High Court

Legal Reasoning

999-revn-445-2004 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 445 OF 2004Uday S/o Madhavrao Chandratre,Age :- 44 years, Occu. Business,R/o. Shivshakti Colony, DhuleTq. & Dist. Dhule....ApplicantVERSUS1. The State of Maharashtra, copy to be served on Public, Prosecutor in the High Court of Judicature of Bombay Bench At Aurangabad.2. Assistant Commissioner, Food And Drugs Administration, Champa Bag, Sakri Road, Dhule, Tal and Dist. Dhule, through Public Prosecutors, High Court of Judicature of Bombay Bench at Aurangabad....Respondents...Advocate for Petitioner : Mr. C.C. Deshpande h/f Mr. C.R. DeshpandeAPP for Respondents/State : Ms. M.N. Ghanekar... CORAM : S.G. MEHARE, J. DATED : AUGUST 13, 2024ORAL JUDGMENT :-1.Heard learned counsel for the applicant and learned APPfor the State.2.The applicant/accused has impugned the judgment andorder of the Chief Judicial Magistrate, Dhule in R.C.C. No.472/1994dated 21.07.1999 as well as the order of the 2nd Additional SessionsJudge, Dhule in Criminal Appeal No.30/1999 dated 06.11.2004. 999-revn-445-2004 judg.odt(2)3. The applicant was charged for the offences punishableunder Sections 33 EEC (a) and 33 EEC (c) punishable under Sections33 I (1) (a)(ii) and 33 I (1) (b) of the Drugs and Cosmetics Act, 1940.4.It was alleged against the applicant that the applicantwas manufacturing spurious ‘Gulvel Satva’. He was running thepharmaceutical firm under the name M/s. Satpuda Pharmaceuticals.He had appointed the authorized agents for his product. The DrugInspector visited one Madhura Agency and found the bottlescontaining medicine without any label, and other requisite details.When the inquiry was made, it was learnt that the applicant wasmanufacturing that medicine. The seized product was sent to theChemical Analyzer. The Chemical Analyzer submitted the report thatthe substance was spurious and substandard. The applicant addresseda letter Exhibit-28 to the authority admitting that the seized medicinewas manufactured in his company.5.Both Courts, appreciating the evidence, believed that theseized medicine ‘Gulvel Satva’ was manufactured in thepharmaceutical company run by the applicant, namely M/s. SatpudaPharmaceuticals. Holding the accused guilty, the learned ChiefJudicial Magistrate sentenced him to suffer R.I. for one year and afine of Rs.2000/- for the offence punishable under Section 33 I (1)(a)(ii) of the Drugs and Cosmetics Act and sentenced to suffer R.I. forthree years and fine of Rs.5000/- for the offence punishable under 999-revn-445-2004 judg.odt(3)Section 33 I (1)(b) of the Drugs and Cosmetics Act. The learned IIndAdditional Sessions Judge, Dhule dismissed his appeal andmaintained the conviction and sentence.6.Learned counsel for the applicant has vehemently arguedthat the document Exhibit-28 was relied upon by the prosecution.However, no opportunity was granted to the applicant to explain it byway of a question to the accused under Section 313 of the CriminalProcedure Code. He vehemently argued that when the authoritiesvisited the manufacturing unit, there was no stock or manufacturingprocess of the so-called ‘Gulvel Satva’. The medicine ‘Gulvel Satva’was not spurious. He has pressed into service that since the materialevidence/ circumstance was not brought to the notice of the applicantunder Section 313 of the Criminal Procedure Code the entire trial wasvitiated. In the alternative, he prayed that Section 33 of the Drugs andCosmetics Act provides for passing the order less than one year forspecial reasons. He would argue that the Court, by way of adequateand special reasons, may impose a sentence of imprisonment for aterm less than one year and a fine less than Rs.50,000/- or threetimes whatever is more. In alternative, he prayed for extending thebenefit of the Probation of Offenders Act. To bolster his argument, herelied on a few case laws that would be referred in later part of thejudgment. 999-revn-445-2004 judg.odt(4)7.Learned APP has strongly opposed the application. Shewould submit that the letter Exhibit-28 was never impugned. It wasan admission letter of the applicant that the so-called product seizedwas manufactured in his factory. Since it was admitted to theaccused, no such question was required to be asked to him underSection 313 of the Criminal Procedure Code. After seizing themanufacturing product from the medical shop, time was spent. So,probably in the meantime, the applicant might have stoppedmanufacturing ‘Gulvel Satwa’. There were no substantial grounds towarrant or interfere with the impugned judgment and order. There isno adequate or special reason to impose a penalty less than one yearwhich was minimum punishment for the offence punishable underSection 33 EE (A) of the Drugs and Cosmetics Act. She would submitthat the case laws relied upon by the applicant could not be applied asthose are on different facts. She has vehement arguments that in nocase to exercise the discretion to impose a sentence of less than oneyear. Since the question, as alleged was not put to him under Section313 of the Criminal Procedure Code, the proceeding is not vitiated.8.Perusal of document Exhibit-28 reveals that it was a letteraddressed to the authority by the applicant. It was an explanation ofthe chemical analysis report. The applicant has expressly admittedthat the seized medicines were manufactured in his company. It wasan admission of the offence. 999-revn-445-2004 judg.odt(5)9.Section 313 of the Criminal Procedure Code provides forthe power to examine the accused. To enable the accused personally,the Court should explain the circumstances appearing in the evidenceagainst the accused. His statement under Section 313 may berecorded at any stage without previously warning the accused byputting the question to him or after the prosecution witnesses havebeen examined. It is a settled principle of law that the circumstanceswhich, according to the prosecution, lead to prove the guilt of theaccused must be put to him in his examination of the accused underSection 313. The purpose of examining the accused is to enable himpersonally to explain the circumstances appearing in the evidenceagainst him. The accused also has right to examine the defencewitness. In the absence of admission of the accused when theprosecution led the evidence of prove of guilt, such incriminatingquestion should not be excluded from Section 313 statement.Reading the object of Section 313 of the Criminal Procedure Code,this Court is of the view that the admission is the best evidenceagainst the accused. Since the document Exhibit-28 shows theadmission of manufacturing of the ‘Gulvel Satva’ with chemicalanalysis report as it was spurious, the prosecution need not prove it. Itwas an explanatory document. The applicant was well aware of thestatement he made in Exhibit-28. Since the facts were admitted, theprosecution was not required to prove it. The admission was within 999-revn-445-2004 judg.odt(6)the knowledge of the applicant. Therefore, mere non-asking thequestion of those facts under Section 313, would not vitiate theproceeding. 10.Learned counsel for the applicant relied on the judgmentof the Hon’ble Supreme Court in the case of Naresh Kumar Vs. Stateof Delhi, Criminal Appeal No.1751 of 2017 dated 08.07.2024. TheCourt has discussed the object of Section 313 of the CriminalProcedure Code. The law is also well settled that meredefective/improper examination under Section 313 of the CriminalProcedure Code would be no ground to set aside the conviction of theaccused unless it has resulted in prejudice to the accused. Based uponthe fact discussing with Section 313 of the Criminal Procedure Code,the Hon’ble Supreme Court held in para 15 that ‘a bare perusal of theprovisions under Section 313, Cr.PC, extracted above, wouldundoubtedly reveal the irrecusable obligation coupled with duty onCourt concerned to put the incriminating circumstances appearing inthe prosecution evidence against accused concerned facing the trialproviding him an opportunity to explain.’Here, the facts of the caseare different. Hence, the said judgment would not assist the applicant.11.Learned counsel for the applicant argued that soon afterthe incident, the applicant had closed down the manufacturing. He isnow 66. His wife is suffering from cancer. It was a solitary incident.Therefore, the benefit of the Probation of Offenders Act may be 999-revn-445-2004 judg.odt(7)extended to him. He further argued that there were circumstances toreduce the sentence below one year, which is a minimum conviction. 12.To bolster the case of benefit of the Probation ofOffenders Act, he relied on the judgment of the Hon’ble SupremeCourt in the case of Umrao Singh Vs. State of Haryana, CriminalAppeal No.404 of 1981 (Arising out of S.L.P. (Cri.) No.965 of 1981)dated 10.04.1981, Tarak Nath Kesari Vs. State of West Bengal,Criminal Appeal No.1444 of 2023 (Arising out of SLP (Cri) DNo.28476 of 2018) dated 10.05.2023. In this case, the Hon’bleSupreme Court held that even if there is a minimum sentenceprovided in Section 7 of the Essential Commodities Act, in ouropinion, the appellant is entitled to the benefit of probation, the ECAct, being of the year 1955 and the Probation of Offenders Act, 1958being later. Even if a minimum sentence is provided in the EC Act,1955, the same will not be a hurdle for invoking the applicability ofprovisions of the Probation of Offenders Act, 1958. The Hon’bleSupreme Court referred to the case of Lakhvir Singh Vs. The State ofPunjab and Ors, (2021) 3 SCC 763. He further relied on the judgmentof the High Court of Goa in the case of State of Goa Vs. ShriLaxmikant N. Vaidya, Criminal Appeal No.64 of 2003 dated 27 th August/2 nd September, 2004 . It was a case under the Drugs andCosmetics Act, 1940. Bearing in mind the facts of the case, the Courtheld that the accused was entitled to the benefit of Section 4 of the 999-revn-445-2004 judg.odt(8)Probation of Offenders Act. He also relied on the case of IndrakunwarVs. The State of Chattisgarh, 2023 LiveLaw (SC) 932. The applicantas argued before the Court has undergone one year S.I. and fine. Thefine amount has been deposited. 13.The Hon’ble Supreme Court in Umrao Singh (Supra)observed that the High Court itself felt bound to award the minimumsentence but on merits, was satisfied that if the legal positionwarranted, the appellant could be given a lesser sentence. We, are inagreement with the view of the High Court. The appellant/petitioneris aged about 70, and suffering from asthama illness and has a cleanpast record. Considering the percentage of deficiency, the Hon’bleSupreme Court reduced the sentence of the period alreadyundergone. There are two verdicts. One is on reducing the sentence,and another is on extending the benefit of the Probation of OffendersAct. In view of the ratio laid down in the case of Tarak Nath Keshari(supra), there is no impediment exercising the powers under theProbation of Offenders Act, though minimum sentence has beenprovided in the Act. The age factor has been considered in the case.The post-incident conduct of the accused is also one of the groundsfor thinking about the benefit of the Probation of Offenders Act. Theanother fact that may be considered is non-involvement of theaccused for the same offence after the crime was registered againsthim. 999-revn-445-2004 judg.odt(9)14.Considering the age, closing down the business and nobad past of the applicant, though the learned APP is insisting onreducing the sentence instead of granting Probation of Offenders Act,the Court is of the view that the view of the Hon’ble Supreme Court inthe case of Tarak Nath Keshari (supra) could be appropriately applied.She is right in pointing out that both Courts did not err in law inholding the accused guilty. Hence, the following order :O R D E R(i)Criminal Revision Application is partly allowed.(ii)The judgment and order of the Chief Judicial Magistrate,Dhule, in R.C.C. No.472/1994 dated 21.07.1999 as wellas the order of the 2nd Additional Sessions Judge, Dhulein Criminal Appeal No.30/1999 dated 06.11.2004 standmaintained. However, instead of sentencing him at onceto the punishment, it is expedient to release him onprobation of good conduct.(iii)The applicant be released on executing the bond for oneyear of Rs.10,000/- (ten thousand only) with anundertaking to appear and receive the sentence whencalled upon during the said period, and in the meantime,he should keep peace and good behaviour.(iv)The fine amount, if any, deposited be returned to theapplicant. 999-revn-445-2004 judg.odt(10)(v)Record and proceeding be returned to the learned TrialCourt.(vi)Rule is made partly absolute in the above terms. (S.G. MEHARE, J.)Mujaheed//