P.MANOHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner herein is the 2nd accused in C.C 404/1996 of the Judicial First Class Magistrate Court-II, Kannur. He challenges the conviction and sentence against him under Section 27(d) of the Drugs and Cosmetics Act r/w Rule 65(2) of the Rules framed thereunder. He along with the 1st accused, who is the licensee of the "Janaki Medicals" at Cheleri, Kannur, faced prosecution in the court below on the allegation that when the Drugs Inspector, Kannur visited the licensed premises of the 1st accused, he found some schedule"H" drugs kept there for sale without a qualified Pharmacist. The Drugs Inspector also found some date expired medicines there. All these medicines were seized by the Drugs Inspector as per a mahazar and on the basis of the seizure, the present prosecution was initiated against the licensee and the revision petitioner. The allegation as against the revision petitioner is that he was found at the premises, helping the licensee in the management of the store. Both the accused pleaded not guilty when the substance of the accusation was read over and explained by the learned Magistrate. Seven witnesses were examined in the trial court on the side of the complainant and twelve documents were proved. The MO1 to MO3 properties were also identified during trial.

(2.) On an appreciation of the evidence, the trial court found the 1st accused not guilty, but the 2nd accused was found guilty. On conviction, he was sentenced to undergo simple imprisonment for one year each, and to pay a fine of 1000/- each under Section 27(d) of the Drugs and Cosmetic Act for violation of the clauses (17) and (18) of the Rule 65 (2) of the Drugs and Cosmetic Rules. The 1st accused was acquitted by the trial court. Aggrieved by the judgment of conviction, the 2nd accused approached the Court of Session, Thalassery with Crl.A 344/1998. In appeal, the learned Sessions Judge confirmed the conviction, and accordingly dismissed the appeal. Now the 2nd accused is before this Court challenging the legality and propriety of the conviction and sentence against him.

(3.) Even according to the prosecution, the 1st accused is the licensee of the premises inspected by the Drugs Inspector. The 1st accused has no dispute on this aspect. The person punishable under Section 27(d) of the Drugs and Cosmetic Act, must be the person who actually sold or kept for sale some drugs or medicines including schedule "H" drugs in violation of the Drugs and Cosmetic Rules. Even according to the complainant in this case, the schedule "H" drugs and date expired drugs were found kept for sale at the licensed premises of the 1st accused. The evidence given by PW1, the Drugs Inspector is also that such drugs were found kept for sale at the licensed premises of the 1st accused. It is not known how the 1st accused happened to be acquitted by the trial court. If anybody is found keeping possession of drugs or medicines without authority, or in violation of the terms of the license granted to the licensee, the person liable for conviction and sentence must be the said licensee or the person who kept such drugs or possessed such drugs. No doubt, the penal liability in this case must be definitely that of the 1st accused as the licensee of the premises, but the 1st accused happened to be acquitted by the trial court. It appears that the complainant has not preferred appeal against the acquittal.