STATE OF KARNATAKA Vs. LOBO MEDICALS

JUDGEMENT

(1.) This appeal is directed against the judgment and order of acquittal passed on 29-8-1977 by the II Additional Chief Judicial Magistrate, Mangalore, in C. C. No. 733/1975, on his file acquitting the accused-respondent for an offence punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955, read with paragraph 15 of the Drugs (Price Control) Order, 1970.

(2.) The appeal arises this way : Accused-1 is the firm running under the name and style, M/s. Lobo Medicals, Door No. 102, Ward No. 14, Hampankatta, Mangalore. It trades in drugs holding a valid licence, A-2 is the proprietor of the firm being a qualified person. On 3-10-1972 one of the Drug Inspectors, namely, S. Shantarama Shetty (P. W. 1), inspected the sales premises of Accused-1-firm and discovered that under cash bill No. 03279, dated 29-9-1972, the accused sold 6 x 3 M.L. Ampules of Neurobion Merck of batch No. 30271 and 27371 for Rs. 15/- plus the taxes and further that he had sold 3 x 20 tablets of Solerobion under cash bill No. 03325 dated 30-9-1972 for a sum of Rs. 22.05 plus taxes. On verification from the price-list displayed in the said premises, he found that the accused had collected Rs. 1.69 in excess for the Neurobion Merck ampules and a sum of Re. 0.60 in excess in respect of the Solerobion tablets sold under the above mentioned receipts. The Drugs Inspector reported the matter to the Drugs Controller and after following the required formalities, a complaint was instituted against accused alleging that by collecting excess price in respect of the above mentioned drugs, they committed an offence punishable under Section 3 (2) (c) of the Essential Commodities Act, 1955, read with para 15 of the Drugs (Price Control) Order, 1970, punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act.

(3.) Before framing charge, the learned Magistrate examined S. Shantarama Shetty (P. W. 1), the Drugs Inspector, M.S. Kustagi (P. W. 2) another Drugs Inspector and S. H. Anegundi (P. W. 3) who was also a Drugs Inspector. The learned Magistrate being satisfied that there was prima facie case against accused, on the evidence of these three witnesses, framed charge and recorded the plea of the accused so far as the sale of Solerobion tablets are concerned. Accused pleaded not guilty and claimed to be tried. Thereafter, the witnesses were cross- examined and the accused was examined under Section 313 of the Cr. P.C. to enable him to explain the circumstances appearing against him. The accused submitted that he collected the excess 0.44 P. through bona fide mistake and that he had written letters to the concerned customers to take refund of the same. So, according to him, there was no mens rea on his part to commit an offence. The learned Magistrate appreciating the evidence on record found that the accused did carry out the sale as alleged and affirmed by the prosecution witnesses and that he collected about 0.60 P. more by way of local taxes. But in his view, there was no mens rea on the part of the accused by his judgment and order referred to above. Aggrieved by the said order of acquittal, the State has come up in appeal before this Court.