REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._1493____OF 2018  (Arising out of SLP (Crl.) No.8452 OF 2015)

STATE REP. BY THE DRUGS INSPECTOR               …Appellant

VERSUS

MANIMARAN           …Respondent

J U D G M E N T  

R. BANUMATHI, J.

Leave granted.

2. This  appeal  arises  out  of  the  judgment  dated  12.09.2014

passed by the High Court of Madras in Criminal R.C. No.1493 of

2013 in and by which the High Court set aside the conviction of the

respondent-accused under Sections 27(b)(ii)  and 28 of the Drugs

and  Cosmetics  Act,  1940  and  the  sentence  of  imprisonment

imposed upon the respondent-accused.

3. Briefly stated case of the prosecution is that the respondent

was running a medical shop viz., M/s. Sri Balaji Medicals. On the

directions issued by the Assistant Director of Drugs Control, Salem

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Zone, the Drugs Inspectors had inspected the respondent’s medical

shop on 17.12.2008. In the course of inspection, it was found that

certain drugs were stored without a valid drug licence and the same

were seized.  A memo dated 22.12.2008 had been issued to the

respondent-accused alleging contravention of Section 18(c) of the

Drugs and Cosmetics Act, 1940. The respondent had caused reply

(Ex.-P4) to the said memo without furnishing details of purchase.

The Drug Inspector has filed a charge sheet against the respondent

informing commission of offence punishable under Sections 27(b)(ii)

and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration

of  evidence, the trial  court  after  referring to Ex.-P4 held that  the

respondent has admitted that he has no licence to the premises for

sale of drugs. The trial court further held that Exs.P-4 to P-7 though

were carbon copies, as per Section 62 of the Indian Evidence Act,

they  can  also  be  considered  as  primary  evidence.  On  those

findings, the trial court convicted the respondent and sentenced him

to undergo rigorous imprisonment for one year and imposed fine of

Rs.5000/- under Section 27(b)(ii) of the Drugs and Cosmetics Act

and fine of Rs.500/- under Section 28 of the Drugs and Cosmetics

Act.  Aggrieved  by  the  verdict  of  conviction  and  the  sentence  of

imprisonment,  respondent-accused  preferred  an  appeal  in

Criminal Appeal No.18 of 2013 before the appellate court-Principal

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Sessions Judge, Krishnagiri which was dismissed vide order dated

29.08.2013.  

4. In the revision petition filed before the High Court, the High

Court reversed the conviction and acquitted the respondent holding

that  non-examination  of  erstwhile  owners  namely  Jayanthi  and

Kamalakannan in whose name pharmacy licence stood was fatal to

the prosecution case. The High Court also referred to the defence

that the signature of the respondent was obtained on blank papers

in which Exs.P-4, P-7 and P-10 were prepared.  

5. Learned counsel for the appellant-State has submitted that the

High Court has failed to consider that the respondent without having

a valid licence stocked and selling the drugs and that he did not

disclose  the  name  of  the  supplier  of  the  drugs,  which  is  a

punishable  offence  under  the  provisions  of  the  Drugs  and

Cosmetics Act. It was further submitted that the High Court erred in

allowing the revision on the ground that the signature in Exs.P-4, P-

7 and P-10 were obtained on blank papers and that the respondent

had failed to prove such fact. It was also submitted that in the light

of  the  admission  made  by  the  respondent  in  Ex.-P4,  non-

examination of Kamalakannan in whose name the pharmacy licence

stood and one Jayanthi in whose name the shop stood was not fatal

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and  the  High  Court  erred  in  reversing  the  conviction  of  the

respondent.

6. Per  contra,  the  learned  counsel  for  the  respondent  has

submitted  that  the  prosecution  has  failed  to  prove  that  the

respondent is the owner of  M/s Sri  Balaji  Medicals and the non-

examination  of  Kamalakannan  and  Jayanthi  was  fatal  to  the

prosecution  case.  Learned  counsel  further  submitted  that  the

alleged statement of the respondent in Exs.P-4, P-7 and P-10 relied

upon by the prosecution were only carbon copies and the courts

below could not have based the conviction upon Exs.P-4, P-7 and

P-10 and that the High Court has rightly reversed the same.

7. We have considered the rival submissions and perused the

impugned judgment and materials placed on record.

8. At  the  time  of  inspection  of  the  medical  shop  of  the

respondent  located at  191,  Main  Road,  Bargur  on 17.12.2008,  it

was found that the retail  medical  shop was functioning without a

valid  licence  in  violation  of  Section  18(c)  of  the  Drugs  and

Cosmetics Act. It was also noticed that eighty-seven items of drugs

were  stocked  without  possessing  a  valid  drug  licence.  The

respondent was prosecuted for contravention of (i) Section 18(c) of

the Drugs and Cosmetics Act  for  having stocked and sold drugs

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without a valid drug licence which is punishable under Section 27(b)

(ii)  of the Drugs and Cosmetics Act;  and (ii)  Section 18(a) of the

Drugs and Cosmetics Act for not furnishing the name of the supplier

of the drug which is punishable under Section 28 of the Drugs and

Cosmetics Act.  

9. The High Court  has set  aside the conviction mainly  on the

ground  of  non-examination  of  one  Kamalakannan-the  person  in

whose  name  the  pharmacy  licence  stood  and  one  Jayanthi  in

whose name the shop stood. The High Court did not keep in view

that under       Ex.-P4, the respondent has admitted that he had

purchased the retail shop-M/s Sri Balaji Medicals from one Jayanthi

and that he had shifted the shop from the old place to the current

premises  No.191,  Main  Road,  Bargur  and  selling  the  drugs.

Relevant portion of Ex.P4 reads as under:-

“I  have purchased the retail  Sri Balaji  Medicals two years before from Mrs. Jayanthi,  but there is no sale deed made. Further the licence of this concern was expired on 31.12.2007 and not applied for the renewal. Meanwhile I have shifted the said shop from the old place  to  the  current  premises  No.191,  Main  Road,  Bargur  and selling the drugs. There is no licence to this premises for sale of drugs either in my name or any other name. I have purchased the drugs against the old licence stood on the old address 226, Main Road, Bargur. I hereby inform you that there is no licence for the inspected premises that is 191, Main Road, Bargur. I was not aware of the Drugs and Cosmetics Act and its Rules since it is first time.”

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In Ex.-P4, the respondent thus admitted having purchased the shop

from Jayanthi and that he had no licence for sale of drugs either in

his name or in any other name.  

10. In  Ex.-P7  also,  the  respondent  had  admitted  that  he  had

purchased  the  retail  shop-M/s  Sri  Balaji  Medicals  from

Kamalakannan and continually  selling  the drugs and that  on the

date  of  inspection  i.e.  on  17.12.2008,  he  did  not  have  the  valid

licence. Both in Exs.P-4 and P-7, the respondent had stated that he

was not aware that he has to obtain licence in his own name and

apologising for the mistake and requesting for issuance of licence in

his name. The High Court, in our considered view, did not keep in

view Exs.P-4 and P-7.  

11. Under Section 18(c) of the Drugs and Cosmetics Act, licence

is required for  sale of  any drug. Under  Section 18(c)  of  the Act,

stocking  or  storing  of  drugs  for  sale  cannot  be  done  without  a

licence.  Respondent  is  charged for  having  stored  drugs  for  sale

without licence. Before a person is convicted under Section 18(c)

read with Section 27(b)(ii) of the Act, the prosecution must establish

that the drugs are stocked or stored for sale without licence.

12. On  the  date  of  inspection  i.e.  on  17.12.2008,  when

N. Banumathi, Drugs Inspector (PW-1) inspected the respondent’s

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shop, he did not have any licence. He only stated that he was not

aware that he has to obtain the licence. When the respondent has

stocked the drugs and was selling the same without licence, there

was violation of Section 18(c) of the Act which is punishable under

Section 27(b)(ii) of the Act. The Drugs and Cosmetics Act, 1940 is a

social statute which provides for checks and balances so that drugs

are sold strictly only by the licence-holder or that the adulterated

drugs  are  not  sold.  From  the  evidence  of  PW-1  and  from  the

admission of the respondent in Exs. P-4 and P-7, the prosecution

has established that the respondent did not have licence for sale of

the drugs.

13. Further during investigation, PW-1 had asked the respondent

through Ex.-P3 to disclose that from whom he had purchased the

eighty-seven kinds of drugs. In his reply letter (Ex.-P4), he has not

disclosed that from whom he had purchased the eighty-seven kinds

of drugs and he had admitted the contraventions by stating that he

was not aware of the procedure to obtain the licence. Respondent

has  only  apologised  for  the  mistake  and  requested  to  issue  the

licence. In the light of the admission of the respondent in Exs.P-4

and  P-7,  non-examination  of  licence  holder  Kamalakannan  and

shop owner Jayanthi was not fatal to the prosecution case. When

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both the trial court as well as the first appellate court held that non-

examination of those two witnesses was not fatal, the High Court in

exercise of its revisional jurisdiction was not right in reversing the

said finding and held that non-examination of Kamalakannan and

Jayanthi was fatal to the prosecution case.  

14. Learned  counsel  for  the  respondent  has  submitted  that

Exs.P-4 and P-7, that is, the statements of respondent were only

carbon  copies  and  that  admission  of  such  carbon  copies  raises

serious doubt about the prosecution case. As pointed out by the trial

court as well as by the first appellate court, under Section 62 of the

Indian Evidence Act, carbon copies can be taken into consideration

as primary evidence and we find no infirmity in admitting carbon

copies of those documents.

15. Yet another contention advanced by the respondent is that his

signatures were obtained on blank papers and that  Exs.P-4,  P-7

and  P-10  have  been  made  using  the  signed  blank  papers.  As

pointed  out  by  the  courts  below,  if  at  all  the  signature  of  the

respondent in       Exs.P-4, P-7 and P-10 were obtained on blank

papers, the respondent could have lodged a police complaint or a

complaint before the higher officers of PW-1 or at least could have

caused a legal notice to the complainant. But that was not to be so.

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There  is  no  merit  in  the  contention  of  the  respondent  that  his

signature in Exs.P-4, P-7 and P-10 were obtained on blank papers

and is only an afterthought of the respondent.

16. Upon consideration of the evidence, both the trial court as well

as  the  first  appellate  court  convicted  the  respondent  under

Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act.  When

there  is  concurrent  findings by the  courts  below,  the  High  Court

ought  not  to  have  interfered  with  the  same  in  exercise  of  its

revisional jurisdiction. The revisional jurisdiction of the High Court is

different  from  the  appellate  jurisdiction.  The  High  court  will  not

normally  interfere with the concurrent  findings of  fact,  unless the

findings of fact arrived at by the courts below is perverse or that the

court has ignored the material evidence while arriving at that finding.

As  held  in  State  of  Kerala  v.  Puttumana  Illath  Jathavedan

Namboodiri (1999)  2  SCC  452,  ordinarily  it  would  not  be

appropriate  for  the  High  Court  to  reappreciate  the evidence  and

come to its own conclusion on the same when the evidence has

already  been  appreciated  by  the  Magistrate  as  well  as  by  the

Sessions  court  in  appeal.  When  the  courts  below  recorded  the

concurrent findings of fact, in our view, the High Court was not right

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in interfering with the concurrent findings of fact arrived at by the

courts below and the impugned order cannot be sustained.

17. Insofar as the sentence of  imprisonment, the offence under

Section 18(c) of the Act punishable under Section 27(b)(ii) of the Act

which prescribes minimum sentence of imprisonment for one year

and  minimum  fine  of  rupees  five  thousand.  As  per  proviso  to

Section 27(b)(ii) of the Act, for any adequate and special reasons to

be recorded in  the judgment,  court  may impose the sentence of

imprisonment for a term less than one year and a fine of less than

five thousand only. In this case, the offence was committed in the

year 2008, about ten years back. The respondent was not having

any prior  conviction under the Act.   As pointed out  earlier,  in his

statement, respondent had stated that he was not aware that he has

to  obtain  a  licence  for  sale  of  drugs.  Considering  the  facts  and

circumstances of the case, in our considered view, in the interest of

justice proviso to Section 27(b)(ii) of the Act can be invoked and the

sentence  of  imprisonment  of  one  year  imposed  upon  the

respondent is reduced to three months.  

18. In  the  result,  this  appeal  is  allowed  and  the  impugned

judgment  dated  12.09.2014  in  Criminal  R.C.No.1493  of  2013

passed by the High Court of Madras is set aside. The conviction of

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the respondent under Sections 27(b)(ii)  and 28 of the Drugs and

Cosmetics Act, 1940 is affirmed and the sentence of imprisonment

imposed upon him is reduced to three months, while maintaining the

fine of Rs.5,000/-.   The respondent shall surrender within a period

of four weeks to serve the remaining sentence, failing which he shall

be taken into custody.

………………………….J.                                                                        [R. BANUMATHI]

……………………………J.                                                                   [INDIRA BANERJEE]

New Delhi; November 30, 2018

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