BHARAT PRASAD GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Leave granted.

(2.) 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 in charge 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 instrument 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 (sic) 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') read with 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 Bench 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.

(3.) 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.