Full Judgment Text
NON-REPORTABLE
2024 INSC 110
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO……………….OF 2024
(@Petition for Special Leave Appeal (Crl.) No.256 OF 2022)
PALANI …APPELANT(S)
VERSUS
THE TAMIL NADU STATE …RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Leave granted.
2. This appeal arises out of an order passed by the learned Single Judge
th
of the High Court of Judicature at Madras dated 6 September 2021 in
CRLRC No.413 of 2019, by which interference in the order of the Additional
1 th
District & Sessions Judge, Tiruvallur dated 16 April, 2019 has been
refused. The lower Appellate Court had modified the order of the Chief
2 rd
Judicial Magistrate dated 23 November 2018 in as much as it set aside the
appellant’s conviction under Section 18 (c) read with Section 27 (b)(ii) of
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2024.02.14
17:17:49 IST
Reason:
1
‘The lower Appellate Court’
2
‘The Trial Court’
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the Drugs and Cosmetics Act, 1940 while confirming the conviction and
sentence in regard to Section 18(A) read with Section 28, of the said Act.
3. A brief review of facts, as borne out by the judgments of the Courts
below is necessary for adjudication of the instant dispute.
4 th
3.1 One Palani ran a clinic which on 13 October, 2015 was
inspected by the officials of the State, viz. The Pallippattu Range
Drug Inspector; Joint Director, Tiruvallur District Health
Department; Zone Drug Inspector Poonamallee.
3.2 The inspection found 29 types of allopathic medicines meant
for distribution without the proper paperwork (license) for sale.
Moreover, upon being questioned as to the source of procurement
of these medicines, details remained unfurnished.
3.3 The Drug Inspector, Pallippattu filed a complaint under
Section 200 Code of Criminal Procedure, 1973 under the Sections
noted above. Prosecution was initiated on the basis of 6 witnesses;
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12 Exhibits and with the 29 types of medicines (a small quantity )
recovered, being marked as material objects.
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Hereinafter referred to as ‘The Act’
4
Referred to as ‘The Appellant’
5
Annexure P-1
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3.4 Upon consideration of the evidence presented, the Trial Court
found the case of the prosecution to have been proved beyond
reasonable doubt and, therefore, the Appellant was sentenced to two
years rigorous imprisonment along with a fine of Rs. 1,00,000/-. In
default whereof, he was to undergo three months simple
imprisonment for the offences under Section 18(c) read with
Section 27(b)(ii). For the offence under Section 18A read with 28
of the Act, the sentence was six months simple imprisonment with
a fine of Rs. 20,000/- with one-month simple imprisonment in
default. Sentences awarded were concurrent in nature. Further, a
cost of Rs.2500/- stood imposed for newspaper publication under
Section 35 of the said Act.
3.5 On appeal, the learned Additional District & Sessions Judge,
i.e., the lower Appellate Court was faced primarily with the issue,
of whether it has been proved that the drugs recovered were in the
possession of the appellant for the purpose of sale/distribution.
3.6 In deciding this question, the Court noted that no patients or
any other persons were examined to establish that the drugs so
confiscated were actually sold. No bills/receipts were produced. It
was noted that PW5 as also PW3 testified to the fact that the
Appellant was running a medical shop, but it was observed that no
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proof had been offered to show that the drugs in the clinic were for
sale. The Court also relied on Ex. P-10 ( letter of the accused to the
Drug Inspector ) referred to as A-10 in its judgment, to state that
there is only admission of possession but none for sale/distribution.
It was, therefore, observed that no evidence has been put forth by
the complainant in regard to sale and/or distribution. The offence
under Section 18 (c) of the Act was, therefore, not proven.
3.7 The conviction and sentence in this regard was set aside while
others were confirmed. Accordingly, it was held that the Appellant
was entitled to a refund of Rs. 1,00,000/-.
4. A criminal revision case stood filed against the judgment and order
of the lower Appellate Court. It was observed that the scope of a Revisional
Court is limited and is not akin to an Appellate Court. On account of the
absence of any perversity or infirmity in the order of the lower Courts, the
revision was dismissed. A further prayer was made to set aside the conviction
and sentence under Section 18(A) of the Act and vice it, a fine could be
imposed. The same was rejected.
5. Hence, the present appeal.
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6. We have heard Mr. S. Nagamuthu, learned senior counsel and Mr.
M.P. Parthiban, learned counsel for the appellant and Dr. Joseph Aristotle,
learned senior counsel for the respondent-State.
7. Before us, there is not a serious challenge to the conviction itself.
However, it is submitted that the appellant, being a doctor, had no ill
intention (mens rea) to contravene the law and undertake any action which
may be scuttling the statutory provisions. It is as such prayed that the
sentence of imprisonment be modified to that of a fine.
8. A proper sentence, as has been observed by this Court in Mohammad
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Giassudin v. State of Andhra Pradesh is an amalgam of many factors
pertaining to the offence itself as also others such as prior record if any, age,
record of employment, education, home life, social adjustment and
emotional and mental conditions of the offender etc.
9. At present, the impugned judgment as it stands, convicts the
Appellant under Section 18A read with Section 28 of the Act. Both these
provisions concern the disclosure or non-disclosure respectively of the name
of the manufacturer. The former stipulates a requirement for every person
who is not a manufacturer or agent of distribution to disclose the name of the
person from whom he has acquired such drug or cosmetic. The latter
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(1977) 3 SCC 287
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imposes a punishment for violation of the aforesaid requirement to the tune
of imprisonment up to a year or with a fine not less than Rs.20,000/-, or with
both.
10. In the present case, the punishment imposed is six months simple
imprisonment with the minimum statutory fine.
11. It is not in dispute that the Appellant is a doctor. We notice that this
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Court in S. Athilakshmi v. State Rep. by The Drug Inspector had
acquitted a doctor of stocking a small amount of drug as the same was not
slated to be equal to selling medicines across the counter in a shop. This
offence, as already noted above, was found not proved by the lower
Appellate Court.
12. The only aspect which remains is a non-disclosure of the name of the
manufacturer. We find that the quantities of the 29 kinds of medicines
recovered from the clinic run by the Appellant, were of small quantity. In
such a situation, non-disclosure of the name of the manufacturer/person from
whom the said medicines were acquired, cannot be said to be endangering
public interest ( which obviously, is the primary object of the prohibition in
law ) by allowing the circulation of such substances unauthorizedly.
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2022 SCC OnLine SC 269
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13. In the attending facts and circumstances, considering that the
Appellant is a doctor and also keeping in view the observations of this Court
in Mohammad Giassudin (supra), we are of the considered view that
imposing a sentence of imprisonment would be unjustified, particularly
when the intent to sell/distribute under Section 18(c) of the Act has been held
unproven. Therefore, we find it fit to modify the impugned judgment, set
aside the sentence of imprisonment as awarded, and instead thereof, impose
a fine of Rs.1,00,000/- on the Appellant.
14. The appeal is allowed to the extent indicated above. The exemption
th
from surrendering granted by this Court vide order dated 7 January, 2022 is
made absolute. Pending application(s) if any, shall stand disposed of.
……………………J.
(B.R. GAVAI)
……………………J.
(SANJAY KAROL)
New Delhi;
th
14 February, 2024.
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