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CR.A/680/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 680 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT & 1 - Appellants
Versus
DULABHRAM
SUNDARDAR AGRAVAL - Respondent
=========================================================
Appearance :
MR
MG NANAVATY ADDL PUBLIC PROSECUTOR
for Appellants : 1 - 2.
MS
ROOPAL R PATEL for Respondent :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/03/2010
ORAL
JUDGMENT
Heard
learned advocate for the parties.
The
appellant – State of Gujarat has preferred this Appeal under
Section 378 of the Code of Criminal Procedure challenging the order
of acquittal dated 22.1.2004 passed by learned Judicial Magistrate
First Class, Morbi in Criminal Case No. 530 of 1996, whereunder, the
accused respondent is acquitted of the charge of committing offence
punishable under Section 27(b) of the Drugs and Cosmetics Act, 1940
(hereinafter referred to as ‘the Drug Act’ for brevity).
It
was the case of the prosecution before the Court that on 18.1.1996,
the Drug Inspector along with panch witnesses visited the dispensary
of the accused, who holds decree of B.S.A.M and is practicing in
Ayurvedic medicine. The accused was found in possession of the
allopathy drug called (i) Metrodex-S expectorant (50ml) produced by
Metro Golden Laboratory, Bombay, (ii) Clofen Plus Tab, produced by
Inconotive Farma Industries, Deesa, (iii) Gama Benzon Hexachloride
Lotion, USP-19 produced by Rajat Pharmaceutical Industries, Bombay,
contrary to the provisions of Section 18(c) of the Drug Act. As he
did not have licence to keep those drugs nor was he be competent,
being a medical practitioner, under Section 2(ee) of the Registered
Medical Practitioner Act and there was no licence obtained for
holding such drugs, as required under Section 18(c) of the Drug Act,
Thus, he has committed an offence punishable under Section 27(b) of
the Drug Act.
The
accused in his further statement under Section 313 of the Code of
Criminal Procedure, gave an explanation that one Shivlal Prabhulal
of his village had came to show him those drugs as to whether they
were proper drugs for his ailment and had forgotten them there. The
said person Shivlal Prabhulal also had been examined as defence
witness at Exh. 50, who testified to the said effect. The defense
contended that the intention and action of stocking drug for a sell
is an essential ingredient and that being absent, the conviction
cannot be recorded. The Court accepted the defence and acquitted the
accused vide order dated 22.1.2004, which is impugned in present
Appeal under Section 378 of the Code of Criminal Procedure.
Shri
Nanavaty, learned APP appearing for the appellant State has
contended that there cannot be any dispute with regard to
proposition of law for convicting a person for offence punishable
under Section 27(b) of the Drug Act. Mere stocking of the drug is
not sufficient but prosecution has to establish the stocking of the
drug with an intention to sell, which could be inferred by way of
exhibiting the same or stocking it in large scale. But reasoning of
the trail Court in respect that accused – respondent being Ayurvedic
practitioner, he can stock allopathy medicine, cannot be a reason
sustainable in eye of law for acquittal.
Ms.
Roopal Patel, learned advocate appearing for the respondent accused
has contended that the respondent has right to support the order of
acquittal on any other one ground, which is validly available in
support of acquittal. The factum with regard to lack of essential
ingredient for bringing home the conviction namely intention to sell
or establishing the stock intended to be sold being not available,
the order of acquittal may not be interfered with. Relying upon the
decision of the Apex Court in case of Mohd. Shabbir Vs.
State of Maharashtra, reported in AIR 1979 SC 564, she
submitted that the acquittal order may not be interfered with under
Section 378 of the Code of Criminal Procedure.
This
Court is in complete agreement with the submissions canvassed by
learned advocate for the respondent. Section 18(c) of the Drug Act
reads as under :-
“Section
18(c) :[manufacture for sale or for distribution, or sell, or
stock or exhibit or offer 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;”
Now
plain reading of this Section clearly shows that mere stocking in
itself without any licence would not be sufficient for bringing home
guilt punishable under Section 27(b) of the Drug Act and keeping the
Apex Court decision in mind, this Court is of the view that the
prosecution cannot be said to have established essential ingredient
of requiring for bringing home guilt on the part of accused.
It
is required to be noted that entire case of the prosecution was in
respect of stocking aforesaid three drugs without license under
Section 18(c) and person holding B.S.A.M. decree being not exempted
under Section 2 (ee) of the Registered Medical Practitioner act,
would not be required to be examined as the entire case could be
decided on interpretation of Section 18(c) and requirement of
ingredients for stocking of medicine, therefore this Court does not
dwell much upon the reasoning given by learned Judge on other
issues. The contention raised by Shri Nanavati with regard to
accused respondent being Ayurvedic Practitioner was not entitled to
exemption under the relevant clause is not to be decided at this
stage in this appeal in view of the fact that though there is a one
judgment of Punjab & Hariyana High Court in case of Swaran
Singh Vs. State of Punjab
reported in AIR 1987 P&H 81. So far as the State of
Gujarat is concerned, it is required to be noted that there are
matters pending on this issue and therefore, without detail
examination, it would not be proper for this Court to deal with this
submission as this stage as it is stated hereinabove, acquittal
otherwise is also sustainable on the ground of stock not being
proved to be kept for sell, is sufficient ground for sustaining the
acquittal. Therefore, the acquittal is sustained. Sustaining of
acquittal may not be proved as approving the entire reasoning of the
Court for recording acquittal. At the same time, as it is stated
hereinabove, this Court has not opined about the contention with
regard to Ayurvedic Practitioner entitle to exemption in view of the
fact that acquittal was otherwise sustainable on the facts and
circumstances mentioned hereinabove. The Criminal Appeal, therefore
fails and is accordingly, dismissed. Bail
bond stands cancelled.
(S.R.BRAHMBHATT,
J.)
pallav
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