STATE OF GUJARAT Vs. VINAY VITHALDAS SHAH

JUDGEMENT

(1.) Breathes there a man who would not become a cynic on being apprised of the sentence imposed in the two allied case giving rise to the twin appeals preferred by the State for enhancement of the sentence of one days (heavens be praised that a Court cannot impose substantive sentence of less then a day) S. I. for selling innocuous salts under the label of Tetracycline ? One must possess nerves of steel not to become a cynic when virtually a licence to kill is issued on payment of a paltry fine for one way of killing is to create an illusion that the disease is being curbed and cured by annihilating the becteria when the becteria are allowed to become more and more vigorous without slightest resistance. What else will happen when innocuous salts are administered instead of anit-biotics? And what follows will prove the oft quoted cliche : truth is stranger than fiction.

(2.) A Science Graduate who was employed as a qualified person within the meaning of Rule 65 of the Drugs and Cosmetics Rules 1945 (Rules) sold and distributed 4300 capsules purporting to be Tetracycline capsules on his own to a firm of Chemists and Druggists at Ahmedabad and was trapped in view of the prior written information conveyed by the purchaser firm. The capsules were seized from his possession and were sent for analysis to the Government Analyst of the Drugs Laboratory at Baroda. His report indicated that the stuff which was packed in the capsules was not Tetracycline at all. The report established that the potency of the contents of the capsules was Nil. The contents when analysed indicated the presence of (i) sodium bicarbonate (ii) sodium chloride and (iii) colouring matter which had no therapeutic value or properties ascribable to a high potency anti-biotic like Tetracycline a drug which it is well-known is a life saving drug widely prescribed and used by the medical profession. The respondent Vinay Vithaldas Shah was prosecuted for offences under secs. 18(i)(ii) 18 (a) (ii-a) and sec. 18(c) read with sec. 27 of the Drugs and Cosmetics Act 1940 (hereafter referred to as the Drugs Act) in Criminal Cases Nos. 1221 of 1974 and 1220 of 1974 in the Court of the Metropolitan Magistrate 3 Court Ahmedabad and after recording the evidence of P. W. I Raval Senior Drugs Inspector a charge was framed against the respondent for the aforesaid offences. The respo- ndent pleaded guilty to the charge. He stated that he had procured the capsules from one Babubhai and that he had supplied the capsules to Jagdipbhai of Harikrishna Medical Agencies. He prayed for mercy on the ground that he had a family to maintain and it was his first offence. He also stated that he had lost his employment on account of the prosecution. The learned trial Magistrate accepted his plea of guilty and convicted the respondent for offences under secs. 18(a)(ii) 18 18 read with sec. 27 and sec. 27(b) of the Drugs and Cosmetics Act. He imposed a token sentence of simple imprisonment for a day for the offence under secs. 18(a)(ii) and 18(a)(ii)(ii-a) read with sec. 27(a) (i). He also sentenced him to pay a fine of Rs. 750.00 and in lieu thereof to suffer rigorous imprisonment for three months. For the offence under sec. 18(c) read with sec. 27(a)(ii) only a sentence of fine Rs. 750.00was imposed. So also for the offence under sec. 18(a) (i) read with sec. 27 (b) a sentence of mere fine of Rs. 750.00 was imposed. In effect therefore the respondent was sentenced to suffer imprisonment till the rising of the Court and to pay a total fine of Rs. 2 250 The State of Gujarat has preferred the present two appeals and has contended that the sentence imposed by the concerned trial Magistrate is unduly lenient and requires to be enhanced.

(3.) The learned Public Prosecutor has called my attention to the provision embodied in sec. 27 of the Drugs Act which enjoins that any person who is found guilty of selling or stocking for sale or distribution any drug which is misbranded under clause (a) clause (b) clause (c) clause (d) clause (f) or clause (g) of sec. 17 or adulterated under sec. 17B or any drug without a valid licence as required under clause (c) of sec. 18 shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine. The proviso to sec. 27 empowers the Court for any special reasons to be recorded in writing to impose a sentence of imp- risonment of less than one year. The learned Public Prosecutor argued that notwithstanding the mandatory provision embodied in sec. 27 the learned trial Magistrate has imposed a sentence of less than the minimum term of one year prescribed by sec. 27(a) (ii) and has imposed a ridicu- lously low sentence of imprisonment for one day coupled with a fine of Rs. 750.00. It is argued that even otherwise having regard to the nature of the offence the learned trial Magistrate ought to have awarded a substantive sentence which is sufficiently deterrent to the offender who was found guilty as also to others who are like-minded.