Sunday 4 October 2015

When accused is entitled to be acquitted under Drugs Act?

  A perusal of this evidence would clearly
 indicate that P.W.1, Raghuvir Bhise, has not deposed
 about the manner in which the samples were taken and the
 manner in which the samples were sealed. No details are
 given in respect of the containers which were used nor
 are details given regarding the sealing of the samples
 including the description of the seal. The learned
 Trial Court while referring to Section 22(2) of the
 Drugs and Cosmetics Act, 1940 has come to the conclusion
 that the aforesaid provision makes the provisions of the
 Code of Criminal Procedure 1973 (2 of 1974) applicable
 to any search or seizure under that chapter as the
 provisions of the Code of Criminal Procedure apply to
 any search or seizure made under the authority of a - 5 -
 warrant issued under Section 94 of the Code of Criminal
 Procedure. The learned Trial Court by referring to
 Section 104 of the Code of Criminal Procedure has held
 that it was necessary for the Drug Inspector to have
 drawn a panchanama in the presence of two independent
 witnesses while taking the sample.
 6. The purpose of seizure of any document or
 article in the presence of independent persons lends
 assurance to the Court in respect of the factum of
 seizure of that document or an article. A
 contemporaneous document like that of a panchanama which
 evidences such seizure of a document or an article has
 great corroborative value. In the present case, apart
 from the fact that P.W.1, Raghuvir Bhise, has not
 deposed about the details of the drawing of the samples,
 the samples were not drawn in the presence of any
 independent persons nor was a panchanama drawn to that
 effect. The prosecution has examined P.W.3, Vijay
 Sardessai, who was the proprietor of M/s. National
 Agencies from whose shop the sample was drawn. P.W.3,
 Vijay Sardessai, also only states "on 13.8.96 when the
 Drug Inspector R. D. Bhise came to my premises and
 took some samples. The samples were obtained of
 Framycetine skin cream of 14 tubes were taken by the
 said Bhise. Two of our staff members were present
 during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
 they have both signed the panchanama. I also signed the
 panchanama and I identify my signature at point ’X’ at
 Exh.PW3/A".
 7. It appears that a panchanama in respect of
 the seizure was prepared by P.W.1, Raghuvir Bhise.
 However, no panchanama was drawn in respect of the
 drawing of the samples. P.W.1, Raghuvir Bhise, also
 does not speak about the details of the seal which was
 affixed. The report of the Government Analyst at
 Exh.PW1/F refers to the fact that the seals were intact
 and tallied with the specimen impression of the seal
 received separately. A letter bearing the specimen seal
 impressions is at Exh.PW1/E. This letter is dated 13th
 July, 1995 i.e. after more than 15 days of the drawing
 of samples. It appears that the letter of specimen
 seals was not prepared at the spot when the samples were
 sealed. The samples were admittedly, according to
 P.W.1, Raghuvir Bhise, in his custody from 20th June,
 1995 till 30th July, 1995. Thus, the importance of the
 report of the Chemical Analyst is completely whittled
 down by virtue of these facts.
 8. The learned Trial Court, therefore, according
 to me, was completely justified in acquitting the
 Respondents/Accused.
IN THE HIGH COURT OF BOMBAY AT GOA
 CRIMINAL APPEAL NO. 52 OF 2002
 State of Goa,

 versus
 Shri Tejpal P. Pandia,

 CORAM: P. V. HARDAS, J.
 DATED: 13TH NOVEMBER, 2003.


 The State being aggrieved by the acquittal of
 the Respondents for an offence punishable under Section
 27 of the Drugs and Cosmetics Act, 1940, as recorded by
 the learned Judicial Magistrate First Class, Bicholim, - 2 -
 by Judgment dated 20th August, 2002, in Criminal Case
 No. 20/0A/96/A, has filed the present Appeal.
 2. The facts in brief as are necessary for the
 decision of this Appeal are set out hereunder:-
 P.W.1, Raghuvir Bhise, a Drug Inspector
 appointed under Section 21 of the Drugs and Cosmetics
 Act, 1940, visited the premises of one M/s. National
 Agencies on 28th June, 1995. During his visit, he found
 that several drugs meant for sale were stocked in the
 premises. P.W.1, Raghuvir Bhise, drew in quantities
 4x1x15 gms of Framycetine skin cream 1% W/W, bearing
 batch No.144 with the date of manufacture as November,
 1994 and having an expiry date of 24 months from the
 date of manufacture. The said drug, of which the sample
 was drawn was manufactured by the Respondents. The drug
 was thereafter sent for analysis and the said drug was
 found to be not conforming to the standards for
 Framycetine Sulphate in terms of Section 16(1)(a) read
 with the standards set out in the second schedule. On
 the basis of the report of the Analyst, P.W.1, Raghuvir
 Bhise, filed a complaint in the Court of Judicial
 Magistrate First Class, Bicholim against the present
 Respondents.
 3. The learned Judicial Magistrate First Class, - 3 -
 Bicholim, vide Exh.24 explained the particulars of the
 offence to the Accused who pleaded not guilty and
 claimed to be tried. The prosecution in support of its
 case examined 3 witnesses while the Accused in their
 defence examined one Pasupathi Supaya as AW.1. The
 learned Judicial Magistrate First Class, Bicholim,
 recorded the finding of not guilty and acquitted the
 Respondents/Accused. Hence, the present Appeal. The
 learned Trial Court acquitted the Accused principally on
 the ground that P.W.1, Raghuvir Bhise, had admittedly
 not taken the samples in the presence of independent
 witnesses nor had he drawn a panchanama regarding the
 drawing of the samples. According to the learned Trial
 Court, such contemporaneous record was extremely vital
 in order to prove the drawing of the samples. The
 learned Trial Court further acquitted the Accused on the
 ground that the report of the Government Analyst had not
 been sent to the Respondents/Accused and, therefore, a
 valuable right to have the report of the Government
 Analyst questioned by referring the sample for analysis
 had been deprived.
 4. With the assistance of the learned Public
 Prosecutor appearing on behalf of the State and the
 learned Counsel appearing on behalf of the
 Respondents/Accused, I have perused the evidence of the
 witnesses. In respect of the drawing of the sample, - 4 -
 P.W.1, Raghuvir Bhise, has this to say:
 "That, I, at the time of
 drawing the sample of the
 said drugs, issued an
 intimation in Form - 17, as
 required under Rule 56 of
 Drugs and Cosmetic Rule 1945
 informing the purpose of
 drawing the said sample and
 the receipt of which was
 obtained by signing duplicate
 copy of the said Form-17".
 "All the samples that were
 drawn were effectively sealed
 and suitable marked in
 presence of Mr. Vijay
 Sardessai, Proprietor cum
 Competent person of the said
 premise, as required under
 Section 23(4) of Drugs and
 Cosmetics Act".
 5. A perusal of this evidence would clearly
 indicate that P.W.1, Raghuvir Bhise, has not deposed
 about the manner in which the samples were taken and the
 manner in which the samples were sealed. No details are
 given in respect of the containers which were used nor
 are details given regarding the sealing of the samples
 including the description of the seal. The learned
 Trial Court while referring to Section 22(2) of the
 Drugs and Cosmetics Act, 1940 has come to the conclusion
 that the aforesaid provision makes the provisions of the
 Code of Criminal Procedure 1973 (2 of 1974) applicable
 to any search or seizure under that chapter as the
 provisions of the Code of Criminal Procedure apply to
 any search or seizure made under the authority of a - 5 -
 warrant issued under Section 94 of the Code of Criminal
 Procedure. The learned Trial Court by referring to
 Section 104 of the Code of Criminal Procedure has held
 that it was necessary for the Drug Inspector to have
 drawn a panchanama in the presence of two independent
 witnesses while taking the sample.
 6. The purpose of seizure of any document or
 article in the presence of independent persons lends
 assurance to the Court in respect of the factum of
 seizure of that document or an article. A
 contemporaneous document like that of a panchanama which
 evidences such seizure of a document or an article has
 great corroborative value. In the present case, apart
 from the fact that P.W.1, Raghuvir Bhise, has not
 deposed about the details of the drawing of the samples,
 the samples were not drawn in the presence of any
 independent persons nor was a panchanama drawn to that
 effect. The prosecution has examined P.W.3, Vijay
 Sardessai, who was the proprietor of M/s. National
 Agencies from whose shop the sample was drawn. P.W.3,
 Vijay Sardessai, also only states "on 13.8.96 when the
 Drug Inspector R. D. Bhise came to my premises and
 took some samples. The samples were obtained of
 Framycetine skin cream of 14 tubes were taken by the
 said Bhise. Two of our staff members were present
 during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
 they have both signed the panchanama. I also signed the
 panchanama and I identify my signature at point ’X’ at
 Exh.PW3/A".
 7. It appears that a panchanama in respect of
 the seizure was prepared by P.W.1, Raghuvir Bhise.
 However, no panchanama was drawn in respect of the
 drawing of the samples. P.W.1, Raghuvir Bhise, also
 does not speak about the details of the seal which was
 affixed. The report of the Government Analyst at
 Exh.PW1/F refers to the fact that the seals were intact
 and tallied with the specimen impression of the seal
 received separately. A letter bearing the specimen seal
 impressions is at Exh.PW1/E. This letter is dated 13th
 July, 1995 i.e. after more than 15 days of the drawing
 of samples. It appears that the letter of specimen
 seals was not prepared at the spot when the samples were
 sealed. The samples were admittedly, according to
 P.W.1, Raghuvir Bhise, in his custody from 20th June,
 1995 till 30th July, 1995. Thus, the importance of the
 report of the Chemical Analyst is completely whittled
 down by virtue of these facts.
 8. The learned Trial Court, therefore, according
 to me, was completely justified in acquitting the
 Respondents/Accused. The reason given by the learned
 Trial Court for acquittal of the Respondents/Accused is - 7 -
 not perverse and the view of the learned Trial Court is
 a possible view on the basis of the evidence on record.
 Coupled with the finding of the learned Trial Court, the
 discrepancies noticed by me above, amply justify the
 acquittal of the Respondents/Accused.
 9. In view of this, there is no substance in the
 Appeal and the same is dismissed.
 P. V. HARDAS, J.
 RD.
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