Dismissed

Vijay Bansilal Gaud v. State of Maharashtra and Others

Bombay HC13 Jun 2012WP/545/1998

Case brief

AI extract

What is this about?

The Bombay High Court dismissed the appeal against conviction for possession of Bhang tablets under the Bombay Prohibition Act. The court held that the petitioner failed to establish bona fide medicinal possession and that a prima facie case existed, preventing quashing of proceedings.

What did the court decide?

Writ petition and criminal applications dismissed; rule discharged; proceedings against the petitioner not quashed.

Vijay Bansilal Gaud Vs State of Maharashtra and Others — Narcotics (NDPS) | Bombay HC (2012)

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Cri. W.P. No. 545/1998 & Ors.

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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	CRIMINAL WRIT PETITION NO. 545 OF 1998
1.	Vijay s/o. Bansilal Gaud, Age 40 years, Occu. Business, R/o. Jamnalal Bajaj Road, Dhule, Tq. & Dist. Dhule. ....Petitioner.
	Versus
1.	The State of Maharashtra
2.	Superintendent of Police, Dhule, Dist. Dhule. ....Respondents. WITH CRIMINAL APPLICATION NO. 32 OF 1999
1.	Vijay s/o. Bansilal Gaud, Age 40 years, Occu. Business, R/o. Jamnalal Bajaj Road, Dhule, Tq. & Dist. Dhule. ....Applicant. Versus
1.	The State of Maharashtra ....Respondent. WITH CRIMINAL APPLICATION NO. 33 OF 1999
1.	Vijay s/o. Bansilal Gaud, Age 40 years, Occu. Business, R/o. Jamnalal Bajaj Road, Dhule, Tq. & Dist. Dhule. ....Applicant. Versus
1.	The State of Maharashtra ....Respondent.
Mr. peti	V.P. Raje h/f. Mr. C.R. Deshpande, Advocate for tioner /applicant.
Mr.	B.J. Sonawane, A.P.P. for respondents.

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Cri. W.P. No. 545/1998 & Ors.

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CORAM : T. V. NALAWADE, J. DATED : 13th June, 2012.

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JUDGMENT :

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The writ petition is filed under Article 227 of Constitution of India and under section 482 of Criminal Procedure Code. Other two proceedings are filed under section 482 of Cr.P.C. and the relief is claimed of quashing criminal proceedings bearing S.T.C.C. Nos. 2189/1997, 1589/98, 2151/98 and 2087/98. These cases are pending in the Court of Judicial Magistrate, First Class, Dhule and the cases are filed against the petitioner for offence punishable under section 66 (1) (b) of the Bombay Prohibition Act, 1949. Both the sides are heard.

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On the basis of specific information received against the petitioner raids were effected by Dhule Police Station on many occasions on bicycle shop of the petitioner. On each occasion, the petitioner was found present in the shop and from his possession some pouches of tablets containing Bhang were recovered. In the first raid dated 10.9.1997, such 57 pouches were recovered, in the raid dated 4.9.1998, 70 such pouches were recovered, in the raid dated 24.9.1998, 50 such pouches were recovered and in the raid dated 23.10.1998, 69 such pouches were recovered. Each

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Cri. W.P. No. 545/1998 & Ors. 3

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pouch was containing 5 tablets. All these pouches recovered from the possession of the petitioner were seized under the panchanama in presence of witnesses. Samples were separated for sending the same to C.A. Office on each occasion and the copies of charge sheets show that the C.A. reports were awaited, when the charge sheets were filed.

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It is the case of petitioner that he had purchased all aforesaid pouches for medicinal purpose from the manufacturer, who was holding necessary license for manufacturing of such tablets. In the proceedings, the petitioner has produced zerox copy of license issued by Food and Drug Administration of Madhya Pradesh to one M/s. Mehta Ayurvedic Sansthan, Indor. The copy of license shows that this concern was manufacturing tablets by name Madhur Munakka, containing 15% Bhang.

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The pouches recovered from the possession of the petitioner were bearing names like Madhur Munakka, Minar, Sannan and Minar Jati-Fala Churn. It is the case of prosecution that the petitioner was in possession of these tablets for the purpose of sale.

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The advocate of the petitioner submitted that under

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Cri. W.P. No. 545/1998 & Ors.

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section 31 of Bombay Prohibition Act and its proviso, there is protection to the possession of such article, when it is possessed for medicinal purpose. Proviso to section 31 of this Act reads as under :-

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"Provided that, where any intoxicant or hemp, or article containing such intoxicant or hemp, has been obtained by any person for a bona fide medicinal purpose, from any person or institution licensed to sell the same under this section, it shall not be necessary for such person to obtain a licence for the possession, purchase, consumption or use thereof :

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Provided further that, no licence shall be necessary for the possession of denatured spirit to the extent of such quantity as may be prescribed."

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The aforesaid provision shows that the burden is on the accused to show, (i) that he had obtained such drug from institution licensed to sell the drug under the license issued as provided in section 31 and (ii) that the accused had obtained it for bona fide medicinal purpose. Thus, the defence of the accused will be a matter of evidence and the burden will be on the accused to show that he was having the tablets for such purpose and they were obtained by him as provided in section 31 of the

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Cri. W.P. No. 545/1998 & Ors. 5

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aforesaid Act. The record produced by the accused shows that the tablets contained 15% Bhang. The C.A. reports are not on the record of the present proceedings. The aforesaid circumstances are sufficient to make out prima facie case that the tablets contained Bhang. It cannot be disputed that if the material contains Bhang, then in view of the definition of 'intoxicant' and 'intoxicating drug' given in section 2 (22) and (23) of the aforesaid Act, Bhang is intoxicant. The possession of such substance was prohibited under section 66(1) (b) of the aforesaid Act, at the relevant time.

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The aforesaid provision shows that only under license, permission obtained as per section 31 of the Act, such article can be manufactured or possessed. Section 139 of the Act shows that the State Government has the power to regulate the possession, consumption etc. of such substances and the State Government can exempt particular intoxicant from the provision or some of the provisions of the aforesaid Act. There is no such case of exemption under the aforesaid provisions of the Act. The aforesaid discussion shows that it is not possible to infer at this stage that no offence is committed by the petitioner. In view of the circumstances of this case, this Court holds that it is not possible to use the writ jurisdiction or inherent power in all the cases and

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Cri. W.P. No. 545/1998 & Ors.

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the proceedings cannot be quashed.

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In the result, the writ petition and the other two applications stand dismissed and the rule is discharged.

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[ T. V. NALAWADE, J. ]

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ssc/

Vijay Bansilal Gaud v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vijay Bansilal Gaud v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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Coram

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