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
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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
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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
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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
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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.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006