STATE OF MAHARASHTRA Vs. SAYYED MOHAMMAD SAYYED KAZIM

JUDGEMENT

(1.) THIS appeal is a companion appeal of Criminal Appeal No. 290 of 1985. The three respondents stood charged with having committed offences punishable under section 18 (c) read with section 27 (b) of the Drugs and Cosmetics Act. Accused No. 3 is a firm; Accused No. 1 is the proprietor and Accused No. 2 is the Manager of that firm. It is alleged that on 2-2-1977, a trap was arranged whereby a bogus customer was asked to purchase a tin of Vicks Vaborub from the accused which he did. The evidence is quite conclusive of the fact that the tin of Vicks was sold and that the liability of the Accused Nos. 1 to 3 for having dealt with this item without possessing a valid licence was also established. The learned Magistrate, however, took note of the fact that the firm did in fact possess a licence at an earlier point of time and that it was only a technical breach in so far as the licence stood in the name of the earlier proprietor and secondly, that the licence was not current at the time of the raid. The learned Magistrate has, undoubtedly, imposed a fine of Rs. 40/- and in default sentence of 7 days R. I. The learned A. P. P. vehemently submits that a strict view ought to have been taken of the facts of this case and that the minimum punishment prescribed by the section ought to have been imposed.

(2.) AS against this, the learned Counsel appearing on behalf of the respondents have submitted that a realistic view of the case will have to be taken in so far as the accused were not dealing with a drug in the true sense of the word but that it was an ointment which is commonly used for minor ailments. Secondly, the fact of the matter is that the predecessor of the accused had in fact obtained a licence and the offence, if any, can be said to be a technical one in so far as it had not been renewed. To this extent, therefore, a lenient view of the matter was rightly taken. However, I am in agreement with the submission advanced by the learned A. P. P. that even leniency is required to be exercised within reasonable limits and that the punishment awarded should not be so ridiculous so as to make a mockery of the law. To this extent, therefore, though a less than minimum punishment is justified, the order of the learned Magistrate would require variation.

(3.) THE conviction of the three accused is confirmed. The fine of Rs. 40/- is modified to a fine of Rs. 500/- each in default S. I. for one month. The accused have paid the fine of Rs. 40/- and they are granted a period of three weeks to pay the balance fine to the trial Court. On expiry of the period of three weeks, the bail bonds of the accused to stand cancelled.