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PETITIONER: MOHD. SHABIR

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT17/01/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR  564            1979 SCR  (2) 997  1979 SCC  (1) 568

ACT:      Drugs and  Cosmeties  Act,  1940,  S.  27,  "Stocks  or exhlbits for  sale" interpreration-Possession simpliciter of drug, whither sufficient for conviction.

HEADNOTE:      The apellant  was apperhended  at the Bhuysawal railway station, and  17 containers  with 17,000  white tablets were recovered from  him. The  tablets were  tested by the public analyst, and found to be not in accordance with the standard specified under s. 18(a) of the Drugs and Cosmeties Act. The appelant  was   duly  tried   and  convicted  by  the  Trial Magistrate, under  Sections 27(a)(ii) and 28 of the Act. The appellant pleaded  guilty, and in view of his young age, and that it  was his first offence, the Magistrate sentenced him only till the rising of the Court. But in revision, the High Court enhanced the sentence to one year’s R.I.      It was  contended that as there was no evidence to show that  the   tablets  were   "for  sale",   their  possession simpliciter,  of   any  quantity   whatsoever,   would   not constitute an offence under s. 27.      Allowing the  appeal as regards the conviction under s. 27, the Court, ^      HELD:1. The absence of any cmma after the word "stocks" clearly indicates  that the  clause "stocks  or exhibits for sale" is  one indivisible whole and it contemplates not mere stocking the  drugs, but  stocking the drugs for the purpose of sale, and unless all the ingredients of this category are satisfied, section  27 of  the Act  would not  be satisfied. [999 F-G]      2. There  is no evidence to show that the appellant had either got  these tablets  for sale,  or was selling them or had stocked them for sale. Before a person can be liable for prosecution or conviction under s. 27(a)(i)(ii) read with s. 18(c) of  the Act,  it must  be proved  by  the  prosecution affirmatively that  he was  manufacturing the drugs for sale or was  selling the  same, or  had stocked them or exhibited the articles  for sale.  The possession  simpliciter of  the articles does  not appear  to be punishable under any of the provisions of the Act. [999 G. 1000 B-C]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 103 of 1975.      Appeal by  Special Leave  from the  Judgment and  Order dated   12-2-1973 of  the  Bombay  High  Court  in  Criminal Application No. 774/72.      U. P. Singh for the Appellant.      H. R. Khanna and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-In this  appeal  by  special  leave  the appellant has been convicted under section 27 (a) (i) of the Drugs and Cosmeties 998 Act, 1940  and sentenced  to rigorous  imprisonment for  one year and  a fine of Rs. 200/- as modified by the High Court. The trial  court also  convicted the appellant under section 27 (a)  (ii) and  section 28  of the  Act  but  no  separate sentence was  awarded under  these counts.  The trial  court had, in  fact, imposed  a sentence of imprisonment only till the rising of the Court but the High Court in its revisional jurisdiction enhanced  the sentence  to one  year’s rigourus imprisonment,  and  hence  this  appeal  by  sepcial  leave. According to  the prosecution,  on 5.5.1970  at about  11.30 a.m. the  complainant Drugs  Inspector, Jalagaon  received a telephonic meassage  from the  Senior Railway  Sub-Inspector Bhusawal to the effect that the appellant had been caught at the Bhusawal  railway station  with  17  plastic  containers containing 17,000  white coloured tablets. On receiving this message the  complainant went to Bhusawal railway station on the next day and after taking permission from the magistrate he took  the sample of the tablets and sent it to the public analyst and after receiving his report, he filed a complaint against the  appellant under  the various  sections  of  the Drugs and  Cosmetics Act, 1940. The learned trial magistrate framed two  charges against  the appellant.  One charge  was under section  27 (a)  (i) and  27 (a) (ii) of the Drugs and Cosmetics Act (hereinafter referred to as the "Act") and the other charge  related to section 28 read with section 18A of the Act.  The appellant  pleaded guilty  to the  charge  and admitted  all   the  facts  contained  in  the  charge.  The appellant, however,  stated  that  as  this  was  his  first offence, he  promised not to commit any offence again and as he was  an agriculturist  and a  young man,  he pleaded  for mercy. The  prosecution in  support of the case examined the complainant to prove the facts leading to the prosecution of the appellant.  The learned  magistrate acccpted the plea of guilty and  convicted the  appellant  as  indicated  in  the judgment. The  High Court, however, enhanced the sentence as mentioned above.      Mr. U.  P. Singh appearing in support of the appeal has raised a short point before us. He has submitted that taking the prosecution  case at  its face  value, no offence can be said to have been committed under section 27 (a) (i) or (ii) of the  Act. It  was submitted that the ingredients required by section  27  have  not  been  proved  in  this  case  and therefore, even  if, the  accused pleaded  guilty, that will not enable  the prosecution  to convict  him on  his plea of guilty. Section 18 (c) runs thus :           "manufacture  for  sale,  or  sell,  or  stock  or      exhibit for  sale, or  distribute any drug or cosmetic,      except under, and in accordance with the conditions of,      a licence issued for such purpose under this Chapter." 999

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    Section 27 is the penal section under which the offence is punishable and this section runs thus:           "Whoever himself  or by  any other  person on  his      behalf manufactures for sale, sells, stocks or exhibits      for sale or distributes-(a) any drug-           (i)  deemed to  be misbranded  under  clause  (a),                clause (b),  clause (e),  clause (d),  clause                (f) or clause (g) of secton 17 or adulterated                under section 17B; or           (ii) without a  valid licence  as  required  under                caluse (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      ten years and shall also be liable to fine;           Provided that  the  Court  may,  for  any  special      reasons to  be recorded in writing impose a sentence of      imprisonment of less than one year;"      It was  contended by  Mr. Singh  that in  order to fall within  the,   ambit  of   this  section  the  accused  must manufacture the  drugs for sale or stock or exhibit for sale or distribute the same. There is no evidence in this case to show that  the appellant  had any  shop or  that  he  was  a distributing agent.  All that  has been  shown is  that  the tablets concerned were recovered from his possession. It was urged that  possession simpliciter  of the  tablets  of  any quantity whatsoever  would not  fall within  the mischief of section 27  of the  Act. On an interpretation of section 27, it seems  to us  that the  arguments of  Mr. Singh  is  well founded and  must prevail.  The words  used in  section  27, nameely, "manufacture  for sale",  sells, have a comma after each clause  but there  is no comma after the clause "stocks or exhibits  for sale".  Thus the  section  postulate  three separate categories  of cases  and no other. (1) manufacture for sale;  (2) actual  sale; (3)  stocking or exhibiting for sale or  distribution of any drugs. The absence of any comma after the  word "stocks"  clearly indicates  that the clause "stocks or  exhibits for  sale" is one indivisible whole and it contemplates  not merely  stocking the drugs but stocking the drugs  for the  purpose  of  sale  and  unless  all  the ingredients of  this category  are satisfied,  section 27 of the Act would not be attracted. In the present case there is no evidence  to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr. Khanna appearing for the State, however, contended that the  word "stock"  used in  section is  wide enough  to include the possession 1000 of a  person with  the tablets and where such a person is in the possession  of  tablets  of  a  very  huge  quantity,  a presumption should be drawn that they were meant for sale or for distribution.  In our  opinion, the  contenton is wholly untenable and  must be  rejected. The inter pretation sought to be  placed by  Shri Khanna  does not flow from a true and proper interpretation  of section  27. We,  therefore,  hold that before  a person  can  be  liable  for  prosecution  or conviction under  section 27  (a) (i) (ii) read with section 18 (c)  of the  Act, it  must be  proved by  the prosecution affirmatively that  he was  manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles  for   sale.  The  possession  simpliciter  of  the articles does  not appear  to be punishable under any of the provisions  of   the  Act.   If,  therefore,  the  essential ingredients of  section 27  are not  satisfied the  plea  of guilty cannot lead the Court to convict the appellant.      As regards  the second  charge, it seems to us that the

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case of  the appellant  is clearly  covered by  the language contained in  section 18A  read with section 28. Section 18A runs thus:           "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  same, address  and other  particulars of      the person from whom he acquired the drug or cosmetic."      Section 28  which makes no disclosure of 18A punishable reads thus:           "Whoever contravenes the provisions of section 18A      shall be  punishable with imprisonment for a term which      may extend  to one  year, or with fine which may extend      to five hundred rupees, or with both."      In this  case, there  is unchallengable evidence of the complainant  that   after  recovering   tablets   from   the possession of  the appellant,  he had  served  a  registered notice to  him to  disclose the  source from  which  he  had acquired the  tablets and  despite this notice the appellant refused  to  disclose  the  source.  Thus  the  act  of  the appellant clearly  falls within  the ambit  of section 28 of the Act. The trial court further did not impose any separate sentence under  this section.  But that will not be a bar to imposing a  proper  sentence  by  this  Court  provided  the sentence does  not exceed the sentence already imposed under section 27  (a) (i).  When the  High  Court  was  moved  for enhancing the  sentence, it  was moved only under section 27 (a) (ii) of the Act because under that 1001 section the  minimum sentence  to be  given was one year. As the High  Court was  not satisfied with the reasons given by the trial  court for  giving sentence  less than one year it appears to  have enhanced  the sentence to one year. In view of our  finding that  section 27 (a) (i) have no application to this case, the charge on this count against the appellant must fail  and the  appellant  must  be  acquitted  of  this charge. So  far as  section  28  is  concerned  the  maximum punishment which  can be  imposed  is  only  one  year.  The appellant is a young man and comes from a respectable family and had  made a  very candid  confession before the Court in pleading guilty. In these circumstances, we therefore do not think that  any deterrent  sentence is called for. We would, therefore, uphold  the conviction  of  the  appellant  under section 28  but give  the sentence  till the  rising of  the Court which he has already undergone. The appellant will now be released  forthwith. The  sentence of  a fine  of Rs. 200 will be maintained under section 28 and not under section 27 (a) (i).  The fine  if not paid shall be paid within a month from today. Accordingly, the appeal is allowed in part. M.R.                                 Appeal allowed in part. 1002