At, High Court of Judicature at Madras
By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
For the Petitioner: V. Ashok Kumar, Central Government Standing Counsel. For the Respondent: S. Thamizharasi, Legal Aid Counsel.
(Prayer: Criminal Appeal filed under Section 377 of Code of Criminal Procedure to enhance the sentence passed in C.C.No.234 of 2011 dated 26.12.2013 on the file of the X Metropolitan Magistrate Court, Egmore, Chennai.)
1. This Criminal Appeal has been filed by the de facto complainant being not satisfied with the sentence imposed on the respondent, who has pleaded guilty before the trial Court in the case launched for contravention of the provisions of the Drugs and Cosmetics Act.
2. The allegations against the accused as found in the complaint is that, he had been manufacturing drugs namely, Fluorex TM IVD, Venous Blood Test pack, without a valid drug manufacturing license and he has also manufacturing test kits for Malaria by affixing the label on the kit, as if it is manufactured by A/S Cophenhagen, Denmark which is fictitious company.
3. The contentions of the prosecution is that, on investigation, the private complaint has been filed by the Drugs Inspector alleging that the accused had contravened section 18(c) read with Rule 27(b)(ii) of the Drugs and Cosmetics Act.
4. To prove the charges PW1/Manish Singha/Drug Inspector was examined and 17 exhibits were marked. At that point of time, the accused pleaded guilty and filed a guilty memo before the trial Court. Taking the guilty memo on record, the trial Court had imposed a fine of Rs.20,000/- (Rupees Twenty Thousand Only) and the imprisonment till the rising of the Court and also directed to pay a cost of Rs.500/- towards obligation charges.
5. In the appeal for enhancement of punishment, it is contended that under Section 27(b)(ii) of the Drugs and Cosmetics Act, any contravention of Section 18(c) of the Drugs and Cosmetics Act will attract imprisonment for a term which shall not be less than three years and may extend to five years with fine which shall not be less than One Lakh Rupees or three times the value of the drugs confiscated, whichever is more. While so, the trial Court imposing sentence of imprisonment till the rising of Court and fine of Rs.20,000/- is below the minimum sentence prescribed. Therefore, order of the learned Metropolitan Magistrate, imposing the lesser punishment is not sustainable.
6. The learned Central Government Standing Counsel appearing for the appellant submitted that the Proviso of Section 27(b)(ii) of the Drugs and Cosmetics Act, which empower and enable the Court to impose sentence of imprisonment for a term of less than three years and of fine of less than One Lakhs Rupees should be supported by adequate and special reasons and the same should have been recorded in the Judgment. In the absence of any special or adequate reason, imposing lesser sentence is unsustainable and contrary to Section 18(c) of the Drugs and Cosmetics Act.
7. The learned counsel, who was appointed by the Legal Services Authority to represent the respondent submitted that respondent herein has not manufactured any kit illegally in contravention with the Rules. He had imported the components for the said test kit and assembled the same in his factory and sold it to his customers. In the course of the investigation as soon as receipt of the summon, a detailed explanation was submitted to the Drugs Inspector wherein the source of the component procured and the manner in which it is assembled explained. Despite such explanation, the complaint was filed. Considering the explanation, the trial Court had accepted the guilty plea and imposed lesser sentences by assigning reason.
8. According to the learned counsel for respondent, in view of the fact that the accused is the first time offender, sentence lesser than the minimum sentence prescribed was imposed by the trial Court. Only after recordings the said special reason the trial Court had imposed the lesser sentence. Hence there is no illegality in the trial Court Judgment.
9. Considering the rival submissions and the provisions of law, since, the Proviso to the Section 27(b)
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(ii) of the Drugs and Cosmetics Act enables the learned Judge to award lesser sentence than the minimum sentence prescribed, if the reason assigned by the learned Judge for awarding lesser sentence was not found to be unreasonable or without basis, the reasonableness of the reason could not be interfere by the Appellate Court. 10. Hence, this Court finds the appeal deserved to be dismissed. Accordingly, the Criminal Appeal is dismissed.