysis, on reappraisal of the prosecution evidence, the first charge for contravention of Section 18(c) punishable Under Section 27(a)(ii) of the Act has been established against the respondent beyond reasonable doubt. The other two charges, however, have not been established. Although it is an appeal against an order of acquittal two views cannot possibly be taken. Therefore, the order of acquittal for the charge Under Section 27(a)(ii) for contravention of Section 18(c) of the Act cannot be supported and must have to be reversed.
18. Now the question of sentence. Section 27(a)(ii) provides punishment of imprisonment which may extend to ten years subject to a minimum of one year, as well as, fine. But a discretion has been given to the Court to impose a sentence of imprisonment of less than one year by recording special reasons in writing The reason for providing heavy punishment seems to be that unskilled and ignorant persons and those who have no knowledge of chemicals and drugs should not deal with drugs in any manner. It is also too dangerous for ordinary persons to manufacture stock and sell drugs. The respondent in this case had stocked 49 items of drugs which were seized from him. All of them were patent medicines. The prosecution was lodged in the year 1975 and a decade has already elapsed. At this distant point of time sentence of heavy imprisnment is unwarranted. A light sentence will serve the ends of justice. In the facts and circumstances of the case, I am of the view that a sentence of imprisonment of three months and a fine of Rs. 1000/- (rupees one thousand only), in default, to undergo imprisonment for three months more will be sufficient punishment for the respondent
19. In the result, the appeal is allowed in part. The impugned order of acquittal is partly set aside. The respondent is found guilty under. Section 27(a)(ii) for contravention of Section 18(c) of the Act and is convicted thereunder. He is sentenced ‘to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1000/- (rupees one thousand only ), in default, to undergo simple imprisonment for three months more. The seized drugs should be destroyed.