http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: BHARAT PRASAD GUPTA

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT26/09/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR 1043            JT 1995 (7)   191  1995 SCALE  (5)541

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      Leave granted.      According to  the prosecution  case, on  22.8.1977  Dr. A.K. Layek  and Dr.  Naresh Chandra  Sen  lodged  a  written complaint with  the Officer Incharge of Andal Police Station to the  effect that  one lady,  Ledu Ruidas, had come to the clinic of Dr. Layek at about 9.00 a.m. with septic abortion. She was  three months  pregnant and  her treatment  had been mishandled  with   instruments  and  medicines  (injections, tablets etc.)  by the appellant herein in his dispensary and since the  patient was  complaining of vaginal discharge and fever with  lower abdominal  pain, they  had advised  her to visit the  hospital for  proper treatment. On receipt of the complaint, investigation  was taken  in hand  and  from  the dispensary  of   the  appellant   some  instruments  besides allopathic medicines  which stood  exhibited for  sale  were seized. The  appellant is a practitioner of Ayurvedic system of medicine  and did  not possess  any licence for the sale, storage or  exhibition for  sale of any allopathic medicine. The instruments  and allopathic  medicines (about  41 items) were taken  into possession  through a seizure memo and were secured in  a parcel by the raiding party which comprised of the police  officials and independent panches. The appellant was challaned  for an  offence under Section 27 of the Drugs and Cosmetics  Act, 1940  (hereinafter referred  to as  ‘the Act’) readwith  West Bengal  Act of  1973. On  the appellant pleading not  guilty, the trial commenced before the learned Sessions Judge.  After recording  the prosecution  evidence, the Trial Court found the case against the appellant to have been established  and convicted  the appellant  for the said offence and sentenced him to suffer one year RI and to pay a fine of  Rs.500/- and  in default  to suffer  further RI for three months.  The appellant  unsuccessfully questioned  his conviction and  sentence through  an appeal  before the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Court of  Calcutta. Subsequently,  even  a  Review  Petition filed by  the appellant  for reconsideration of the judgment of the  High Court  dated 17.4.1990 was rejected. By special leave, the appellant is before us.      Mr. U.R.  Lalit, learned  Sr. counsel appearing for the appellant submitted that there was no proof available on the record to  establish that the seized drugs were "allopathic" medicines falling  within the  definition of Section 2(b) of the Act in the absence of any expert opinion of the chemical examiner in that behalf. Learned counsel also submitted that the mere  possession of  the allopathic medicines, without a licence, would  not be  an offence, unless it is established that the  medicines were  meant  either  for  sale  or  were stocked for exhibition or had been manufactured for sale.      The prosecution  examined eight  witnesses at the trial including the  complainant. The  appellant did  not lead any evidence in  defence. Though  in an appeal by special leave, this court  generally does  not reappreciate  the  evidence, considered by  two courts below, but to satisfy our judicial conscious we  have examined the evidence to find out whether the findings  recorded by both the courts below are based on proper appreciation  of evidence.  We find  that PW-3  Kumat Kanti Roy who knew both Dr. Layek and Dr. Naresh Chandra Sen as well  as the  appellant desposed that the appellant had a dispensary at  Ukhra and  that he had been to the dispensary of the  appellant and  had joined the police party when they visited the  dispensary of  the appellant.  In his  presence some medicines  which were exhibited and were lying in stock and some  instruments were  seized by  the police. A seizure list was prepared which was signed by him. During the cross- examination he  was only  asked whether  the appellant had a ‘medicine shop’  or not  to which  the witness replied ‘that the  appellant   had  no   medicine  shop’.  This  would  be insignificant because during his examination-in-chief he had deposed that  the appellant  was running a dispensary. PW-4, Arun Kumar  Majhi corroborated the evidence of PW-3 and went on to add that the appellant used to administer medicines to the  patients   and  that   seizure  of  the  medicines  and instruments had  taken place  in his presence. PW-5, Narayan Chandra Banerjee,  a resident  of Ukhra also deposed that he knew the  appellant and  had seen  patients  coming  to  his dispensary and  that the  police had  seized the  allopathic medicines and  instruments from  the same  dispensary. He is also a  witness to  the seizure  memo prepared at that time. PW-7, Sudhir  Chandra Guria  who had  partly  conducted  the investigation, but  had since  retired, specifically deposed about the  seizure of about 41 items of allopathic medicines and instruments from the dispensary of the appellant. He had prepared the seizure lists duly attested by panch witnesses. The appellant  could not  produce any  licence or permit for those medicines  and had  no explanation  to offer  for  the stock of  those medicines  which were  exhibited for sale in his dispensary.  Further investigation  had been taken up by PW-8, Chittaranjan Debnath who deposed about the other steps taken by him during the investigation of the case. The Trial Court discussed  the entire  evidence with great details and repelled the submissions that in the facts and circumstances of this  case the offence against the appellant was not made out. The High Court agreed with the findings recorded by the Trial Court  and dismissed  the appeal.  The High Court also opined that  by keeping  in his  possession  the  allopathic medicines  and   exhibiting  the   same  for   sale  in  his dispensary, the  appellant had contravened the provisions of Section 18(c)  of the  Act and  therefore had  been  rightly convicted by  the trial  court for the offence under Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

27 of  the Act.  On the  basis of the material on the record and keeping in view the ingredients of the offence, we agree with the trial court and the High Court that the prosecution has established  the case  against the  appellant  beyond  a reasonable doubt. We cannot persuade ourselves to agree with Mr. Lalit  that the  proof on  the record does not show that the medicines  seized from  the  appellant  were  allopathic medicines  or   that  the  same  did  not  fall  within  the definition of  drugs under  Section 2(b)  of  the  Act.  The appellant did not offer any such explanation at any stage of the investigation/trial  nor led  any evidence in defence on that aspect.      Mr. Lalit then submitted that the sentence in this case is harsh and severe. We find force in that submission.      The appellant  on the  prosecution’s own  showing is an Ayurvedic practioner  running a  dispensary. Both  the  High Court and the trial court did not find him guilty of causing the abortion  of Ledu  Ruidas by  use of  any  injection  or medicine or  instruments for lack of sufficient evidence. He has been convicted for having in his possession for sale and exhibiting  the   stock  of   allopathic  medicines  in  his dispensary without  a licence.  The mitigating circumstances for reduction  of the  sentence as pointed out by Mr. Lalit, the learned  senior advocate,  which  have  been  stated  on affidavit by the appellant himself also are :      "The  prosecution  has  been  continuing      since 1977.  The petitioner  has already      undergone severe mental agony. He is the      only bread  earner in the family. He has      eight children  - 3  daughters and  five      sons. The  second and third daughter are      of  21   years  and   18  years  of  age      respectively.  The   Petitioner  has  to      arrange  for  their  marriage.  All  the      children except the first two daughter’s      are school  going. His  wife does not do      any job.           He has  to look  after his  widowed      sister-in-law who  has four  children  -      all daughters.  Her two daughters are to      be married by the petitioner.           With  such  a  huge  family  to  be      fended,   the    imprisonment   of   the      petitioner would  mean total collapse of      the family."      After the conviction of the appellant was upheld by the High Court, he filed a special leave petition in this Court. He furnishing  proof of  surrender dated 10th July, 1990 and notice was  thereafter issued  in the SLP. The appellant was admitted to bail by an order of this Court dated 3rd August, 1990 but  he was  actually released  on bail  only after the modification of  the bail  order dated  3.8.1990 by an order dated 9.9.1990,  made by  this Court. The appellant had also remained for  some period in custody during the trial and as an undertrial.  During the period the appellant had remained on bail, it is not disputed before us, he has not in any way abused  the   concession  of   bail  or   indulged  in   any objectionable activity. The appellant has been on bail since 1990. He  was on  bail  during  the  trial  and  during  the pendency of the appeal in the High Court as well. Keeping in view the  peculiar facts  and circumstances of this case and the comparatively small quantity of the allopathic medicines recovered  from   his  dispensary  and  the  fact  that  the proceedings have  continued for  almost two  decades, in our opinion, the interest of justice would be met by maintaining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

his conviction  as recorded by the Trial Court and upheld by the High  Court but reducing the sentence of imprisonment to the period  already undergone  by  him.  We  make  an  order accordingly. The  bail bonds  of the  appellant shall  stand discharged.