GANGTOK, India, June 5 -- Sikkim High Court issued the following judgment/order on may 21:
1. The Petitioner has filed the instant application under Section 378(3) of the Code of Criminal Procedure, 1973, seeking leave to file Appeal, to assail the Judgment, dated 31-05-2022, of the Court of the Learned Special Judge (Drugs and Cosmetics Act, 1940), Gangtok, in Sessions Trial (D&C Act, 1940) Case No.01 of 2018 (Union of India vs. M/s. Mukul Enterprises and Another), which acquitted the Respondent No.2.
2. Learned Deputy Solicitor General of India submits that, leave may be granted to the Petitioner to file the Appeal as the Learned Trial Court failed to appreciate the legal position of the present case, which fell under Chapter IV of the Drugs and Cosmetics Act, 1940 (for short, "DC Act") wherein Sanction for prosecution is not mandatory. Learned Deputy Solicitor General added that the Learned Trial Court also did not consider the admission of the Accused Respondent No.2 herein, that he had supplied rolled bandages, with batch no.014 to the Complainant and overlooked the forensic report that had concluded that, the bandages, the articles in question in the Complaint, were spurious and of substandard quality. The Learned Trial Court was of the view that independent witnesses were required at the time of lifting samples, which is clearly not the demand of the Statute, apart from which the Trial Court failed to consider that the Drug Inspector has powers and duties to conduct regular sampling of at least ten articles/medicines in a month when he considers the articles to be suspicious. The Learned Trial Court ignored the evidence furnished by the Appellant and concluded that the Prosecution had failed to prove its case and thereby acquitted the Appellant No.2. That, the interest of justice would be served if the leave to Appeal is granted.
3. Per contra, it was argued by Learned Counsel for the Respondents that requisite procedure prescribed by the Statute was not followed by the Prosecution (the Petitioner herein) and the various provisions, as pointed out by the Learned Trial Court, in the impugned Judgment, including Section 22(cc) & (cca) and Section 22(2) of the DC Act were not complied with. Granting leave to Appeal would be to the detriment of the Respondents as no materials for Prosecution have been furnished by the Petitioners.
4. We have heard the Learned Counsel for the parties in extenso. We have also perused the impugned Judgment.
5. The Trial Court in the impugned Judgment framed the following question for determination; (a) That, M/s. Mukul Enterprises (A1) under the proprietorship and control of accused Md. Mohdul Islam (A2) had sold spurious drugs, i.e., rolled bandages above, purportedly manufactured by a fictitious Company.
6. The Learned Trial Court examined the evidence of six witnesses examined by the Complainant/Appellant herein, before the Court and noted that owing to certain procedural irregularities and non-compliance with the mandatory provisions of the DC Act, the case is liable to fail. The Court noted that, it was the case of the Complainant that the rolled bandages had been lifted from the medical store of the Central Health Store Organisation (CHSO), Health Department, where admittedly no Stock Register or Inventory Register or any document showing that the said items was stored in the said place were produced before the Court. CW5 and CW2 admitted as much. It was further observed that no independent witnesses were joined while conducting the search, followed by the seizure of the alleged spurious rolled bandages. The procedure prescribed under Section 23 of the DC Act was also not complied with which required the Inspector to show that one portion of the samples was sent to the alleged retailer/supplier, i.e., the Accused, as mandated by Section 23(4)(ii) and (iii) of the DC Act. Further, one portion of the concerned samples which was required to be forwarded to the Court was deposited before the Court of the Learned Chief Judicial Magistrate only at the time of filing of the Complaint and not immediately after the seizure of the samples as mandated by Statute. This was admitted by the Complainant himself with no explanation for the delay. Neither CW-5 nor the Complainant CW-4 had supplied a copy of the report of the Government Analyst to the Accused (A2), which seriously violated the right of the Accused to obtain a re-test of the sample within a reasonable time. That, Section 25(2) of the DC Act mandates that a copy of the report of the Government Analyst must be made available to the Accused. Non-supply of the report has proved fatal to the Complainants case and prejudiced the Accused. The Learned Trial Court went on to hold that no evidence indicated the conditions of storage of the rolled bandages in the CHSO while the Complainant or CW-5 failed to shed light on this aspect. Besides the above infirmities, it was noticed that the batch number of the rolled bandages was originally seen to have been printed as 102 with manufacturing date 07/2014 and expiry date 06/2017. However, this has been scored out and the number 014 written alongside in hand. CW-6 admitted as much. No counter-signature appeared against such overwriting. The possibility of the overwriting having been done in order that the batch number matched the one in the Complaint could not be ruled out. Hence, the acquittal of the Respondent No.2.
The rest of the document can be viewed at https://hcs.gov.in/hcs/hg_orders/203200000032024_21.pdf
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