Allowed

Sadashiv S/O Sureshchandra Kudachimath v. State of Karnataka

Karnataka HC30 Oct 2023CRL.RP/100035/2015

Case brief

AI extract

What is this about?

In this Criminal Revision Petition, the High Court of Karnataka acquitted the petitioner accused of offences under the Drugs and Cosmetics Act. The court held that the prosecution failed to prove guilt beyond reasonable doubt due to procedural lapses, including the absence of a panchanama, lack of opportunity for Central Laboratory re-analysis mandated under Section 25, and the excessive delay in

What did the court decide?

Accused acquitted; Conviction and sentence set aside; Fine refund ordered; Bail cancelled.

Sadashiv S/O Sureshchandra Kudachimath Vs State… — Criminal Trial and Appeal | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30^TH DAY OF OCTOBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

¶6

CRIMINAL REVISION PETITION NO. 100035 OF 2015 (397)

¶7

BETWEEN:

¶8

SADASHIV S/O. SURESHCHANDRA KUDACHIMATH, AGE: 46 YEARS, OCC: PRIVATE SERVICE, R/O: LAXMI NAGAR, DHARWAD.

¶9

…PETITIONER

¶10

(BY SRI. A.M.GUNDWADE, ADVOCATE)

¶11

AND:

¶12

STATE OF KARNATAKA, BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DAHRWAD BENCH, AT DHARWAD, THROUGH DRUG INSPECTOR, DHARWAD CIRCLE, HUBLI

¶13

…RESPONDENT

¶14

(BY SRI. ASHOK T. KATTIMANI, AGA)

¶15

YASHAVANT NARAYANKAR

¶16

Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.17 12:18:04 +0530

¶17

THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C.1973, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED ON 06.06.2014, PASSED BY THE SENIOR CIVIL JUDGE & CJM COURT, DHARWAD AND JUDGMENT OF CONFIRMATION OF CONVICTION DATED 29.01.2015 PASSED BY THE PRL. DIST. & SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.35/2014 AND TO ACQUIT THE PETITIONER/ACCUSED FROM CHARGES PUNISHABLE U/S 27(D) & 28 OF DRUGS AND COSMETICS ACT, 1940.

¶18

¶19

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶20

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

¶21

ORDER

¶22

Petitioner-accused has filed this petition challenging the judgment of his conviction and order of sentence passed against him in C.C.No.492/2007 dated 06.06.2014 by the Senior Civil Judge and CJM Court Dharwad sentencing him for the offence punishable under sections 27(D) & 28 of Drugs and Cosmetics Act, 1940 (for short “the Act”) and confirmation of the said judgment of conviction and order of sentence by the Principal District and Sessions Judge, Dhrawad (for short “the First Appellate Court”) in Criminal Appeal No.35/2014 dated 29.01.2015.

¶23

For the sake of convenience, the parties herein are

¶24

referred to as per their rank before the Trial Court.

¶25

The facts leading to the case of the prosecution are

¶26

as under:

¶27

As per the records, the complainant being drug inspector and authorized official of Drug Department, on 11.03.2004 visited the shop of the accused and on inspection found stock of

¶28

3 - NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶29

Potassium Paramagnet IPB No.B4 which was exhibited for sale in the said shop. The complainant purchased the said drug for test and analysis. Issued Form No.17 to the accused. Thereafter, transmitted the said sealed packet to the accused under acknowledgment as per procedure. He demanded the accused to produce the records with regard to the said drug but it is alleged that, the accused did not produce the same.

¶30

It is further case of the prosecution that, on 15.03.2004, the complainant sent the said sealed sample to the Government Analyst Drug Testing Laboratory, Benagaluru. Accordingly, on 12.11.2004 the complainant received the repot in Form No.13 from the Government Analyst. It was declared in the said report that “it was not of standard quality”. Then on 16.11.2004, the complainant sent the test report to the accused along with the notice informing him about the product which is of standard quality. He instructed the accused to disclose the source of acquisition of the said drug as per the provision of Section 18(A). On 22.11.2004 accused wrote a letter requesting the complainant to grant some more time for furnishing information. On 16.12.2004, the complainant issued

¶31

¶32

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶33

one more notice to the accused requesting to disclose the information.

¶34

On 03.01.2005, the accused submitted a purchase invoice bearing No.37 dated 27.10.2003. In the said information he stated that, he purchased the said drug from M/s. Shreyash Surgicals, Dharwad i.e., from the shop of CW.5. On 07.01.2005, the complainant issued notice to M/s. Shreyash Surgicals, Dharwad with a request for confirm the supply of the said drug to the accused. Thereafter, as he was transferred, investigation was handover to CW.1 by this complainant.

¶35

On 29.07.2006, CW.1 visited M/s. Shreyash Surgicals, Dharwad and showed invoice No.37 dated 27.10.2003. CW.5 confirmed the issue of the invoice by comparing it with the carbon copy. But, he denied for having sold the Potassium Permanganate under invoice No.37 issued to the accused. The invoice contained the particulars about 50 NORMAFIX IV set B. No.02103 only. The total value of the invoice was Rs.185/- so mentioned. Thus, it is alleged by the complainant that, accused has created both the said documents to disclose the source of his acquisition which is untrue. CW.1

¶36

¶37

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶38

collected the license particulars and thereafter, he filed a complaint before learned Trial Magistrate on 19.10.2007.

¶39

Learned Trial Magistrate followed all the formalities of filing of a private complaint by the Public Officer. Before the Trial Court to substantiate the case of the complainant/Drug Inspector, in all six witnesses were examined in the shape of PWs.1 to 6 and got marked Ex.P.1 to P.27 and closed the prosecution evidence. No M.Os. were marked.

¶40

Learned Trial Magistrate on hearing the arguments and on perusal of the records, found the accused guilty of committing the offence under Section 18(a)(i) punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the ‘Act, 1940’, for brevity) and sentenced the accused to undergo simple imprisonment for one year and shall pay fine of Rs.20,000/- for the offence punishable under Section 27(d) of the Act, 1940 and further sentenced the accused to undergo simple imprisonment for one year and shall pay the fine of Rs.20,000/- for the offence punishable under Section 28 of the Act, 1940 and in default to

¶41

¶42

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶43

undergo simple imprisonment for six months. It was ordered to run both the sentences concurrently.

¶44

This judgment of conviction and order of sentence was challenged by the accused before the Principal District and Sessions Judge, Dharwad in Criminal Appeal No.35/2014. Learned Principal District and Sessions Judge, Dharwad vide judgment dated 29.01.2015 confirmed the judgment of the Trial Court by dismissing the appeal so filed by the revision petitioner/accused. This is how the revision petitioner is before this Court challenging both the judgments.

¶45

It is argued by learned counsel for the accused/revision petitioner that, first of all the procedure so adopted by CW.2 in conducting the inspection is not in accordance with the provisions of the Act, 1940. The panchanama with regard to the seizure of contraband article is not prepared by the inspector which is required to the case of present nature.

¶46

He further submits that, even after getting the sample purchased, no proper procedure was followed and after getting the report, no opportunity was given to the accused to

¶47

7 - NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶48

approach the competent higher authorities for further chemical examination of the alleged contraband article. Further he submits that, alleged inspection was conducted on 11.03.2004, but the complaint was lodged by CW.1 on 19.10.2007 i.e., beyond three years later. That means according to his submission the very taking of the cognizance of the offence by the Trial Magistrate is illegal. The said complaint was not accompanied with any of the application for condoning the delay also. He further submits that only the official witnesses have given evidence before the Trial Court so as to suit their purpose. The accused has been falsely implicated in this case. It is submitted that, in view of all these factual circumstances coupled with the not following of proper procedure, the accused is entitle for acquittal. Accordingly, he prayed to set aside the impugned judgments.

¶49

As against this submission, learned Additional Government Pleader Shri. Ashok Kattimani submits that, learned Trial Court as well as the first appellate Court by assigning proper reasons have found the accused guilty of committing the serious offence of selling the Potassium Permanganate. It was of sub-standard quality and it would be

¶50

8 - NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶51

health hazard one. Therefore, he submits before the Court that in view of the sound findings given by the Trial Court, the judgment of the Trial Court as well as the first appellate Court are not required any interference by this Court. He submits to dismiss the revision petition.

¶52

I have given my anxious consideration to the arguments of both the side. Meticulously perused the records.

¶53

The points that would arise for my consideration are as under:

¶54

i) Whether learned Trial Court as well as the first appellate Court have committed any illegality or perversity in finding the accused guilty of the offence punishable under Sections 18(a)(i) punishable under Section 27(d) of the Act, 1940 and Section 18(a) punishable under Section 28 of the Act, 1940?

¶55

ii) If so, whether the judgment of conviction and order of sentence passed by the Trial Court affirmed by the first appellate Court require interference by this Court?

¶56

¶57

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶58

iii) What order?

¶59

Point Nos.1 and 2 are discussed together:

¶60

On perusal of the records of this case, it do demonstrate that, CW.2 being the Drug Inspector at the relevant time, on 11.03.2004 visited M/s. Siddeshwar Associates, Dharwad owned by the accused who was possessing the drug license to deal with drugs in wholesale. It is alleged that, accused No.1 was found stocked for sale of Potassium Permanganate I.P. B.No.P.4, D/pkg 8/00, D/E 5 years from package and repacked by M/s. Royal Chem, Indore. It is alleged by the Drug Inspector that, after purchase of the sample, it was sent to the Government Analyst Drug Testing Laboratory, Bengaluru. He received the report stating that, it was of substandard quality. Therefore, it is alleged by the prosecution that, this accused has committed the offence under the provisions of the Drugs and Cosmetics Act, 1940.

¶61

The records of this case further do reveal that, the said inspection was conducted on 11.03.2004. The complaint was filed before the Magistrate on 19.10.2007. The report of

¶62

10 -

¶63

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶64

the Drug Inspector is dated 10.11.2004 which was received on

¶65

12.11.2004. The said report is marked at Ex.P.7.

¶66

It is submitted by learned counsel for the revision petitioner/accused that, Ex.P.7 is dated 10.11.2004 which was received by the Drug Inspector on 12.11.2004, then what made the complainant-Drug Inspector to lodge a complaint immediately is not explained. Only on receipt of Ex.P.20 dated 18.09.2007 he has filed the complaint as per Ex.P.21 which is not proper.

¶67

The provisions of Section 25 of the Act, 1940 specifically speaks with regard to the report of Government Anlyst. For better appreciation, it is just and proper to incorporate the provisions of Section 25 of the Act, 1940 in this judgment. Section 25 of the Drugs and Cosmetics Act, 1940 reads as under:

¶68

“ 25 Reports of Government Analysts. —

¶69

(1) The Government Analyst to whom a sample of any drug¹¹⁶ [or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.

¶70

(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from

¶71

11 -

¶72

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶73

whom the sample was taken¹¹⁷ [and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A], and shall retain the third copy for use in any prosecution in respect of the sample.

¶74

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken¹¹⁸ [or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

¶75

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug¹¹⁶ [or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such

¶76

12 - NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶77

report shall be conclusive evidence of the facts stated therein.

¶78

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct."

¶79

On scrupulous reading of this provision, it is specifically states that, the inspector on receipt of report of the public analyst shall deliver one copy of report to the person from whom the sample was taken. That means opportunity has to be given to the person from whom it was seized to approach the Central Laboratory for the purpose of further chemical examination. But in this case, no opportunity was given. It is the submission of counsel for the accused that, the accused was permitted to approach the Central Laboratory under Sub Section 4 of the Act, 1940. Sub Section 4 and Section 25 of the Act, 1940 speaks that, unless the sample has already been tested and analyzed in the Central Test laboratory, it cannot be stated that, the report of the public analyst is to be accepted. Unless it is tested by the Central Test Laboratory, such a report shall be conclusive evidence. But in this case such a procedure is not followed.

¶80

13 -

¶81

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶82

So far as documentary evidence is concerned, prosecution relies upon various documents prepared by the Drug Inspector at the time of conducting the raid. Amongst them Ex.P.1 is the Tippani, Ex.P.2 is Form No.7 and Ex.P.3 is a letter. The subsequent documents from Ex.P.4 to P.27 are other official correspondence as well as invoice being collected by the Drug Inspector before filing the complaint.

¶83

So far as oral evidence is concerned, PW.1 being the Inspector conducted the inspection by name Shri. Goni Fakkirrappa Basavaneppa corroborates the contents of the complaint in his evidence on oath. He specifically says that, on 11.03.2004 when he visited the shop of the accused, noticed the stock of contraband article i.e., Potassium Permanganate. He enquired and came to know that, such a drug was sold to the customers. But to whom the said contraband drug was sold, except the say of PW.1, no evidence is placed on record by the prosecution.

¶84

He speaks with regard to filing of the complaint against the accused after three years and according to him the sample drug so purchased by him was of not of standard

¶85

14 -

¶86

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶87

quality. He obtained a report on 18.11.2004. He issued a notice on 18.11.2004 as per Ex.P.8. Thereafter kept mum for more than three years and lodged the complaint thereafter. Even it is his evidence that, when he obtained the report from the vendor of the said drug to the accused, he issued a reply stating that no such drug was sold to the accused. He has been thoroughly cross examined by the defence. According to him he being the Drug Inspector has got authority for inspection. In unequivocal terms he says that, to show that he has purchased the sample drug from the shop of the accused, he has not prepared any panchanama. In a case of present nature, as per the procedure adopted under the provisions of the Act, 1940 and also under the provisions of Cr.P.C., when any contraband article or material object is seized, it is the duty of the Investigating Officer to prepare the panchanama to substantiate the seizure of the said contraband article. But in this case PW.1 has not prepared any panchanama. That means with regard to the purchase of the said drug except the selfserving testimony of PW.1, there is no evidence place on record by the prosecution.

¶88

15 -

¶89

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶90

According to his evidence, accused was just found selling the Potassium Permanganate and there were no other stock of any other drug. As per the submission of learned counsel for the accused, accused was running a licensed Siddeshwar Medical dealing with various drugs and he was wholesale seller of the drugs. But the evidence of PW.1 is that, the accused was found stocked Potassium Permanganate only. A quite strange evidence has been spoken to by this PW.1.

¶91

PW.2 is the complainant in this case, who took up the investigation from PW.1 because of transfer of PW.1. He collected the documents and filed the complaint. On perusal of his evidence, it shows that, he has not enquired with regard to the invoice being issued to M/s. Solapur Agency. He admits that, the eligible person must be in the medical shop. He further says that, only based upon the prescription only, the medical shop has to sell the drug. No document is produced by the complainant to show that, an authorized person who has purchased the said drug. He admits that, when such a sample is seized, it is the duty of the Drug Inspector to check the batch number to know that, whether said drug is of standard quality

¶92

16 -

¶93

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶94

as prescribed under the provisions of the Act, 1940. But he has not done so.

¶95

PW.3-Sanjay Shivanand Swamy is the partner to M/s. Shreyas Surgicals. According to the prosecution, from this M/s. Shreyas Surgicals only, the accused has purchased the said drug. But he says that, he has not sold the said drug to the accused. When it is purchased from the shop of PW.3, when invoice is being furnished to that effect, but the Drug inspector has arrayed this PW.3 as a witness. Was there any real stock being maintained by this PW.3 of the said contraband drug, there is no evidence placed on record. Even this PW.3 is also not a signatory to the invoice so collected by the complainant.

¶96

PW.4-Sunil A. Patil is the Assistant Drug Controller, who issued the license particulars of Siddeshwar Associates. Much value cannot be attached to the evidence of this PW.4.

¶97

PW.5-Girish S. Govanakoppa is also medical shop owner who has been turned hostile. Ex.P.1 contains his signature, but he does not know contents of Ex.P.1. Nothing

¶98

17 - NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶99

worth is elicited from the mouth of PW.5 so as to disbelieve his version given in his examination-in-chief.

¶100

PW.6- H.K.Pathan, is a person who has given oral complaint to the Drug Inspector against the accused for selling the said contraband drug. He is a retired soldier. To show that, in what capacity he lodged the complaint, he has not produced any resolution in which he is a member. Based upon the complaint of PW.6, inspection was conducted as per the case of the prosecution. But either PW.1 or any other witness have stated anything with regard to the receipt of the complaint of PW.6 in their evidence.

¶101

On perusal of the entire text of the complaint as well as documentary evidence, it do demonstrate that, after furnishing sample to the accused and after getting report from the laboratory from Government Analysis Bengaluru, no arrangement was made to send the same to the central laboratory so as to ascertain the quality of the said drug being seized by the complainant. It is fatal to the case of the prosecution. More so unless an opportunity is given to the accused to get tested the said drug from the Central

¶102

18 -

¶103

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶104

Laboratory, only based on Ex.P7 and P20, it cannot be said that the prosecution has established the guilt of the accused beyond all reasonable doubt. Except self-serving testimony of the complainant and official witnesses, there is no other evidence placed on record by the prosecution.

¶105

Even there is some method of making use of the medication or the drug. Under what method the contraband drug was being tested is also not proved. The author of Ex.P7 and Ex.P20 are not examined by the prosecution, which is also fatal to the case of the prosecution. Merely because there is Potassium Paramagnet, that does not mean that, it is of substandard quality. If it has really caused any health hazard problems to the society in general or a person in particular is not forthcoming. Unless such evidence is brought on record by the prosecution, it is hard to believe the story of the prosecution that the accused was really found selling said drug which was of sub-standard quality. Further the records of the Trail Court do reveal that, the sample so seized by PW1 after conducting inspection of the shop of accused was not produced either before the Trial Court or before the Appellate Court.

¶106

19 -

¶107

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶108

If all these factual features coupled with report is put together, it can be said that, for the sake of convenience the complainant must have lodged a complaint for statistical purpose.

¶109

Further, the mandatory provisions under Section 25 of the Act have not been followed. Complaint was lodged beyond 3 years though the chemical examination report was received immediately after conducting investigation. As there is no proper explanation offered by the prosecution, the story of the prosecution cannot be accepted. Hence, I am of the considered view that the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt.

¶110

The Trial Court as well as the First Appellate Court have not taken into consideration of all these aspects and have wrongly came to the conclusion that, the prosecution is able to establish the guilt of the accused under the provisions of the Act. There is no proper appreciation of evidence by both the Courts below. Based on evidence, which suffers from material particulars, both the Courts below have found the accused guilty of offence, which in my opinion is not proper. The case of

¶111

20 -

¶112

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶113

the prosecution is doubtful and the benefit of doubt needs to be

¶114

extended in favour of the accused. Resultantly, I pass the following:

¶115

ORDER

¶116

i) The revision petition filed by the petitioneraccused is hereby allowed.

¶117

ii) The judgment of conviction and sentence passed by the Senior Civil Judge and CJM Court, Dharwad in C.C.No.492/2007 dated 06.06.2014 confirmed by the Principal District and Sessions Judge, Dharwad in Crl.A.No.35/2014 dated 29.01.2015 are hereby set aside.

¶118

iii) Consequentially, the accused is acquitted of the charges leveled against him under section 18(a)(i) punishable under Section 27(d) and 18A punishable under section 28 of the Drugs and Cosmetics Act, 1940.

¶119

iv) The deposit of fine amount, if any, shall be refunded digitally to the accused on proper identification and after due acknowledgment.

¶120

v) The bail bond of the accused stands cancelled and he is set at liberty.

¶121

21 -

¶122

NC: 2023:KHC-D:12667 CRL.RP No. 100035 of 2015

¶123

vi) Send back the Trial Court and Appellate Court records with a copy of this order.

¶124

vii) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

¶125

Sd/JUDGE

¶126

YAN,SMM LIST NO.: 1 SL NO.: 11

Sadashiv S/O Sureshchandra Kudachimath v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sadashiv S/O Sureshchandra Kudachimath v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Basavaraj S/O Ummannappa Degul Vs the State of Karnataka

Basavaraj S/O Ummannappa Degul Vs the State of Karnataka

Shri.Vinod Anandrao Nandanikar Vs Shri.Raghunath Credit Souhard Sahakari Limited

Manjunath S/O Sadashiv Badiger, Vs the State of Karnataka

Shivappa S/O Basavaneppa Benakannanavar Vs Primary Agricultural Co-Operative

Mohan Sheshachalappa Vs Ratnakar Purushottam Netrekar