of Orissa Vs. Janmejoy Dinda  INSC 120
(20 February 1998)
Mukherjee, K.T. Thomas Thomas J.
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.
respondent had no licence to stock or exhibit for sale such drugs, the Drugs
Inspector seized 22 items of drugs.
was not able to produce the purchase invoice concerning those drugs and he
failed to disclose the source from which he purchased them.
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.
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/-.
of Orissa has filed this special leave
petition challenging the aforesaid alteration and modification made by the High
Court. Leave is granted.
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.
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.
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
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.
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.
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.
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.
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
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
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:
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.
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.
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.
is thus, allowed to that extent.