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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: JANMEJOY DINDA

DATE OF JUDGMENT:       20/02/1998

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas J.      A Drugs Inspector conducted search of the premises of a nursing  home   run  by   the  respondent   under  the  name ‘Kalicharan Poly  Clinic’ at Naya Bazar in Jaleswar (Orissa) on  7.8.1996.   He  was  accompanied  by  one  Deputy  Drugs Controller and  an Assistant Drugs Controller. In the search it was  detected that  medicinal drugs were stocked for sale in two  almirahs kept in the front room of the nursing home. As respondent  had no  licence to  stock or exhibit for sale such drugs,  the Drugs  Inspector seized  22 items of drugs. Respondent was  not able  to produce  the  purchase  invoice concerning those  drugs and he failed to disclose the source from which he purchased them.      On the aforesaid facts respondent was prosecuted before a Court  of Judicial  Magistrate of First Class for offences under Section  27(b)(ii) and  Section 28  of the  Drugs  and Cosmetics Act,  1940 (for  short the ‘Act’). The magistrate, on conclusion  of the trial, convicted respondent under both counts and  sentenced him to undergo simple imprisonment for one year and a fine of Rs. 5,000/- on the first count and to simple imprisonment for one month on the second count.      Appeal filed  by the  respondent was  dismissed by  the Sessions Court  which confirmed  the conviction and sentence under both  charges. But when he filed a revision before the High Court  of Orissa  a learned  Single  Judge  found  that conviction under Section 28 of the Act was unsustainable and hence respondent  was acquitted  of  that  offence.  In  the matter of  sentence for  the offence under Section 27(b)(ii) of the  Act learned Single Judge reduced it to the period of imprisonment which  had already  been undergone and the fine was reduce to Rs.3,000/-.      State of  Orissa has  filed this special leave petition challenging the  aforesaid alteration  and modification made by the High Court. Leave is granted.      The concurrent  findings of  facts arrived  at  by  the trial court  and the appellate court which are not liable to be re-opened  are: (1) respondent stocked for sale the drugs seized from  his nursing  home on 7.8.1996 without any valid licence as  required under  clause (c)  of Section 18 of the

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Act, and  (2) respondent  did  not  disclose  to  the  Drugs Inspector, even after he was required to do so, the name and address of the persons from whom he acquired those drugs.      Learned counsel  for the  appellant contended  that the High Court  committed an  error in  holding that the offence under Section  28 of  the Act  has not  been made  out. That Section reads thus:-      "Penalty for  non-disclosure of the      name of  the manufacturer,  etc.  -      whoever contravenes  the provisions      of Section 18-A or Section 24 shall      be punishable with imprisonment for      a term  which  may  extend  to  one      year, or with fine which may extend      to one  thousand  rupees,  or  with      both."      Learned Single  Judge of  the High  Court took the view that Section  18A of the Act would have application "only if the person  from whom  the requisite  information is  sought for,  is   either  the   manufacturer  or   an   agent   for distribution" and  since the  respondent was neither of them he could  not have contravened the Section. The reasoning of the  learned   Single  Judge   in  reaching   the  aforesaid conclusion, in his own words, are the following:-      "Section 18-A deals with disclosure      of the  name of  the  manufacturer,      etc. It requires that every person,      being the manufacturer of a drug or      cosmetic  or   his  agent  for  the      distribution thereof,  shall, if so      required, disclose to the Inspector      the   names   address   and   other      particulars of the person from whom      he acquired  the drug  or cosmetic.      In order  to attract application of      Section  18-A,  a  person,  who  is      either the manufacturer of the drug      or   cosmetic    or    agent    for      distribution thereof is required to      disclose to  the inspector the name      and address  and other  particulars      of the person from whom he acquired      the articles.  If a person does not      fall  within   either  of  the  two      categories, Section  18-A will have      no application."      In this context it is necessary, to see how Section 18A of the Act is worded which is extracted below:-      18-A Disclosure  of the name of the      manufacturer, etc.  - 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   name  address  and      other  particulars  of  the  person      from whom  he acquired  the drug or      cosmetic."           (emphasis supplied)      It is  obvious that for application of the Section, the person concerned  shall not be a manufacturer of drug or his agent. In  other words,  the  person  to  whom  Section  18A applies is anyone other than a manufacturer or his agent for distribution thereof. The raison d’etre of it is that, if he is the manufacturer or his agent he cannot disclose the name

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of the  person from  whom he  acquired the  drug because  he himself is  its manufacturer.  To expect the other way is to expect  the  impossible.  Hence  there  is  no  question  of requiring him  to disclose  the identity  of the person from whom he acquired the drug. Exclusion of manufacturer and his agent from  the purview  of Section  18A is,  therefore,  on understandable premise.      It seems  to us  that learned  Single Judge of the High Court would  have missed  the monosyllable  ‘not’ in Section 18A of  the Act  when he  considered the  amplitude  of  the provision. The  position of  law  when  the  word  ‘not’  is remaining in  the provision,  is just  the other way around. The Section, therefore, would apply to any person other than the manufacturer  of a drug or cosmetic or his agent. Hence, there is  much force  in the  contention of  the State  that acquittal of  the respondent of the offence under Section 28 of the  Act is  based on  a basically  faulty premise.  Such acquittal is,  therefore, liable  to be  set aside  and  the conviction of  the respondent  under Section  28 has  to  be restored. We do so.      However, while  dealing with the sentence we are of the opinion that  for failure to disclose the name of the person from whom he acquired the drugs, he need not be sent to jail as we  feel that  such failure  could have  happened perhaps because he  was oblivious  of the  name and  address of  the person from whom he purchased the drug. That apart, there is no case  for   the Drug  Inspector, or  for the  prosecution itself, that  any of  the drugs seized from the nursing home was either  a spurious  drug or  a misbranded  one or even a time expired  medicine. It  means that the drug seized would have been otherwise genuine medicine.      We also  notice that  the offence  under Section  28 is punishable with  either imprisonment  or with fine which may extend to  Rs.1,000/- or with both. In other words, sentence of imprisonment  is not compulsory. In such circumstances, a sentence of  fine of  Rs.1,000/- would be sufficient to meet the ends  or justice for Section 28 of the Act so far as the facts in this case are concerned.      The remaining  contention is  that learned Single Judge has acted  without jurisdiction when he reduced the sentence for the  offence under  Section  27(b)(ii)  of  the  Act  to imprisonment for  the period  which respondent  had  already undergone and  to a fine of Rs. 3,000/-. For considering the above contention  it is  necessary to  extract the  material portion  of the said sub-clause:      "27. Penalty for manufacture, sale,      etc., of  drugs in contravention of      this Chapter.-  Whoever, himself or      by any  other person on his behalf,      manufactures  for   sale   or   for      distribution, or  sells, or  stocks      or exhibits  or offers  for sale or      distributes,-      (a)................................      ..      (b) any drug-      (i)................................      .      (ii) Without  a  valid  licence  as      required  under   clause   (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 three years and with

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    fine which  shall not  be less than      five thousand rupees:      Provided that  the Court  may,  for      any adequate and special reasons to      be recorded in the judgment, impose      a sentence  of imprisonment  for  a      term of  less than  one year and of      fine of  less  than  five  thousand      rupees;"      This Court  has held  in Ram Shankar Misra vs. State of UP [AIR  1976 SC  727] that the sentence under Section 27 of the Act cannot be reduced to one of fine only.  Again in M/s Rajasthan Pharmaceutical Laboratory Bangalore and others vs. State of  Karnataka [AIR 1981 SC 809] this Court pointed out that a  sentence of imprisonment is compulsory under Section 27 (b)(ii)  of the  Act. But  in view  of the proviso to the Section (as  quoted above)  it cannot be said that the Court has no  jurisdiction to  reduce the sentence of imprisonment below the  period of six months. If the conditions specified in the  proviso are  present, the  Court has  the  power  to reduce the  sentence even  further down. For that there must be adequate  and special  reasons and such reasons should be recorded in  the judgment and there shall still be a term of imprisonment and fine in the reduced sentence.      Learned  Single   Judge  has  given  some  reasons  for reducing the sentence of imprisonment "to the period already undergone" and  to a fine of Rs.3,000/-. Appellant-State has not even  mentioned in  the special  leave petition that the reasons shown  by  the  learned  Single  Judge  are  neither adequate not  special. We  are, therefore,  not inclined  to enhance the  term of  imprisonment or  the quantum  of  fine further upward  for the  offence under  Section 27(b)(ii) of the Act.      In the  result, we  allow this  appeal by setting aside the acquittal  under Section  28 of  the Act. We restore the conviction of  the respondent of the said offence. We impose a fine  of Rs.1,000/- on him for the said offence and direct that in  default of  payment of  such fine within two months respondent shall  undergo simple imprisonment for one month. Appeal is thus, allowed to that extent.