JAYANTHILAL DAVE Vs. STATE ASSISTANT DRUG CONTROLLER

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and sentence dated 01.12.2009 in Crl. A. No. 252/2008 passed by the Second Additional Sessions Judge at Mysore, convicting and sentencing the petitioner for the offence punishable under Section 7 of Essential Commodities Act, to undergo simple imprisonment for a period of three months and to pay fine of Rs. 2,000/ -, in default to pay fine, to undergo simple imprisonment for further period of one month. Petitioner was running a Pharmaceutical Stores under the name and style of M/s. Kailash Pharma at Bangalore. On the order placed by K.R. Hospital at Mysore, the petitioner supplied 30 vials of 10 m.l. each of Mephentermine for a price of Rs. 3,060/ - as per invoice at Ex. P.3 dated 05.12.1995. Later, K.R. Hospital at Mysore noticed that the petitioner collected excess amount than the prescribed rates on the vials. Accordingly, a notice was issued to the petitioner as to why action should not be taken against him. On receipt of the notice the petitioner refunded a sum of Rs. 1,960/ -, the excess amount received by him under a demand draft. Simultaneously, the hospital complained to the respondent Drugs Department. After investigation the Drugs Department filed a criminal case against the petitioner in C.C. No. 264/2003 for the offences punishable under Sections 7(1)(a)(ii) and 7 of Essential Commodities Act, 1995 and also under the provisions of Drugs (Price Control) Order 1995. After framing the charges the prosecution examined four witnesses as PWs. 1 to 4 and got marked Exs. P.1 to P.25 and MO. 1. On appreciation of the evidence on record, the trial Court vide its judgment dated 25.06.2008 in C.C. No. 264/2003 acquitted the petitioner. Aggrieved by this judgment of the trial Court the respondent filed an appeal in Crl. A. No. 252/2008 on the file of the lower Appellate Court.

(2.) AFTER hearing the arguments the lower Appellate Court framed the following observations for its consideration. Whether the prosecution has proved beyond reasonable doubts that; 1) The accused being the Proprietor of M/s. Kailash Pharma, Bangalore - 53 had supplied drug Mephentermine Injection batch No. 840, 842 charging excess amount than the price of the drug and therefore, has commuted offence punishable under section 7(1) (a) (ii) of the Essential Commodities Act and; 2) That when the Asst. Drug Controller, Bangalore Circle inspected the premises of the accused it was found that the accused had not maintained records of the purchase of the drugs and therefore, had violated para 20(3) of Drugs (Price Control) Order 19.95 punishable under section 7 of Essential Commodities Act?

(3.) HEARD arguments on both the side and perused the entire revision papers.