Sr. No. 15 v. Mohammad Ashraf Shah & Anr.

medicines from Srinagar and also from other Distributors. He also says that A2 has no shop of his own in Arhama. This witness also reveals that there is a dispute between the two Fair Price Medical Shops, one run by the Cooperative and the other of A1 and to that effect a civil case is sub judice before the court of the Sub-Judge. He further states that the Hospital Authorities are interested in running of one Fair Price Shop under the control of A1 and not the Fair Price Shop run by the Cooperative.

12. Thereafter, the learned Trial Court has considered the conflicting views of the complainant and the accused. The Trial Court has referred to the statement of P.W.1 and found that PW1 is not certain if the Drugs that were produced before the court were in the possession of Drug Inspector (PW2) CrlA (AS) No. 5/2019 Page 5 of 9 and has also stated that he has not signed any seizure memo while, the perusal of the same reflects that the witness had put his signature upon the seizure memo. The court has also taken cognizance of the fact that it was only upon disclosure made by A2 that the identity of A1 as the owner of the shop became known to PW1 and PW2. Thereafter, the court arrives at the finding that the witness has not put any personal effort for tracing the owner of the shop and has relied only of the statement of A2.

13. Thereafter, the learned Trial Court refers to the statement of PW2, who is the complainant in this case, where he says that in the first instance A1 was present on the spot but changes the version in cross examination by saying that A1 was not present at the shop but it was only A2 who was present. Further the Trial Court observed that PW2 states that sanction has been obtained against both the accused persons. On the file the sanction has only been obtained against A1, but not against A2. Thereafter, the Trial Court has questioned the case of the complainant as to how A2 has been arrayed as accused when no sanction was taken to prosecute him. Upon this, the Trial Court has arrived at the finding that there was a vengeful attitude on the part of the complainant to implicate A1. Thereafter, the learned Trial Court relies upon the statement of this witness that he has not put signatures on the seizure memo but has only put his seal which according to learned Trial Court has rendered the seizure memo doubtful.

14. The learned Court below also arrives at the finding that the PW2 has no documentary proof that Mohd Ashraf Shah-A1 is the proprietor of Tabish Medical Store, Arhama and, thereafter, poses a question to itself as to how the witness has come to the conclusion that A1 is the proprietor of Tabish Medical Store. CrlA (AS) No. 5/2019 Page 6 of 9

15. Learned counsel for the appellant-Union Territory, has submitted that the learned Trial Court fell into error in acquitting A1 & A2 in this case. He further submits that the complainant has succeeded in proving his case against the accused persons beyond reasonable doubt. He further argues that Tabish Medical Store was never registered and, therefore, was not on the record of the Department. He further submits that A2 had informed the Drug Inspector that the shop belongs to A1. Learned counsel further submits that as the genesis of the case is based upon the complaint filed by the Drug Inspector, Section 25 of the Evidence Act would not apply and the confession made by the A2 to PW1 could be used against him and A1. He further states that the same would also be a sufficient evidence to show that A1 was the proprietor of the shop.

16. Learned counsel for the appellant-Union Territory further contended that the seizure of the bills which are in the name of Tabish Medical Store also go to establish beyond a reasonable doubt that A1 & A2 had purchased theses medicines from the stockiest/Distributors for the purpose of retail sale. As regards the absence of the statement of any independent purchaser from the shop or others from the locality, learned counsel for the Union Territory submits that same was never essential. He further submits that as stated by PW2 in the court testimony, no one came forward voluntarily to give a statement to PW2. Further he has stated that it is trite law that it is not the number of witnesses that are required to prove the case of the prosecution but whether the statements recorded, by themselves, inspire of confidence of the court for the purpose of convicting the accused, which in this particular case, according to the learned counsel for the appellant-UT, has been proved.

17. The contentions put forth by the learned counsel for the appellant-UT have been considered by this Court. CrlA (AS) No. 5/2019 Page 7 of 9

18. As regards the question of ownership of the shop, this Court is in agreement with the finding of the learned Trial Court that the complainant has not been able to prove the ownership of the shop. Reliance cannot be placed on the statement allegedly given by the A2 as the same was never reduced into writing and neither was it a confession. This is moreso, as at the time when the said information was allegedly given by the A2 to PW2, A2 was not an accused in the case. The statement of an accused made before he is arrayed as an accused, cannot be taken as a confession especially, if he is not warned before he makes the said statement that the same could be used against him to prosecute and convict him and if thereafter, there is a conscious waiver of the right against self-incrimination by the said witness, his statement may be used against him. None of that has happened in this particular case.

19. The ownership of the shop has not been proved. Merely because Drugs were seized from the said shop and the statement of A2 that the shop was owned by A1 is inadequate. It would have been quite another case if the complainant had investigated/inquired from the manufactures of the Drugs which were seized as to whom they have sold the medicines of the batch number noted on the medicines. PW2 could have traced the purchaser of the medicines and the person who has made the payment to the Drug Company for the sale. None of that was done.

20. The statement of the defence witnesses to the effect that the prosecution of A1 was on account of the fact that he was running the Fair Price Shop inside the Hospital at Shopian, where another Fair Price Shop by a Cooperative Society was also functioning; that there was bad blood between the Fair Price Shop run by the Cooperative Society and that of the A1. The complainant has not cross examined these witnesses in order to shake that statement with regard to previous enmity and neither has a suggestion been CrlA (AS) No. 5/2019 Page 8 of 9 given to the defence witnesses, that the same is untrue. The defence witnesses have also stated that PW2 was anxious that the Fair Price Shop run by the Cooperative Society functioning must be the only one functioning from within the Hospital at Shopian and not that of A1. Here again, nothing has been brought out in cross examination or suggestion given that the statement is incorrect.

21. Under the circumstances, in view what has been argued and considered by this Court and also upon the perusal of the records of the case, this Court is unable to find any perversity or illegality in the order passed by the Trial Court and view taken by it is probable and reasonable.

22. In view of above, the appeal is dismissed. SRINAGAR: 10.10.2023 ARIF (ATUL SREEDHARAN) JUDGE Whether approved for reporting? Yes/No CrlA (AS) No. 5/2019 Page 9 of 9