S.C.MITAL, J. - (1.) PUSPINDER Kumar, who was convicted by the Chief Judicial Magistrate, Patiala, under section 18 (a) (vi) read with rules 65 (18) 65 (17) and 65 (4) (4) and 65 (5) (3) punishable under section 27(b) of the Act and sentenced to one year's rigorous imprisonment and fine of Rs. 2000/ - In default to further undergo rigorous imprisonment for three months. His appeal having been dismissed by the learned Sessions Judge, Patiala, he has preferred this revision petition.
(2.) BRIEF facts are that on 6th October, 1976, Drugs Inspector Gopal Singh (P.W. 1), accompanied by Dr. Bawa Ram Gupta (P.W. 2) and Harbans Singh, Superintendent, Dispensary, Rajindra Hospital (P.W. 3) went to the shop of Pushpinder Kumar, wherein he carries on business as a chemist under the name and style of the Punjabi Medical Stores, near the said hospital in Patiala. Upon checking 13 injections shown in Memo Exhibit P.A. of the expired date 31 injections belonging to the hospital and other medicines or which the appellant could not show the purchase record were taken into possession. According to the prosecution, he was thus liable for the commission of the above offences. At the trial, Pushpinder Kumar pleaded was not present at the time of the raid. He was called later and his signatures were obtained on the form XV1. Earlier also, two or three times his shop had been raided by the Drugs Inspector, but nothing incriminating was ever found. As some persons made false complaint about the integrity or the Drugs Inspector therefore, he in turn, to save his own skin implicated him (Pushpinder Kumar) in this case. Two witnesses were examined in defence. Strong reliance was placed by Mr. H.L. Sibal on the authoritative pronouncement of their Lordships of the Supreme Court in Mohd. Shahbir V. State of Maharashtra, A.I. R. 1979 SC 564, wherein it was laid down : "Thus before a person can be liable for prosecution or conviction under section 27 (a) (i) (ii) read with Section 18 (c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act." In support of his contention that believing the recovery of the medicines from the shop of the accused, it cannot be said beyond reasonable doubt that they had been stocked by the petitioner for sale. Reference in this regard was made to the relevant part of the evidence led by the prosecution. The Drugs Inspector as P.W. 1 clearly deposed that the shop in question consists of two rooms and the medicines in question were found lying in a card -board box in the rear room. In the normal course of business, argued the learned counsel, the medicines meant for sale are kept in the front room of the shop. The medicines in question, as is evident from recovery memo Exhibit P.A. are of seven different categories which were not meant for sale, were kept separately in a card -board box in the rear room. On the box, the liable given was "Not for sale." The following was elicited in the cross -examination of the Drugs Inspector : "The drugs were lying in a card board box in a loose condition. I do not remember whether the card board box in which the drugs Exhibits P.I. to P. 80 were lying, was bearing any slip on which it was written "Not for sale." The above -quoted facts argued the learned counsel, were enough to give the petitioner at least a reasonable benefit of doubt. In this case, the presumption that any medicine lying in the shop was intended to be sold, cannot be extended to the medicines in question. Reliance was placed on the ruling of the Allahabad High Court Aftab Ahmed v. The State, 1978 Cri. L. J. 1333, wherein the expired date medicines were separately kept in an almirah, which bore a clear indication to the effect that the same were not for sale. The learned Judge gave benefit of this material circumstance to the accused and acquitted him of the charge. Adverting to the facts of the case in hand, learned counsel for the petitioner pointed out that admittedly, it was only the Drugs Inspector who went inside the rear room and not the other two witnesses, namely Dr. Bawa Ram Gupta and Harbans Singh. As such as to the condition in which the medicines were kept in the rear room, the prosecution case rests on the solitary statement of the Drugs Inspector. For the foregoing reasons, I find that the prosecution has failed to prove beyond reasonable doubt the essential ingredient of the offence that the petitioner had stocked the medicines in question for sale. Firstly, as laid down by their Lordships of the Supreme Court, the said ingredient relates to commission of offence under section 17(a) (i) (ii) read with section 18(c) of -the Act. Secondly, this is also required to be proved for invoking rule 65 (17) and rule 65 (18) of the Drugs and Cosmetics Rules.
(3.) COMING now to the conviction of the petitioner under tuft 65 (4) (4) of the above -said rules, the requirement is preparation of the record of purchase of drugs intended for sale by the licensee. In the first place, since the prosecution has failed to prove beyond reasonable doubt that the medicines in question were intended for sale, therefore, the rule under consideration cannot be invoked. In the second place, there is nothing in the testimony of the Drugs Inspector that at the time of the raid, he asked for the records from the petitioner. Rather, his evidence is that on the following day, he sent notice Exhibit P.C. calling upon him to produce the record. In Exhibit P.C., the purchase record with regard to medicines at S. Nos. 2, 3 and 5 was sent for and no other. With respect to these medicines, Dr. Bawa Ram Gupta (P.W. 2) deposed in cross -examination that the accused showed the purchase record. The other witness Harbans Singh (P.W. 3) also admitted that the petitioner showed purchase record to the Drugs Inspector. For the foregoing reasons, conviction under rule 65(4) (4) of the above -said rules has no reasonable basis.;