High Court Kerala High Court

T.T.Thomas vs State Of Kerala on 7 October, 2008

Kerala High Court
T.T.Thomas vs State Of Kerala on 7 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 198 of 2008()


1. T.T.THOMAS, S/O.T.K.THOMAS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY PUBLIC
                       ...       Respondent

2. G.ASOKA KUMAR, DRUGS INSPECTOR,

                For Petitioner  :SRI.K.S.HARIHARAPUTHRAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :07/10/2008

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
            Crl.R.P. NO.198     OF 2008
            ===========================

      Dated this the 7th day of October,2008

                       ORDER

Petitioner was concurrently convicted and

sentenced for the offence under section 3(a) of

Kerala Drugs and Other Stores (Unlawful Possession)

Act by Chief Judicial Magistrate, Pathanamthitta.

Conviction and sentence were confirmed by

Additional Sessions Judge, Pathanamthitta in

Crl.A.143/2006. The conviction and sentence are

challenged in this petition filed under section 397

read with section 401 of Code of Criminal

Procedure.

2. Prosecution case was that PW2 the Drug

Inspector, Pathanamthitta during 2001 along with

PW1 another Drug Inspector on 8.4.2002 at about 7

p.m inspected the wholesale sale drug store by

name Premier Pharma Lines housed in building

No.4/458, K.K. Road,Kozhencherry. During

inspection they found 250 I.V. canulas meant

CRRP 198/2008 2

exclusively for the use of Government institutions

inside the shop. PW1 found sticker pasted over

the label of each I.V canulas and in the stickers

it was printed as Rs.48/- inclusive of all taxes.

PW1 removed the stickers. It was found that

beneath the sticker it was printed Kerala

Government Supply. PW2 seized 250 Nos.I.V canulas

after preparing Ext.P5 mahazar. PW2 furnished a

copy of Ext.P5 to petitioner and got his

acknowledgement. PW2 seized all the 250 I.V.

Canulas. PW2 also seized Ext.P4 bill book which

was available in the shop, wherein the original

bill was pasted in the carbon copy at page 1899.

In the original bill, Rs.120/- was noted. When

the original bill found pasted was removed, it was

found that the carbon copy of the bill showed an

amount as Rs.38,700/-. The prosecution case is

that I.V canulas seized from the shop of the

petitioner are exclusively meant for the use at

Government Hospitals and petitioner has committed

the offence under section 3(a) of the Kerala Drugs

CRRP 198/2008 3

and Others Stores (Unlawful Possession) Act. PW2

lodged the complaint which was taken cognizance

by learned Magistrate. When particulars of the

offence was read over and explained to the

petitioner, he pleaded not guilty. On the side of

the prosecution Pws. 1 to 3 were examined and MO1

series the I.V canulas seized from the shop of the

petitioner were identified. Exts.P1 to P9 were

also marked. On the side of the defence Ext.D1 one

page of Ext.P4 bill book was marked. No witness

was examined for defence. Learned Magistrate on

the evidence found that M01 series of canulas were

sent by the manufacturers Eastern Medikits Ltd as

proved by Ext.P7 reply for the use of Government

Hospitals alone and they cannot be sold outside.

Learned Magistrate also found that evidence of PW2

supported by PW1 establish that PW2 accompanied

by PW1 inspected the wholesale drug store at

Kozhencherry and seized MO1 series under Ext.P5

mahazar and M01 series were in the possession of

petitioner and he could not give any explanation

CRRP 198/2008 4

for their possession and petitioner committed the

offence under section 3(a) of the Kerala Act. He

was convicted and sentenced to simple imprisonment

for three months and a fine of Rs.1000/- and in

default simple imprisonment for ten days.

Petitioner challenged the conviction and sentence

in Crl.A.143/2006. Learned Additional Sessions

Judge reappreciated the evidence and confirmed the

conviction and sentence. It is challenged in this

revision.

3. Learned counsel appearing for petitioner

was heard.

4. Learned counsel argued that courts below

did not properly appreciate the evidence and based

on Ext.P5 mahazar and the evidence of Pws.1 and 2,

it should not have been found that petitioner was

in possession of MO1 series of I.V canulas and no

independent witness was examined. It was also

argued that provisions of Section 5(2) of the Act

was not complied with and in such circumstance,

conviction is not sustainable.

CRRP 198/2008 5

5. Learned Public Prosecutor submitted that

both the trial court and the appellate court

appreciated the evidence in the proper perspective

and appreciation of evidence was not perverse and

there is no reason to reappreciate the evidence and

even if evidence is reappreciated, findings of

courts below is perfectly correct and there is no

reason to interfere with the conviction and

sentence.

6. Section 3 of the Kerala Drugs and Other

Stores (Unlawful Possession) Act,1971(hereinafter

referred to as the Act) provides punishment for

unlawful possession of drugs or other stores. As

defined under clause (a) of Section 2 of the Act,

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 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

CRRP 198/2008 6

vermin or insects which cause disease in human

beings or animals as may be specified from time to

time by the Government including such substances

which have been specified by the Central Government

under section 3(b)(ii) of the Drugs and Cosmetics

Act, 1940 before the commencement of Act are drugs.

As defined under clause (d) of Section 2, “Other

stores” includes articles of linen instruments or

appliances acquired by the Health Department, the

Animal Husbandry Department or the Department of

Indigenous Medicine of the Government of Kerala

and having such seal or mark as may be notified by

the Government in this behalf indicating that they

belong to the Health Department, the Animal

Husbandry Department or the Department of

Indigenous Medicine of the Government of Kerala.

The evidence of Pws. 1 to 3 with M01 series

conclusively establish that M01 series of I.V

canulas contained the seal indicating that they

belong to the Health Department of Government of

Kerala. Evidence of PW2 establish that to ascertain

CRRP 198/2008 7

the facts, he addressed the manufacturers Eastern

Medikits Ltd and Ext.P7 reply received conclusively

prove that MO1 series were supplied by the Company

to Medical College, Thiruvananthapuram and they are

other stores as defined under section 2(d) of the

Act.

7. Section 3 of the Act reads:-

“3. Unlawful possession of

drugs or other stores:- If

any person is found or is

proved to have been in

possession of-

(a) any drug having any seal

or mark on it or on packages

or containers thereof

indicating that it belongs to

the Health Department, the

Animal Husbandry Department

or the Department of

Indigenous Medicine of the

Government of Kerala, or

CRRP 198/2008 8

having such seal or mark

removed, defaced or in any

manner tampered with; or

(b) other stores including

such stores the seal or mark

over which has been removed,

defaced or in any manner

tampered with, and which is

or are reasonably suspected

of being stolen or unlawfully

obtained, such person shall,

if he cannot account

satisfactorily as to how he

came into possession thereof,

be punished with imprisonment

for a term which shall not be

less than six months but

which may extend to two years

and with find which shall not

be less than one thousand

rupees.

CRRP 198/2008 9

Provided that the court may

for any adequate and special

reasons to be mentioned in

the judgment, impose a

sentence of imprisonment for

a term of less than six

months or of fine of less

than one thousand rupees or

of both imprisonment for a

term of less than six months

and fine of less than one

thousand rupees.”

Under section 3, if any person is found or is

proved to have been in possession of any drug

having any seal or mark on it or on packages or

containers thereof indicating that it belongs to

the Health Department or having such seal removed,

defaced or in any manner tampered with and which

is or reasonably suspected of being stolen or

unlawfully obtained, such person shall, if he

cannot account satisfactorily as to how he came

CRRP 198/2008 10

into possession thereof, be punished with

imprisonment for a term which shall not be less

than six months but which may extend to two years

or with fine which shall not be less than one

thousand rupees. The proviso enables the court to

award a lesser sentence than the minimum after

recording adequate and special reasons to be

mentioned.

8. Section 5 of the Act provides the powers of

the Inspectors. Under clause (a) of sub section

(1) an inspector is competent to enter and search

with such assistance as he considers necessary,

any place in which he has reason to believe that

an offence under the Act has been committed or is

being committed and also to seize such drugs or

other stores which may furnish evidence thereof.

Clause (b) of Section 5 enables the inspector to

examine any record, register, documents or other

material objects found in any place mentioned at

the time of search as provided under clause (a),

if he has reason to believe that it may furnish

CRRP 198/2008 11

evidence of the commission of an offence

punishable under the Act. Sub section (2) of

Section 5 provides that so far as may be,

provisions of Code of Criminal Procedure with

regard to the search shall apply to any search

under the Act. Section 6 provides that where an

Inspector seizes any drug or other stores or any

record, register, document or material object as

provided under section 5, it shall be produced

before a Magistrate having jurisdiction of the

area within 24 hours.

9. Evidence of PW2 is corroborated by PW1 and

Ext.P5 mahazar establish that procedures provided

under the Act were complied. Though learned

counsel argued that as no independent witness was

examined, evidence of Pws.1 and 2 should not have

been accepted by the courts below, Ext.P5 seizure

mahazar the contemporaneous record prepared at

that time establish that it was prepared at 7 p.m

on 8.4.2002. Ext.P5 shows that it was prepared by

PW2 the Drugs Inspector and was also attested by

CRRP 198/2008 12

PW1. Ext.P5 contains endorsement of the

petitioner to the effect that he had received the

copy of the mahazar on the same day immediately

after its preparation. Though no independent

witness was examined, nothing was pointed out to

disbelieve the evidence of Pws.1 and 2. Evidence

of PW1 is corroborated by the evidence of PW2.

Similarly evidence of PW2 is corroborated by PW1.

Their evidence is further corroborated by Ext.P5

prepared at the time of seizure. Evidence

conclusively establish that when Pws.2 inspected

the shop of the petitioner with PW1 M01 series of

250 I.V canulas were found in the wholesale stores

of petitioner and petitioner could not offer any

explanation for its possession. Ext.P4 the bill

book contained Ext.P4(a) entry which corroborates

the evidence of Pws.1 and 2 that above the

original carbon copy of the bill, another bill was

pasted showing the amount as Rs.120/- but the

carbon copy of bill 1899 shows that the amount was

Rs.38,700/-. Evidence of PW3 the Manager of

CRRP 198/2008 13

Eastern Medikits Ltd establish that as sought for

by PW1, Ext.P7 reply was sent by the Company

signed by Raji Varma the Senior Manager which

establishes that MO1 series of I.V canulas were

manufactured in their factory and they were

forwarded to Medical College, Thiruvananthapuram

and it cannot be sold outside and were

manufactured exclusively for use in Government

Hospitals. Evidence therefore establish that M01

series, which were found in the possession of the

petitioner in his shop, are the “other stores” as

defined under section 2(d) of the Act. In such

circumstance, findings of courts below that

petitioner was in possession of MO1 series is

perfectly correct, in the light of the evidence on

record as M01 series are proved to be the ”

other stores” which contains the seals

establishing that they are meant for the use of

only Government Health Department and evidence of

PW3 establish that they were manufactured by their

Company. It is absolutely clear that possession

CRRP 198/2008 14

of M01 series by the petitioner, which are “other

stores” as defined under the Act was unlawful as

provided under section 3 of the Act. Conviction

of the petitioner for the offence under section 3

of the Act is perfectly legal. Though courts

below convicted petitioner under clause (a) of

Section 3, clause (a) applies to unlawful

possession of drugs and clause (b) applies to

unlawful possession of “other stores” as defined

under section 2(d) of the Act. Petitioner can

only be convicted under section 3(b) of the Act.

But whether conviction is under clause (a) or

clause (b), it is as provided under section 3 and

the sentence is also the same. Therefore even if

the conviction is altered to one under section 3

(b) of the Act, it will not cause any prejudice

to the petitioner. Therefore conviction of the

petitioner is modified to one under section 3(b)

of the Act instead of clause 3(a).

10. Then the only question is with regard to

the sentence. Learned Magistrate sentenced

CRRP 198/2008 15

petitioner to simple imprisonment for three

months apart from a fine of Rs.1000/- with default

sentence of simple imprisonment for ten days.

Section 3 provides for a minimum sentence of

imprisonment of six months but which may extend

upto two years and a fine which shall not be less

than Rs.1000/-. The proviso enables the court to

award a sentence than the minimum sentence

provided. But it can only be for adequate and

special reasons. Learned Magistrate has awarded a

lesser sentence of simple imprisonment for three

months for the reason that he is the first

offender and a lenient view is to be taken. The

argument of the learned counsel is that

petitioner is now aged 60 years and therefore

leniency is to be shown and even if substantive

sentence is mandatory the period is to be reduced

to imprisonment till rising of the court.

Considering the nature of the offence, it is not

in the interest of justice to reduce the sentence

as sought for by petitioner especially when

CRRP 198/2008 16

without stating adequate and special reasons as

mandated under proviso to Section 3, learned

Magistrate has awarded a lesser sentence than the

minimum sentence provided. In such circumstance, I

do not find any reason to interfere with the

sentence.

Criminal Revision Petition is disposed

modifying the conviction from Section 3(a) to

Section 3(b) of the Kerala Drugs and Other Stores

(Unlawful Possession) Act and confirming the

sentence.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006