Criminal Appeal No.249 of 1985. Case: State of Maharashtra Vs Jethmal Himatmal Jain. High Court of Bombay (India)
| Case Number | Criminal Appeal No.249 of 1985 |
| Counsel | For Appellant: D.T. Palekar, A.P.P., Advs. and For Respondents: C.S. Gosaliya (for No.1) and V.B. Ganatra (for No.2), Advs. |
| Judges | M. F. Saldanha, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 378(1), 378(4), 386; Drugs and Cosmetics Act (23 of 1940) - Section 32, 27; Evidence Act (1 of 1872) - Sections 115, 114(g); Indian Penal Code (45 of 1860) - Section 53 |
| Citation | 1994 CriLJ 2613 |
| Judgement Date | March 22, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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Cases involving racketeering in life saving drugs or trading in spurious medicinal preparations for that matter, require special consideration particularly where it is demonstrated that there has been a compromise in quality or adulteration of the Drugs. Many precious lives have been lost due to spurious preparations having been administered and it is a mater of little consequence whether the fault can be traced to the manufacturer, to the intermediary or to the dealer. These are crimes against humanity and the law must approach them with a degree of utmost firmness if the rackets are to be contained and snuffed out. Even at the risk of sounding ruthless, it will have to be stated that if a gradation of anti-social offences were to be done, this category would probably top the list.
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The situation becomes all the more distressful when it is disclosed that the offender is being shown sympathetic consideration by the very public authorities in whom the sacred task of safeguarding public safety is entrusted. Instances are not wanting where an unscrupulous trader even after having been booked, approaches the top authorities in the Government and they in turn agree to condone the lapse for reasons that are not difficult to understand. The conduct of such Government authorities in whitewashing grave crimes requires to be taken serious note of by the Courts because on the one hand it is completely demoralising to a point of total frustration for the Enforcement Officers who see the criminal go scot-fee because of the contacts at the higher level and more importantly because it is an assurance and an insurance to that and all other similarly placed criminals that such lucrative rackets are quite safe.
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In the instant case, the accused had boldly contended that he entered into an understanding with the Government that the cases filed against him by the Drugs Administration authorities for being found in possession and dealing with spurious and substandard drugs would be withdrawn if he agrees to surrender his licence after a particular date. Whether the licence was to be reissued in some other name is not very clear but the fact remains that such horse trading had not only taken place but has been boldly pleaded before the Court and the amazing plea put-forward in law was that since the accused abided by his part of the contract of the understanding, that the Government was estopped from proceeding with the prosecution and on the bar of promissory estoppel, the conviction ought to be set aside. What is even more unfortunate, is that the Appeal Court in this case has upheld the plea though it must be said with some degree of satisfaction that the Department has appealed against that order and brought the entire sordid episode to the notice of this Court.
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The proceeding is an old one having commenced in the year 1974 but that aspect is of little consequence because the issues involved are of such far reaching public importance that they require to be dealt with in all seriousness. Firstly, the facts:
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This appeal is directed against a judgement of the learned Additional Principal Judge (as then he was) of the Court of Session for Greater Bombay, which is dated 7th January, 1985. The present respondents who were the original accused Nos.1 and 2 in Criminal Case No.31/S/77 had been convicted by the learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay. Originally five accused had been charged with offences under Sections 65(18) read with 18 ( C) and 27, 18-A(ii) read with 27, 18-A( i) (ii) read with 27 Rule 65 read with Section 27 of the Drugs and Cosmetics Act. This Court had quashed the proceedings against the original accused Nos.3 to 5. The trial Court convicted accused Nos. 1 and 2 for the offences punishable under Section 27(a)( i), read with 18(a)(ii) of the Drugs and Cosmetics Act and sentenced them to one year's rigorous imprisonment and to pay a fine of Rs. 2000/- in default to undergo two months rigorous imprisonment. The trial Court further convicted accused Nos. 1 and 2 for the offence punishable under section 27(b) read with 65(iv) and 27(b) read with Rule 65(18) of the Drugs and Cosmetics Act and Rules and sentenced them to pay a fine of Rs. 500/- in default to undergo two months rigorous imprisonment on each count. The accused were acquitted of the charge under Section 18(a)(ii) read with Section 27 of Drugs and Cosmetics Act for possessing Garamycin vials alleged to have been misbranded or adulterated. As indicated earlier, in the Appeal filed before the Court of Session, the learned Judge after hearing the parties allowed the appeal and set aside the convictions. It is against this appellate judgement, that the present appeal has been preferred.
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The learned A.P.P. Mr. Palekar, has before setting out the facts of this case submitted that this case is one of immense public importance because it concerns two serious heads of mal-practices that are associated with the drugs trade. Firstly he submitted that the accused are alleged to have been parties to stocking and offering for sale adulterated drugs which are supposed to be used as life saving medicines and secondly that the case indicates that the drugs supplied for use in the E.S.I. Hospitals and physicians samples which are banned as not for sale, were found in a Chemist shop as the case were being traded in. He submitted that there has been serious miscarriage of justice, that the grounds on which the accused have been acquitted are not only strange but are shocking and that consequently the same are liable to be set aside. It is essential for the purpose of this appeal to first set out the material facts:
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On 23rd July, 1974 the Crime Branch (Control) Drugs, C.I.D., Bombay, arrested one Rajanikant Mehta and attached a huge stock of drugs illegally possessed by him. In the course of the investigation it transpired that Rajanikant had purchased most of the drugs from accused No.1 Jethmal Jain, Proprietor of M/s Maharashtra Medical Stores at Kalachowki, Bombay. A Police party alongwith Drugs Inspector R.W, Gudal and other Drugs Inspectors went to the shop M/s Maharashtra Medical Stores and searched the premises. At the time accused No.1 Jethmal was not available. Accused No.2 Mohanlal and the other accused Nos. 3 to 5 who have been discharged were present in the premises. It is alleged that accused No.2 Mohanlal was the Manager of that shop. In the course of the search some drugs bearing the marking of E.S.I.S. and "Physicians sample not to be sold" were found. The Drugs Inspector Gudal drew the samples of Garamycin U.S.P. Batch No. IN-3-AMK2 19 manufactured by M/s C.E. Fulford (India) Pvt. Ltd. (ii) Tetracycline Hydrochloride Capsules Batch No.108 manufactured by M/s Alkmo Laboratories, Bhandup, Bombay and (iii) Tetracycline Hydrochloride Capsules I.P. Batch No. 506 manufactured by M/s Ravi Pharmaceuticals, Daman. The necessary information in Form No.17 was given to accused No.2 who was present in the shop. The Police party, Panchas and Drugs Inspectors then went to the house of accused No.1 i.e. the Form No.19, 86-H, Bawaliwadi, Dr.B.A. Road, Bombay-12, and seized under panchanama different drugs such as Capsules, packed in unlabelled plastic packets and some vials bearing the marking as "Physician's sample not to be sold". Samples were drawn in the presence of the wife of accused No.1. These seizures formed the subject-matter of a separate prosecution with which we are not immediately concerned.
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The accused No. 1 later on surrendered to the Police and he gave information about the sources of his purchasing these drugs. Those persons could not be traced. In respect of the Drugs bearing E.S.I.S. marking, the accused stated that he was an approved Chemist under the E.S.I. Scheme to keep for sale drugs bearing the E.S.I. Marking.
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The samples in question were sent to the Government Analyst, Bombay, for testing. It was found that the sample part of Garamycin was not of the standard quality, where as the sample of Garamycin taken from the manufacturer was of the standard quality. The sample parts of Tetracycline Hydrochloride Batch No. 108, manufactured by M/s Alkamo Laboratories was also found not to be of standard quality and was not containing any Tetracycline Hydrochloride. Moreover, further inquiry revealed that there was no company by name M/s Alkemo Laboratories, Bombay and the manufacturing licence No. 417 put on the labels was false. The other Tetracycline Hydrochloride capsules Batch No. 506 manufactured by Ravi Pharmaceuticals were found to be of standard quality. Accused No.2 who was present in the shop had failed to produce the record of purchase of different drugs kept for sale in that shop.
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The defence of the accused is basically of one of denial. Accused No.1 contends that he was not present in the shop at the time of the raid, and it is his case that he has not committed any offence whatsoever.
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Accused No.2 admits that he was present in the shop at the time of the raid but he maintains that he is a relation of accused No.1 and that he had visited the shop for the purposes of seeing his relation. He has nothing to do with the conduct of the business or with the shop and he denies that he was the Manager of the shop at the relevant time. He has disputed the prosecution case that the Drugs Inspector has seized the various items from the shop in question. He contends that they had brought the tin containing these drugs from outside and that they had forcibly obtained his signatures on various documents on that day. The learned trial Judge rejected the defence of the accused and convicted them as indicated earlier. Subsequently, however, on appeal these convictions came to be set aside.
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As indicated earlier, the accused preferred a Criminal Appeal to the Court of Session, being Criminal Appeal No.137 of 1983, which came to be disposed of by judgement dated 7-1-1985. The Appeal Court...
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