Since both the Criminal Revision Cases are directed against the common judgment of the learned I-Additional Sessions Judge, Khammam, in Crl.A.Nos.32 and 36 of 1997, whereby the learned Judge dismissed both the appeals, confirming the conviction and sentence imposed against the revision petitioners/A-1, A-2, A-4 and A-7 by the learned I-Additional Judicial Magistrate of First Class, Khammam, vide judgment, dated 31.03.1997, passed in C.C.No.134 of 1990, they are being disposed of by this common judgment.
For the sake of convenience, the parties will hereinafter be referred to as arrayed before the trial Court.
Crl.R.C.No.1655 of 2006 is filed by A-1 and A-2 and Crl.R.C.No.1656 of 2006 is filed by A-4 and A-7.
The case of the prosecution is that the Drugs Inspector (P.W.3) filed a complaint before the learned Magistrate stating that the Drugs Inspector (P.W.1) picked up a sample of PF 725 tablets with badge No.PC00E said to have been manufactured in the month of April, 1997 by A-1 firm, from M/s Khammam Medical Stores of P.W.7 under Form No.17 and followed the procedure as contemplated under Section 23 of the said enactment and transmitted it to the Analyst, Drugs Control under Form No.18. P.W.2-Drugs Inspector, caused service of Form No.15 against P.W.7. On the next day, P.Ws.1 and 2 and their Assistant Drugs Controller and P.W.9 and A-2 proceeded to the premises of A-3 firm and that A-2 himself brought the keys from the residence of A-4 and opened the factory premises. They detected 39 empty aluminum foils of PF 725 tablets said to have been manufactured by A-1 firm through A-3 along with some rejected foils. Those 39 condemned empty aluminum foils strips were similar to that of tablets seized from the Medical Shop of P.W.7. A-1 possessed licence to manufacture the said drugs on loan license. The aluminum foils were seized from the premises of A-3, copies of Form No.16 and panchanama were served on A-2 for delivery of the same to A-3 and A-4. A-2 also addressed a letter stating that he handed over the same to the wife of A-4. The property was produced before the Court under C.P.R.No.15/89 on 03.06.1989. A-1 has got licence for manufacturing of drugs. It was having loan license to get the drugs manufactured through one Gladwin Pharmaceuticals, Hyderabad on loan basis. A-2 was a Sole Proprietor of A-1 firm with effect from 29.10.1987. P.W.5, who was a manufacturer, confirmed that they did not manufacture the PF tablets of batch No.PC00E. Thus, A-1 violated Section 18-C of the Act for keeping PF 725 00E tablets manufactured elsewhere in contravention of loan licence. On 22.05.1989 Promod Reddy and another Drug Inspector, Vinay Kumar and Assistant Drugs Inspector, visited the A-1 firm premises bearing D.No.2-7-35/2, Ambarpet, Hyderabad, as per the licence. But they found that the firm already vacated the said premises. On 30.05.1989 the Drugs Inspector-Pramod Reddy (P.W.2) and another Drugs Inspector- Vinay Kumar, visited Khammam Medical Stores of Veerabhadra Rao and issued Form No.15. They also visited the administrative office of A-1 firm situated at 10-2-63, Mamillagudem, Khammam. A-2 is also resident of the same premises. A-6 medical shop is also housed in the same premises. Few partly burnt aluminum PF tablets with rectangular activity said to have been manufactured by A-1 at Hyderabad etc., were found concealed in eastern part of said premises. The Drug Officials also seized carbon copy bill dated 8-5-1999 signed by A-2 issued in favour of M/s. Ramu Medical and General Stores, Kusumanchi. Invoice No.318/1996 relates to fabrication of cylinders for PF 725 Unithrocin Aluminum foils and another invoice and 11/650 and two envelopes discloses that A-6 was the super stockiest for A-1 Unimed Laboratories. The destruction of those aluminum foils of P 727 discloses that A-1, A-2 and A-6 made an attempt to destroy the evidence. The officials issued Form No.16. A-2 also witnessed the seizure. Form No.16 panchanama and Form No.17 were served on A-2. The Analyst found that PF 72500E tablets seized from the shop of Khammam Medicals of Veerabhadra Rao were substandard and they do not confirm with the declared medicinal substances. A-7 is the Managing Partner of A-6. The reports along with letter, dated 9-8-1997 were served personally on 29-8-1989. A-2 in his letter dated 25-9-1989 stated that he was the Managing Partner of the said A-6 firm, but A-2 was looking into all the affairs of the business relating to A-6 firm. He also confirmed that some spurious drugs like PF 72500E were being manufactured by A-1 represented by A-2 and that A-2 was disposing of those spurious drugs clandestinely in the name of A-6 firm by getting printed foils and bill books. The Drugs Inspector (P.W.1) served analytical report on M/s. Khammam Medical Stores and the Khammam Medical Stores sent a reply. Thus, A-1, who was holding loan licence to get PF725300E manufactured through Gladwin Laboratories got it manufactured through A-3, R.K.Laboratories and that the said tablets were substandard and even the 3 in the badge number was mentioned in reverse. Thus, A-3, who was not holding licence, prepared such spurious drugs and A-6 distributed the said spurious drugs. Therefore, the accused are liable for punishment under Drugs and Cosmetics Act, 1940 (for short “the Act”). The said complaint was taken cognizance as C.C.No.134 of 1990.
The revision petitioners along with other accused were tried for the offences under Section 18 (a) (i) read with Section 17(B) punishable under Section 27 (c) of the Drugs and Cosmetics Act, 1940 and also for violation of Section 18 (c) punishable under Section 27 (c) of the Drugs and Cosmetics Act, 1940.
To prove its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P1 to P52 and M.Os.1 and 2. On behalf of the accused, no oral evidence was adduced, but Exs.D1 to D5 were marked.
After considering the entire evidence, both oral and documentary, the trial Court found A-2 representing A-1 firm, A-4 representing A-3 firm and A-7 representing A-6 firm were guilty of the offence under Section 27 (c) for violation of Section 18 (a) (i) read with Section 17 (B) of the Act and convicted and sentenced them to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- each, in default, to suffer simple imprisonment for six months. The trial Court also convicted and sentenced A-2 representing A-1 firm, A-4 representing A-3 firm to suffer simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for six months for the offence under Section 27 (b) of the Act, for violation of Section 18 (c) of the Act read with Proviso to Clause II).
Aggrieved by the said conviction and sentence, A-4 representing A-3 firm and A-7 representing A-6 firm filed Crl.A.No.36 of 1997 and A-2 representing A-1 firm filed Crl.A.No.32 of 1997, before the appellate Court. The learned appellate Judge, on reappraisal of entire evidence, confirmed the conviction and sentence recorded by the trial Court against the revision petitioners. Aggrieved by the same, the present revisions came to be filed by the revision petitioners.
Heard both sides and perused the material on record.
Sri Pradhyumna Kumar Reddy, learned Senior Counsel appearing for A-1 and A-2 would submit that on 10.05.1989 P.W.1 visited the shop of P.W.7 and seized PF-725 tablets, Batch No.003 printed as Batch No.00E manufactured by A-1 firm and paid the amount. Again on 02.06.1989, P.W.1 came to the shop and seized the remaining stock of PF-725 tablets and seized Ex.P28-Bill under Ex.P27 panchanama. Tablets PF-725 were supplied to P.W.7 by A-6 firm. The owner of A-6 is A-2. M.O.1 is the tablet seized from the shop of P.W.7 on 02.06.1989. It is submitted that Ex.P27-panchanama, dated 02.06.1989, clearly establishes that there was a possibility of interpolation by making the Batch No.006 to 00E. Ex.P28 is the bill of A-6, dated 01.01.1989, wherein the Batch Nos. of 002 and 003 were stated. Interestingly, either Batch No.002 or 003 was sent to the Public Analyst. It is further submitted that the material objects i.e., item (ii) to (vi), which were seized from the residence of A-2 i.e., few empty condemned foils of PF-725 tablets, which were found in the open place in the eastern part of the building; few partly burnt empty foils of PF- 725 of M/s Unimed Laboratories; a small roll of partly burnt aluminum foil of PF-725; one small roll of PF-725 aluminum foil partly burnt and one small roll plain aluminum foil partly burnt, were not sent for analysis or marked as the Material Objects. It is also submitted that, on 11.05.1989, at about 7.00 P.M., P.W.2 along with P.W.9 (mediator) visited the premises of A-3 and seized 39 empty aluminum foils, which alleged to have resembles the stock found in the shop of P.W.7, were also not sent to the Public Analyst to verify whether it resembles with the stock of P.W.7 or not. It is further submitted that there is absolutely no evidence to show that the accused have colluded and entered into a criminal conspiracy to do an illegal act. Therefore, three different firms i.e, A-1, A-3 and A-6 represented by three different individuals A-2, A-4 and A-7 were tried in the present case without any link to establish that all the three firms represented by their representatives are collectively responsible for the offence. It is also submitted that five cases arise out of the same panchanama, dated 30.05.1989, and except the present case(C.C.No.134 of 1990) all other cases i.e., C.C.No.270 of 1990, C.C.Nos. 147 of 1995, 149 of 1995 and 394 of 1989 were acquitted and settled under plea bargaining (Chapter 21-A of Cr.P.C.) respectively. Therefore, the prosecution has miserably failed to establish its case beyond reasonable doubt and as such A-1 and A-2 are entitled for acquittal.
Sri G.U.R.C. Prasad, learned Counsel appearing for A-4 would submit that no search warrant, as mandatory under Section 100 Cr.P.C. read with Section 22 (2) of the Act, was obtained by the departmental officials to inspect the premises of A-3 firm and as such non-compliance of Section 100 (4) Cr.P.C. is fatal to the case of the prosecution and in support of the said contention, he relied upon the judgment of the Punjab and Haryana High Court in Nachhattar Singh v. State of Haryana (2013) SCJ Online (P&H) 3386)wherein the conviction imposed by the trial Court was set aside. It is further submitted that the panchanama, Form-15 and Form- 16 were not served on A-4 as required under Rules, 54, 55 and 56 of the Drugs and Cosmetics Rules, and thereby, there is clear violation of the provisions of the Act and that among two panchayatdars, only one panchayatdar was examined as P.W.9. It is also submitted that basing on the same panchanama, dated 11.05.1989, C.C.No.107 of 1990, filed against A-4 herein, was acquitted on 05.09.1997 and an appeal preferred by the State vide Crl.A.No.256 of 1999 was also dismissed by this Court on 04.10.2015. Now, basing on the same panchanama, dated 11.05.1989, another charge sheet was filed in C.C.No.134 of 1990 against A-4 and others, wherein A-4 was convicted and the same was assailed in this Criminal Revision Case, which is in contravention of Section 300 Cr.P.C. read with Article 20 (2) of the Constitution of India and also the decision of the Apex Court in State of Mizoram v. Dr.C.Sanghghina (2018) SCJ Online (SC) 507). It is also submitted that in the instant case, no drugs or any raw material were seized or found at the time of the alleged inspection. According to Form – 16, only condemned and burnt foils were said to have been seized, but they were not sent to the Analyst as required under Section 25 of the Act. It is further submitted that the ingredients of Section 18 of the Act are not proved as Form No.16 does not disclose the ingredients of Section 18 (a) (i) and (c) (ii) of the Act, which deals with manufacture for sale, distribution, sell, stock, exhibit or offer for sale and, therefore, the conviction of A-4 is illegal.
Sri Ambadipudi Satyanarayana, learned Counsel appearing for A-7 would submit that without prejudice to the contentions, he adopts the arguments submitted by learned Counsel for A-4. He further submits that after filing the above criminal revision case, A-7 filed Crl.P.No.1535 of 2007 seeking quashing of the criminal proceedings in the consolidated C.C.No.63 of 2003 i.e., C.C.Nos.408 of 1992, 147 of 1995 and 148 of 1995, which have arisen in relation to the alleged offences said to have been committed in relation to the drug viz., PF-725 tablets manufactured by M/s. Unimed Laboratories, which were arising out of the same panchanama and common in all the criminal cases and also in relation to C.C.No.134 of 1990, which is assailed in the Criminal Revision. This Court vide its orders, dated 12.03.2007, while allowing the said criminal petition quashed the criminal proceedings against A-7. It is also submitted that the Drugs Department has categorically stated in the counter filed in one of the said criminal proceedings in C.C.No.408 of 1992 and also in their evidence that A-7 is not the Managing Partner of A-6 firm viz., M/s. Nava Bharat Medical Lines and he is only a sleeping partner in the said firm and as such this Court quashed the said criminal proceedings. It is further submitted that on perusal of the documents filed along with the memo, it is clear that A-7 was not found involved in the sale of the drugs involved by A-6 firm. It is also submitted that since this Court has already quashed proceedings against A-7 in the connected C.C.Nos.408/1992, 147/1995 and 148/1996 vide orders dated 12.03.2007 in Crl.P.No.1535/2007 holding that A-7 is an innocent sleeping partner and his involvement in the sale of the subject drug is not evident, the conviction and sentence imposed against A-7 is liable to be set aside.
Stoutly refuting the aforesaid submissions, the learned Assistant Public Prosecutor representing the State contended that there is sufficient material to show that the revision petitioners/A-1, A-2, A-4 and A-7 were responsible for the commission of offences and, therefore, the Courts below have rightly convicted and sentenced the revision petitioners for the offences with which they were charged and the said findings recorded by both the Courts below do not warrant any interference by this Court.
Basing on the aforesaid contentions raised by the learned Counsel for the respective parties, the point that arise for consideration is whether the conviction and sentence imposed by the Courts below against the revision petitioners for the offences with which they were charged are sustainable in law or not?
The revisional jurisdiction of the High Court is limited and only in cases where there appears a manifest illegality or injustice, or the order suffers from any error of law, the High Court would be justified in exercising its revisional jurisdiction.
Admittedly, A-1, A-3 and A-6 are three different Firms represented by A-2, A-4 and A-7. A perusal of the material on record would show that the allegations mentioned in the complaint against A-1, A-3 and A-6 firms are that on 10.05.1989, P.W.1 picked up a sample of PF-725 tablets Batch No.003 manufactured by A-1 firm, from P.W.7 and thereafter the sample was sent to the Government Analyst, Drugs Control Laboratory, Hyderabad. It is further alleged in the complaint that on 11.05.1989, P.Ws.1 and 2, along with P.Ws.9 and 10, went to the premises of A-3 firm and at that time A-4 and A-5 were not available and A-2 brought the keys from A-4 and opened the locks. During inspection, 39 empty aluminium foils of PF 725 tablets manufactured by A-1 firm were found in the rejected foil bag along with some other rejected foils. On observation, P.Ws.1 and 2 noticed that the 39 condemned empty aluminium foil strips were similar to that of tablets seized from P.W.7. On 30.05.1989, P.Ws.1 and 2 visited the residence of A-2 and seized items 1 to 6. None of the item Nos.2 to 6, which are condemned and partly burnt aluminium foils, were sent for analysis nor marked as Material Objects. Further, no Batch number was mentioned on the contraband. Hence, in the absence of any Batch number, it cannot be inferred that the contraband seized from the shop of P.W.7 and from the residence of A-2 is one and the same.
It is further alleged in the complaint that on 02.06.1989, P.W.2 and P.W.8 proceeded to the shop of P.W.7 and seized PF-725 tablets with Batch No.PC 00E and one bill issued by A-6 firm. As per the analyst report, PF-725 tablets with Batch No.00E were declared as “Not of Standard Quality”, but Ex.P28-Bill does not contain the Batch No.00E. Hence, the prosecution has failed to prove that the accused have supplied the tablets with Batch No.00E.
That apart, partly burnt empty foils of Amplicine 250 capsules manufactured in India by M/s. Thebalic Laboratories, Hyderabad, in the eastern part of the building which is an open place, were seized from the residence of A-2. However, the said item relates to C.C.No.270 of 1990 on the file of I-Additional Judicial Magistrate of First Class, Khammam. In the said case, A-2 and P.W.7 herein are accused and that this Court by judgment, dated 10.06.2002, allowed Crl.R.C.No.149 of 1998 filed by P.W.7 and Crl.R.C.No.150 of 1998 filed by A-2 by setting aside the conviction and sentence imposed against them.
Further, no search warrant, as mandatory under Section 100 Cr.P.C. read with Section 22 (2) of the Act, was obtained by the departmental officials to inspect the premises of A-3 firm and as such non-compliance of Section 100 (4) Cr.P.C. is fatal to the case of the prosecution. It is further submitted that the panchanama, Form-15 and Form-16 were not served on A-4 as required under Rules, 54, 55 and 56 of the Drugs and Cosmetics Rules, and thereby, there is clear violation of the provisions of the Act.
The record further discloses that out of the panchanama, dated 30.05.1989, five charge sheets were filed which were taken cognizance as C.C.No.270 of 1990, C.C.Nos.147 of 1995, 149 of 1995 and 394 of 1989 and the present case in C.C.No.134 of 1990. The record also discloses that except the present case (C.C.No.134
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of 1990) all other cases i.e., C.C.No.270 of 1990, C.C.Nos. 147 of 1995, 149 of 1995 and 394 of 1989 were ended in acquittal and settled under plea bargaining respectively. Under Article 20 (2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. Section 300 Cr.P.C. lays down that a person once convicted or acquitted, cannot be tried for the same offence. In order to bar the trial of any person already tried, it must be shown (1) that he has been tried by a competent Court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts; (ii) that he has been convicted or acquitted at the trial and (iii) that such conviction or acquittal is in force. The whole basis of Section 300 (1) Cr.P.C. is that the person who was tried by a competent Court, once acquitted or convicted, cannot be tried for the same offence. From a perusal of the entire record, absolutely no drugs or any raw material were seized or found at the time of alleged inspection. Hence, the findings recorded by the trial Court, which were upheld by the appellate Court, are erroneous, perverse and illegal and the judgments rendered by the trial Court as well as the appellate Court are liable to be set aside. Accordingly, both the Criminal Revision Cases are allowed. The conviction and sentence of imprisonment imposed against the revision petitioners/A-1, A-2, A-4 and A-7 by the trial Court as affirmed by the appellate Court for the offences under Section 27 (c) for violation of Section 18 (a) (i) read with Section 17 (B) of the Act and under Section 27 (b) of the Act, for violation of Section 18 (c) of the Act read with Proviso to Clause II are hereby set aside and the revision petitioners are acquitted of the said charges. Fine amount, if any, paid by the revision petitioners shall be refunded to them. The bail bonds of the revision petitioners shall stand cancelled. Miscellaneous petitions, if any, pending shall stand closed.