State of Orissa Vs. Janmejoy Dinda [1998] INSC 120 (20 February 1998)

M.K. Mukherjee, K.T. Thomas Thomas J.

ACT:

HEAD NOTE:

A Drugs Inspector conducted search of the premises of a nursing home run by the respondent under the name `Kalicharan Poly Clinic' at Naya Bazar in Jaleswar (Orissa) on 7.8.1996. He was accompanied by one Deputy Drugs Controller and an Assistant Drugs Controller. In the search it was detected that medicinal drugs were stocked for sale in two almirahs kept in the front room of the nursing home.

As respondent had no licence to stock or exhibit for sale such drugs, the Drugs Inspector seized 22 items of drugs.

Respondent was not able to produce the purchase invoice concerning those drugs and he failed to disclose the source from which he purchased them.

On the aforesaid facts respondent was prosecuted before a Court of Judicial Magistrate of First Class for offences under Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940 (for short the `Act'). The magistrate, on conclusion of the trial, convicted respondent under both counts and sentenced him to undergo simple imprisonment for one year and a fine of Rs. 5,000/- on the first count and to simple imprisonment for one month on the second count.

Appeal filed by the respondent was dismissed by the Sessions Court which confirmed the conviction and sentence under both charges. But when he filed a revision before the High Court of Orissa a learned Single Judge found that conviction under Section 28 of the Act was unsustainable and hence respondent was acquitted of that offence. In the matter of sentence for the offence under Section 27(b)(ii) of the Act learned Single Judge reduced it to the period of imprisonment which had already been undergone and the fine was reduce to Rs.3,000/-.

State of Orissa has filed this special leave petition challenging the aforesaid alteration and modification made by the High Court. Leave is granted.

The concurrent findings of facts arrived at by the trial court and the appellate court which are not liable to be re-opened are: (1) respondent stocked for sale the drugs seized from his nursing home on 7.8.1996 without any valid licence as required under clause (c) of Section 18 of the Act, and (2) respondent did not disclose to the Drugs Inspector, even after he was required to do so, the name and address of the persons from whom he acquired those drugs.

Learned counsel for the appellant contended that the High Court committed an error in holding that the offence under Section 28 of the Act has not been made out. That Section reads thus:- "Penalty for non-disclosure of the name of the manufacturer, etc. - whoever contravenes the provisions of Section 18-A or Section 24 shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." Learned Single Judge of the High Court took the view that Section 18A of the Act would have application "only if the person from whom the requisite information is sought for, is either the manufacturer or an agent for distribution" and since the respondent was neither of them he could not have contravened the Section. The reasoning of the learned Single Judge in reaching the aforesaid conclusion, in his own words, are the following:- "Section 18-A deals with disclosure of the name of the manufacturer, etc. It requires that every person, being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the names address and other particulars of the person from whom he acquired the drug or cosmetic.

In order to attract application of Section 18-A, a person, who is either the manufacturer of the drug or cosmetic or agent for distribution thereof is required to disclose to the inspector the name and address and other particulars of the person from whom he acquired the articles. If a person does not fall within either of the two categories, Section 18-A will have no application." In this context it is necessary, to see how Section 18A of the Act is worded which is extracted below:- 18-A Disclosure of the name of the manufacturer, etc. - Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name address and other particulars of the person from whom he acquired the drug or cosmetic." (emphasis supplied) It is obvious that for application of the Section, the person concerned shall not be a manufacturer of drug or his agent. In other words, the person to whom Section 18A applies is anyone other than a manufacturer or his agent for distribution thereof. The raison d'etre of it is that, if he is the manufacturer or his agent he cannot disclose the name of the person from whom he acquired the drug because he himself is its manufacturer. To expect the other way is to expect the impossible. Hence there is no question of requiring him to disclose the identity of the person from whom he acquired the drug. Exclusion of manufacturer and his agent from the purview of Section 18A is, therefore, on understandable premise.

It seems to us that learned Single Judge of the High Court would have missed the monosyllable `not' in Section 18A of the Act when he considered the amplitude of the provision. The position of law when the word `not' is remaining in the provision, is just the other way around.

The Section, therefore, would apply to any person other than the manufacturer of a drug or cosmetic or his agent. Hence, there is much force in the contention of the State that acquittal of the respondent of the offence under Section 28 of the Act is based on a basically faulty premise. Such acquittal is, therefore, liable to be set aside and the conviction of the respondent under Section 28 has to be restored. We do so.

However, while dealing with the sentence we are of the opinion that for failure to disclose the name of the person from whom he acquired the drugs, he need not be sent to jail as we feel that such failure could have happened perhaps because he was oblivious of the name and address of the person from whom he purchased the drug. That apart, there is no case for the Drug Inspector, or for the prosecution itself, that any of the drugs seized from the nursing home was either a spurious drug or a misbranded one or even a time expired medicine. It means that the drug seized would have been otherwise genuine medicine.

We also notice that the offence under Section 28 is punishable with either imprisonment or with fine which may extend to Rs.1,000/- or with both. In other words, sentence of imprisonment is not compulsory. In such circumstances, a sentence of fine of Rs.1,000/- would be sufficient to meet the ends or justice for Section 28 of the Act so far as the facts in this case are concerned.

The remaining contention is that learned Single Judge has acted without jurisdiction when he reduced the sentence for the offence under Section 27(b)(ii) of the Act to imprisonment for the period which respondent had already undergone and to a fine of Rs. 3,000/-. For considering the above contention it is necessary to extract the material portion of the said sub-clause:

"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.- Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,- (a)..................................

(b) any drug- (i).................................

(ii) Without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees:

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees;" This Court has held in Ram Shankar Misra vs. State of UP [AIR 1976 SC 727] that the sentence under Section 27 of the Act cannot be reduced to one of fine only. Again in M/s Rajasthan Pharmaceutical Laboratory Bangalore and others vs.State of Karnataka [AIR 1981 SC 809] this Court pointed out that a sentence of imprisonment is compulsory under Section 27 (b)(ii) of the Act. But in view of the proviso to the Section (as quoted above) it cannot be said that the Court has no jurisdiction to reduce the sentence of imprisonment below the period of six months. If the conditions specified in the proviso are present, the Court has the power to reduce the sentence even further down. For that there must be adequate and special reasons and such reasons should be recorded in the judgment and there shall still be a term of imprisonment and fine in the reduced sentence.

Learned Single Judge has given some reasons for reducing the sentence of imprisonment "to the period already undergone" and to a fine of Rs.3,000/-. Appellant-State has not even mentioned in the special leave petition that the reasons shown by the learned Single Judge are neither adequate not special. We are, therefore, not inclined to enhance the term of imprisonment or the quantum of fine further upward for the offence under Section 27(b)(ii) of the Act.

In the result, we allow this appeal by setting aside the acquittal under Section 28 of the Act. We restore the conviction of the respondent of the said offence. We impose a fine of Rs.1,000/- on him for the said offence and direct that in default of payment of such fine within two months respondent shall undergo simple imprisonment for one month.

Appeal is thus, allowed to that extent.

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