JUDGMENT
P.K. Misra, J.
1. The petitioner has been convicted Under Sections 27(d) and 28 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the “Act”) and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for four months under the former charge and rigorous imprisonment for two others under the latter charge. Both . the sentences were directed to run concurrently. The said order of conviction and sentence having been confirmed by the appellate Court, the present revision has been filed.
2. The prosecution case is as follows :
The accused is the Proprietor of M/s.. Das Ausadhalaya, a medicine shop in village Indupur. On 8.8.1988, the Drugs Inspector (P.W. 1) along with the Assistant Drugs Controller (P.W.3) raided and searched the medicine shop of the accused who was not present at the time of search. The shop was being managed by the salesman (P.W. 2). In course of search, it was found that the accused had stocked and exhibited the scheduled drugs for sale which he was not entitled under the provisions of licences, Ext. 9 and 10, granted to him. The accused was called upon by registered letter (Ext. 6) to produce the details of purchase of the scheduled drugs, but he failed to disclose the name of the manufacturer. It was, therefore, alleged that the accused had committed offences under Sections 27(d) and 28 of the Act.
3. The plea of the accused was one of denial. It was pleaded that his shop had not been raided and P.W. 2 was not a salesman. One defence witness was examined in support of the plea of the accused.
4. The prosecution examined apart from the three witnesses already introduced, the Proprietor of M/s. Sarojini Medicine Store (P.W. 4) of Pattamundai to prove search and seizure and the sale of medicines to M/s. Das Ausadhalaya. Relying upon the evidence of P.Ws. 1, 2 and 3, the trial Court found that the medicine shop of the petitioner had been searched and the drugs as per M.Os. I to XVII had been seized vide Seizure-list (Ext. 1). It was further found that the accused was not authorised to stock the scheduled drugs and as such, he was liable Under Section 27(d) of the Act. It was also found that the accused had not disclosed the name of the manufacturer from whom the scheduled drugs had been purchased, thereby committing an offence Under Section 28 of the Act. These findings have been confirmed by the appellate Court.
5. The learned counsel for the petitioner has raised the following contentions :
(1) The licences as per Exts. 10 and 11 indicate the Khata number and plot number on which the shop of the petitioner was located, but the prosecution has not tried to establish the identity of the shop searched;
(2) The search and seizure were not effected in presence of any independent witnesses and since the question of identity was involved, the petitioner has been prejudiced due to such infraction of the provision contained in Section 100, Code of Criminal Procedure;
(3) There is no evidence on record to indicate that the medicines allegedly seized had been stocked or exhibited for sale; and
(4) In the licences produced by the prosecution, the list of medicines which could not be stocked, had not been indicated.
The learned counsel for the State has supported the reasoning of both the Courts below.
6. Contention Nos. 1 and 2 being inter-connected are taken up together. The question is relating to identity of the shop from which the drugs were allegedly seized. P.Ws. 1 and 3, the two officials who did not know the petitioner, went to the shop of the petitioner for the first time and as such, they had no personal knowledge as to whether the shop from which the medicines were seized belongs to the petitioner or to any other person. As the Khata number and plot number had been indicated in the licences, the identity of the shop could have been established beyond reasonable doubt through the help of Revenue Inspector by measuring the disputed premises. The lower appellate Court though conscious of this position has tried to brush aside the argument by observing that it was not practicable. In the present case, admittedly the search had taken place at a time when the petitioner was absent. According to the prosecution, P.W. 2. the salesman of the shop in question, was present. However, even P.W. 2 himself has stated that he was not the salesman of the shop though he has stated that he was assisting at times the petitioner in selling medicine, particularly during the latter’s absence. The evidence of P.W. 2 would have been otherwise sufficient to nail the accused person, but for the fact that he himself appears to be the owner of another shop in the very same village. This fact has been established during the evidence of P.W. 4 as well as the evidence of D.W. 1. Since P.W. 2 himself was a shop owner in the very same village, the mere ipso dixit of P.W. 2 that the shop of the accused person was raided while he was present in the shop has to be taken with a pinch of salt. In the above back-ground, the question of complying with the Section 100, Cr. P.C, while effecting search and seizure assumes more importance. Admittedly, the shop in question was in a busy locality, as evident from the evidence of P.Ws. 1 and 3 and many other shops were there. The search took place at 11.30 A.M. at a time when the market area bustles with activity and as such, it can safely he concluded that many other persons were available in the locality and could have been called upon to witness the search and seizure. It is not the case of the prosecution that they wanted to take the assistance of independent witnesses and the witnesses declined to do so. As a matter of fact, it is evident from the evidence of P.W. 1 that no attempt was made to secure the presence of any independent witness at the time of search and seizure. Keeping in view the question relating to identity, it would have been better for the prosecution to effect the search and seizure in the presence of two independent witnesses, as contemplated in Section 100, Cr. P.C. Since P.W. 1 and 3 had no idea about the shop and P.W. 2 himself is the owner of a medicine shop and since there is no material on record to indicate that there was any signboard relating to M/s. Das Ausadhalaya in front of the shop, the absence of any independent witness at the time of search and seizure is very significant. A doubt is indeed, raised regarding the identity of the shop.
7. In view of the findings recorded above, it may not be necessary to delve into the other submissions raised by the petitioner. However, since many interesting points have been raised, it is better to dispose of those contentions. The contentions to the effect that the seized drugs in question had not been stocked or exhibited for sale cannot be accepted. The seizure-list indicates that large quantities of drugs had been seized. Keeping in view the quantity of the drugs seized, the only reasonable inference can be that the drugs in question had been kept for sale. If the quantity of the drugs found would have been minimal, a doubt could have been raised as to whether the drugs had been kept for personal consumption. However, keeping in view the quantity of the drugs, there cannot be any doubt that the drugs must have been stocked for sale in the shop.
8. The next question relates to non-mention of the drugs which could not be stocked. A perusal of the licences produced by the prosecution indicates that though it has been mentioned in the licence “list of drugs enclosed”, no such list has been produced. It is however, argued that the list is in accordance with the schedule of the Rules made under the Act Even then, it was required to be filled up in the licence itself, otherwise, it could have been simply indicated in the licence that drugs as per the schedule given in the Rules are not to be stocked or sold. Since the licence itself indicates that the list is annexed, non-production of the list annexed creates a doubt. It is, of course, true that the accused himself was in possession of the licence and he could have produced it to show as to whether the list had been annexed or not. However, since the burden was on the prosecution to prove its case beyond doubt, it was the duty of the prosecution to prove the list containing the names of drugs which could not be stocked by the licensee. Therefore, even assuming that the drugs had been seized from the shop of the petitioner, in the absence of any list, it cannot be assumed that any conditions of the licence had been violated.
9. The learned counsel for the petitioner has also submitted that there is no evidence on record to show that Ext. 4, the letter calling upon the accused to indicate the source from which the medicines had been purchased, had been served on the accused. The letter purports to have been posted by registered post with acknowledgement due. Merely because the copy of the letter has been produced by the prosecution, it cannot be assumed in the absence of any other evidence that the letter had been sent by registered post. If the letter had been served on the accused, the acknowledgment due could have been produced. Even for raising a presumption that the letter must have been served, the prosecution should have produced the receipt indicating that the letter had been posted by registered post. In the absence of any such steps for proving the acknowledgment due, or the receipt, it must be held that there is no material on record to prove that the letter (Ext. 6) had been served on the accused.
10. In view of the aforesaid conclusions, the accused must be acquitted of the charge Under Sections 27(d) and 28 of the Act. The Criminal Revision is accordingly allowed.