Partly allowed

T.K.Aboobacker v. Drugs Inspector,Kozhikode

Kerala HC12 Dec 2017Crl.Rev.Pet/457/2003

Case brief

AI extract

What is this about?

In a revision petition, the High Court partly allowed the appeal. The court acquitted the accused of offences under Sections 28 and 22(3) of the Drugs and Cosmetics Act due to insufficient evidence. The conviction under Section 27(b)(ii) was confirmed but the prison sentence was reduced to imprisonment till rising of the court considering the 32-year delay.

What did the court decide?

Accused acquitted of offences under Sections 28 and 22(3); conviction under Section 27(b)(ii) confirmed but prison sentence reduced to till rising of the court; fine maintained.

T.K.Aboobacker Vs Drugs Inspector,Kozhikode — Corruption | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.UBAID

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TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939

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Crl.Rev.Pet.No. 457 of 2003 ( )

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IN CRA 30/1993 of ADDL. DISTRICT COURT (ADHOC), KALPETTA DATED 16-10-2002

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IN CC 266/1998 of J.M.F.C, MANANTHAVADY DATED 21-08-1993

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REVISION PETITIONER(S)/APPELLANT/ACCUSED::

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T.K.ABOOBACKER, PROPRIETOR, SIDE VIEW STORES, PANAMARAM.

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BY ADV. SRI.LALJI P.THOMAS

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RESPONDENT(S)/RESPONDENT/COMPLAINANT::

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DRUGS INSPECTOR (INTELLIGENCE BRANCH), OFFICE OF THE REGIONAL DRUGS INSPECTOR,, KOZHIKODE.

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BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.UBAID, J.

Crl.R.P. No. 457 of 2003

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- - - - Dated this the 12^th day of December, 2017

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ORDER

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The revision petitioner herein is the accused in C.C.No. 266 of 1988 of the Judicial First Class Magistrate Court, Mananthavady. The said prosecution was initiated by the Drugs Inspector (Intelligence branch), Kozhikode, alleging the offences under Sections 27(b)(ii), 28 and 22(3) of the Drugs and Cosmetics Act (for short “the Act”). The complainant initiated prosecution on the basis of the seizure of some allopathic medicines from the possession of the accused, found kept at his stationery shop without license. The shop of the accused was inspected by the then Drugs Inspector (Additional), of the Regional Drugs Inspector's Office, Kozhikode, one V.N. Raveendran, along with one K. Bhasy, the Drugs Inspector of the Intelligence Branch, Kozhikode. The prosecution case is that when they inspected the stationery shop of the accused by name “Side

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View Stores”, in the building No. PP XI/183 of the Panamaram Grama Panchayat, the Drugs Inspectors found some allopathic medicines kept for sale at the shop. The Drugs Inspector Sri. Raveendran seized the allopathic medicines as per a mahazar, and initiated proceedings against the accused. Though the accused was required to disclose the source from where he obtained the medicines, he did not respond. In December, 1987, the successor Drugs Inspector filed complaint against the accused. Inspection was made at the shop of the accused on 05.11.1985.

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The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him. The prosecution examined 7 witnesses in the trial court, and proved Exts.P1 to P12 documents. The drugs seized by the Drugs Inspector were identified during trial as MO1 series.

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The accused denied the incriminating

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circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.

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On an appreciation of the evidence, the learned Magistrate found the accused guilty under all the Sections. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of ₹5000/- under Section 27(b)(ii) of the Act, to undergo rigorous imprisonment for 6 months under Section 28 of the Act, and to undergo rigorous imprisonment for 6 months under Section 22(3) of the Act.

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Aggrieved by the judgment of conviction dated 21.08.1993, the accused approached the Court of Session, Wayanad, with Crl.A.No. 30 of 1993. In appeal, the learned Additional Sessions Judge (Adhoc) Kalpetta, confirmed the conviction and sentence, and accordingly, dismissed the appeal by judgment dated 16.10.2002. Now the accused is before this Court in revision challenging the

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legality and propriety of the conviction and sentence.

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On a perusal of the entire materials in this

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case, I find that the conviction made by the courts below under Sections 22(3) and 28 of the Act is liable to be set aside for the reason that such offences are not proved beyond reasonable doubt. But I find that the conviction under Section 27(b)(ii) of the Act is liable to be sustained.

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The prosecution case is that when PW1 inspected the stationery shop of the accused along with PW2 on 05.11.1985 at about 2.00 p.m., they saw some allopathic medicines kept there for sale without license under the provisions of the Act. PW1 and PW3 have given definite and consistent evidence proving this fact. I find no reason to disbelieve these two witnesses, or to reject their evidence proving the seizure of 11 items of allopathic medicines from the shop of the accused. The Ext.P12 letter issued from the Panamaram Grama Panchayat would prove that the building No. PP XI/183 of the Panamaram Grama Panchayat was

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occupied by the accused in this case at the relevant time. It is proved by Ext.P7 document that one Ayshabi Kallankodan is the owner of the said building. Ext.P9 is the copy of the notification by which PW1 and PW3, and also the complainant, were appointed as Drugs Inspectors under the Act. On this aspect, there is no dispute. On facts, the case stands well proved by the evidence of PW1 and PW3 that some allopathic medicines kept at the premises of the accused were seized by PW1 as per a mahazar, and those medicines were kept there by him without any license under the Act. This constitutes the offence punishable under Sections 27(b)(ii) of the Act.

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On a perusal of the materials, I find that the other offences are not proved in this case. What is punishable under Section 28 of the Act is contravention of the provisions of Section 18A or Section 24 of the Act. To prove such contravention, the prosecution must prove that the accused failed to disclose the details like the name and

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address of the manufacturer, or the person who supplied the medicines to him. In this case, there is no such evidence. The allegation in the complaint is that the accused failed to furnish the source from where he obtained medicines. What the accused is required to furnish under the law is not simply the source, but the details of the manufacturer, or the person who supplied medicines to him. I do not find any such definite notice given to the accused. Thus, I find that the offence punishable under Section 28 of the Act is not properly proved in this case. What is punishable under Section 22(3) of the Act is the act of a person willfully obstructing a Drugs Inspector in the exercise of the powers conferred upon him by the Act. This aspect also stands not properly and satisfactorily proved. Despite the alleged obstructions, the Drugs Inspector could seize the medicines from the shop of the accused. I find that the evidence given by PW1 and PW3 is not fully convincing on the alleged obstruction made by the accused. I find that there is no

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clear and satisfactory evidence to prove the offence under Section 22(3) of the Act beyond reasonable doubt. Thus, the conviction thereunder is also liable to be set aside.

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As on the date of inspection in this case, the offence under Section 27(b)(ii) of the Act was punishable with imprisonment which shall not be less than one year, and with fine which shall not be less than 5,000/-. This₹ provision was amended with effect from 10.08.2009, and since 10.08.2009, it is punishable with imprisonment for a term which shall not be less than three years, and a fine which shall not be less than 1 lakh. Anyway as on the date₹ of commission of the offence alleged in this case, the minimum sentence prescribed was imprisonment for one year, and the maximum sentence was imprisonment for three years. So also, the minimum fine sentence was 5000,₹ but the maximum was not prescribed. The proviso to Section 27(b)(ii) of the Act provides that for adequate and special reasons, the court can deviate from the rule of

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minimum sentence, and impose a lesser term of sentence. In the present case, the offence was allegedly committed on 05.11.1985. Now we are in 2017. The long lapse of 32 years will have to be considered by the court in awarding sentence. Judicial finality was delayed not due to the fault of the accused. He has been undergoing the trauma of prosecution for 32 years. In the above circumstances, I feel that there can be a deviation from the rule of minimum sentence. The minimum fine prescribed as on the date of offence was 5000/-. The offence was tried before a Judicial₹ First Class Magistrate, and not before a Chief Judicial Magistrate. The learned Magistrate had his own limits under the law in imposing sentence of fine. In such a situation, it would not be not proper and legal to impose anything above ₹5,000/- as fine. Anyway, on a consideration of the various aspects, including the long lapse of 32 years, I feel that imprisonment till rising of the court will be the adequate sentence under Section 27(b)(ii) of the Act.

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In the result, this revision petition is allowed in part. The revision petitioner is found not guilty under Sections 28 and 22(3) of the Act, and he is acquitted of those offences in revision. Accordingly, the conviction and sentence under those two Sections will stand set aside. But the conviction under Section 27(b)(ii) of the Act is confirmed. However, the jail sentence imposed by the court below will stand modified and reduced to imprisonment till rising of the court, but the fine sentence, with the default sentence thereon is maintained. The revision petitioner will surrender before the trial court within three weeks from this date to serve out the sentence, and to make payment of the fine amount voluntarily on failure of which, steps shall be taken by the trial court to enforce the sentence, and to realize the fine amount, or to enforce the default sentence.

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Sd/- P.UBAID

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JUDGE ds 13.12.2017 //True copy//

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P.A. to Judge

T.K.Aboobacker v. Drugs Inspector,Kozhikode

Case brief

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What did the court decide?

T.K.Aboobacker v. Drugs Inspector,Kozhikode

Case brief

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What did the court decide?

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