# Prem Pal (In Jail) v. State of U.P. & Anr

- **Citation:** Criminal Appeal No. 175 of 1992
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-14
- **Case number:** Criminal Appeal No. 175 of 1992
- **Bench:** Pankaj Naqvi, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-pal-in-jail-v-state-of-u-p-anr-46185
- **Pages:** 6

## Headnote

Criminal law- Drugs and Cosmetics Act (23
of 1940)- Section18, S.19(3)(b) - Sale of
adulterous drug - Benefit of defence -
Once a retailer / seller - establish that he
bought the drug / cosmetic from a
licensed manufacturer or distributor &
stored them properly - then the retailer /
seller has only to exercise reasonable
diligence as expected from an ordinary
person indulging in that particular trade -
However where the drug appears to be
misbranded / sub-standard to even a
naked eye then it may afford no protection
to the retailer / seller that he purchased
the drug / cosmetic from a licensed
manufacturer and had stored it properly
(Para 13)

Accused - Appellant, a retailer established that
he acquired the drug from a duly licensed
manufacturer
-
and
he
could
not
with
reasonable diligence, have ascertained that the
drug in question, contravened S. 18 - he is
entitled to the defence u/s 19(3) of the Act - no
evidence that the accused appellant had any
knowledge that the drug in question was
adulterated - appellant discontinued the sale of
the drug the moment he came to know of the
drug being spurious after receipt of the test
report - conviction u/s Section 275 IPC illegal -
Conviction set aside

Appeal allowed (E-5)

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)03-05ILR A98
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 175 of 1992

Prem Pal ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri
S.S.
Sharma,
Sri
Sanjay
Kumar
Chaurasia, Sri Shah Om Prakash Agarwal

Counsel for the Respondents:
A.G.A.

Criminal law- Drugs and Cosmetics Act (23
of 1940)- Section18, S.19(3)(b) - Sale of
adulterous drug - Benefit of defence -
Once a retailer / seller - establish that he
bought the drug / cosmetic from a
licensed manufacturer or distributor &
stored them properly - then the retailer /
seller has only to exercise reasonable
diligence as expected from an ordinary
person indulging in that particular trade -
However where the drug appears to be
misbranded / sub-standard to even a
naked eye then it may afford no protection
to the retailer / seller that he purchased
the drug / cosmetic from a licensed
manufacturer and had stored it properly
(Para 13)

Accused - Appellant, a retailer established that
he acquired the drug from a duly licensed
manufacturer
-
and
he
could
not
with
reasonable diligence, have ascertained that the
drug in question, contravened S. 18 - he is
entitled to the defence u/s 19(3) of the Act - no
evidence that the accused appellant had any
knowledge that the drug in question was
adulterated - appellant discontinued the sale of
the drug the moment he came to know of the
drug being spurious after receipt of the test
report - conviction u/s Section 275 IPC illegal -
Conviction set aside

Appeal allowed (E-5)

(Delivered by Hon'ble Pankaj Naqvi, J.)

This criminal appeal is preferred
against the judgment and order dated
21.1.1992 passed by VIth Additional
Sessions Judge, Aligarh in S.T. No. 78 of
1991 (State Vs. Prem Pal Varshney)
convicting/ sentencing the appellant under
Section 275 IPC/Section 27 of Drugs and
Cosmetics Act, 1940 to life with fine of
Rs.1 lac and a default sentence of 5 years
R.I.

(a) PW-1, a Drug Inspector on
12.5.1982 inspected the shop of the
appellant, namely M/s National Medical
Store, wherein he purchased 5 tables of
DEXAMETHASONE (Batch No.38 D/M
May 81) vide Cash Memo (Ex.Ka 1), for
the purpose of sample/ test survey. PW-1
sent the said sample to Central Drug
Laboratory, Calcutta (hereinafter referred to
C.D.L.),
where
it
was
received
on
14.05.1982. The C.D.L. submitted the test
report dated 04.06.82 (Ex.Ka 4) disclosing
the sample as spurious and that it did not
contain DEXAMETHASONE.

(b) PW-1 on 26.6.1982, again
inspected the shop of the appellant and
purchased vide a cash memo (Exbt Ka-5)
47 tablets of DEXAMETHASONE (Batch
No. 38D/M May 81). Out of 47 tablets,
PW-1 prepared 4 samples, i.e, 20+9+9+9
and got them sealed in the presence of
appellant, duly signed by both of them,
appellant was intimated of the same on
Form 17 of the same date. PW-1 sent the
sample containing 20 tablets to the C.D.L,
vide a memo dated 28.06.82 to obtain a test
3-5 All. Prem Pal Vs. State of U.P. & Anr.
99
report,
which
was
received
by
the
laboratory on 20.7.1982.

(c) The Government Analyst,
C.D.L, Calcutta submitted a report dated
19.8.1982 (Exbt. Ka-10) disclosing that the
sample
does
not
contain
DEXAMETHASONE and as also the
sample is misbranded as per Section 17(f)
and adulterated as per Section 17B(eii) of
the Drugs and Cosmetics Act, 1940
(hereinafter referred to as the Act). The
report dated 19.8.1982 was sent by
Registered AD/ Post to the accused /
appellant on 28.8.1982 (Ex.Ka-16). The
accused / appellant vide his registered / AD
Post reply dated 25.9.1982 (Exbt. Ka-18),
inter alia controverted the report alleging
that the said medicines were purchased
from M/s Bharat Pharma and Chemicals,
A-5 of Industrial Estate, Hathras under
their bill no. 35 dated 22.4.1982. He also
requested for a fresh analysis of a sample
from a sealed bottle in his possession.

2. PW-1 on above allegations filed a
statutory complaint under Section 27 (a),
27(6) read with section 18a(i), 18a(ii),
18a(iia) and 18a(vi) of the Act, on
21.9.1983 before the Special Court. The
trial court taking cognizance of an offence
under Section 275 of the IPC read with U.P.
Act 47 of 1975, as also under Section
18(a)(i), (ii), (iii) and 18(c) of the Act
proceeded against the appellant as well as
the manufacturer. It appears that the
manufacturer approached this Court in A482 no. 10644 of 1991 and obtained an
interim order on 11.10.1991, whereby
proceedings of the trial court were stayed
against him. The trial of the manufacturer
stood segregated.

3. The prosecution examined PW-1,
in order to establish its case. The appellant
denied the allegations and contended that
the alleged sample was purchased from M/s
Bharat Pharma and Chemicals, Hathras, a
Licensed firm. He examined himself as
DW-1.

4. The trial court after considering the
evidence was of the view that as the
appellant failed to discharge the burden
under Section 19(3)(b) of the Act, he is not
entitled to the defence available therein,
proceeded to convict and sentence him as
above.

5. Heard Sri S.S. Sharma, learned
counsel for the appellant and Sri A.N.
Mulla, the learned A.G.A, assisted by Dr.
S.B. Maurya, the learned A.G.A-I.

6. It is submitted by learned counsel
for the appellant that as per the case of the
prosecution appellant was a retailer, sample
in question was sold to PW-1 in the same
condition as it was received from the
manufacturer against an invoice (CST no.
HT717 and UPST no. HT2934) (Ext. Ka7). He submits that as the appellant did not
and could not ascertain that the drug
contravened the provisions of Section 18,
even after exercising reasonable diligence,
he cannot be convicted under Section 27 of
the Act. He finally submitted that the
conviction under Section 275 IPC is also
not
sustainable
as
the
appellant
discontinued the sale of the drug the
moment he came to know of the drug being
spurious.

7. The learned A.G.A, controverted
the submissions by submitting that the
appellant cannot be absolved from his
responsibility, merely on the premise that
he held a valid license or that he purchased
the
said
medicine
from
a
licensed
manufacturer as he had failed to exercise
100 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable/ diligence to ascertain that the
drug was spurious / misbranded. He further
submitted that it was a life saving drug,
offence is sufficiently established both
under the Drugs Act as also under IPC and
no leniency can be shown.

8. The appellant, a retailer, is charged
for an offence under Section 18 of the Act
on the basis of a test report dated
19.8.1982, duly confronted to him. Section
18 of the Act, insofar relevant is quoted
hereinbelow:

"Prohibition of manufacture and
sale of certain drugs and cosmetics. --From
such date as may be fixed by the State
Government by notification in the Official
Gazette in this behalf, no person shall
himself or by any other person on his
behalf--

(a) manufacture for sale or for
distribution, or sell, or stock or exhibit or
offer for sale,] or distribute--

(i) any drug which is not of a
standard
quality,
or
is
misbranded,
adulterated or spurious;

(ii) any cosmetic which is not of a
standard
quality,
or
is
misbranded,
adulterated or spurious;

(iii) any patent or proprietary
medicine, unless there is displayed in the
prescribed manner on the label or
container thereof the true formula or list of
active ingredients contained in it together
with the quantities, thereof;

(iv) any drug which by means of
any
statement
design
or
device
accompanying it or by any other means,
purports or claims to prevent, cure or
mitigate any such disease or ailment, or to
have any such other effect as may be
prescribed;

(v) any cosmetic containing any
ingredient which may render it unsafe or
harmful for use under the directions
indicated or recommended;

(vi) any drug or cosmetic in
contravention of any of the provisions of
this Chapter or any rule made thereunder"

9. The plea of defence available to an
accused, not being manufacturer or his
agent for the distribution thereof, in a
prosecution under Section 18 of the Act, is
provided under Section 19 of the Act,
which is quoted hereunder:

"Section 19. Pleas. - (1) Save as
hereinafter provided in this section, it shall
be no defence in a prosecution under this
Chapter to prove merely that the accused
was ignorant of the nature, substance or
quality of the drug or cosmetic, in respect
of which, the offence has been committed
or of the circumstances of its manufacture
or import, or that a purchaser, having
bought only for the purpose of test or
analysis, has not been prejudiced by the
sale.

(2) For the purposes of section 18
a drug shall not be deemed to be
misbranded or adulterated or spurious or
to be below standard quality nor shall a
cosmetic be deemed to be misbranded or to
be below standard quality only by reason of
the fact that -

(a) There has been added thereto
some innocuous substance or ingredient
because the same is required for the
manufacture or preparation of the drug or
3-5 All. Prem Pal Vs. State of U.P. & Anr.
101
cosmetic as an article of commerce in a
state fit for carriage or consumption, and
not to increase the bulk, weight or measure
of the drug or cosmetic or to conceal its
inferior quality or other defects ; or

(b) In the process of manufacture,
preparation
or
conveyance
some
extraneous substance has unavoidably
become intermixed with it; provided that
this clause shall not apply in relation to any
sale or distribution of the drug or cosmetic
occurring after the vendor or distributor
became aware of such intermixture.

(3) A person, not being the
manufacturer of a drug or cosmetic or his
agent for the distribution thereof, shall not
be liable for a contravention of section 18
if he proves -

(a) That he acquired the drug or
cosmetic
from
a
duly
licensed
manufacturer, distributor or dealer thereof
;

(b) That he did not know and
could not, with reasonable diligence, have
ascertained that the drug or cosmetic in
any way contravened the provisions of that
section; and

(c) that the drug or cosmetic,
while in his possession, was properly stored
and remained in the same state as when he
acquired it."

10. Sub-section (1) of Section 19
provides that the accused cannot, as a
defence, plead ignorance to the nature,
substance or quality of the drug involved in
the commission of the offence, neither can
he plead that he was unaware, or how was
it manufactured / imported, nor can he
plead that the purchaser suffered no
prejudice / loss. Sub-section (3) of Section
19 is in the nature of an exception to Subsection (1) of Section 19. It applies only
when the accused is neither a manufacturer
nor his agent for distribution. The said
exception provides that such a person, shall
not be held liable for the contravention of
Section 18, but only when he proves that he
acquired the drug or cosmetic from a duly
licensed manufacturer, distributor or dealer
thereof
and
even
after
exercising
reasonable diligence, he did not know and
could not, have ascertained that the said
drug or cosmetic in any way contravened
the provisions of Section 18 and that the
said drug or cosmetic was properly stored
and remained in the same state as he
acquired them.

11. Thus, the only moot point in this
appeal is as to whether the appellant who is
neither a manufacturer nor his agent,
succeeded to set up and establish his
defence under Section 19(3) of the Act or
not.

12. It is admitted case of the
prosecution that DEXAMETHASONE was
purchased from the appellant, a valid
license holder, vide cash memo (Ext. Ka-5)
dated 26.6.1982.

13. The term "reasonable diligence"
provided under Section 19(3)(b) of the Act
will have to be interpreted in the light of
the context as also the person, who is
expected to exercise reasonable diligence.
We are dealing with a statute, where
adulteration / misbranding have to be
seriously dealt with but while doing so it be
also ensured that the burden which is
placed on a retailer / seller is not such
onerous or cumbersome that it becomes
impossible for retailer/ seller to transact
normal business. The law does not expect
102 INDIAN LAW REPORTS ALLAHABAD SERIES
that
the
retailer
/
seller
would
microscopically examine each and every
drug / cosmetic or to conduct any other test
to authenticate the genuineness of the drug
/ cosmetic. Once a retailer / seller has
established that he bought the drug /
cosmetic from a licensed manufacturer or
distributor
thereof,
and
stored
them
properly then the retailer / seller has only to
exercise reasonable diligence as expected
from an ordinary person indulging in that
particular trade. For example, where the
drug / cosmetic appears to be misbranded /
sub-standard to even a naked eye then it
may afford no protection to the retailer /
seller that he purchased the drug / cosmetic
from a licensed manufacturer and had
stored it properly.

14. The trial court refused to give
benefit of defence under Section 19(3)(b)
on the following grounds:

I) The accused went on selling
the drug in question after 5 tablets of
DEXAMETHASONE
were
purchased
from the appellant on 12.5.1982 with batch
no. 38 D/M May 81 and the report of the
CDL, Calcutta dated 4.6.1982 indicated the
drug to be spurious.

(II) No complaint to higher
authorities against the manufacturer after
the receipt of first report dated 4.6.1982.

(III) Warranty was executed by
the son of manufaturer in the absence of
any role in the proprietorship firm.

15. PW-1 nowhere alleged that the
report of the first sample, purchased on
12.5.1982 was ever confronted to the
appellant. The appellant under Section 313
CrPC vide Question no.9 specifically
denied the receipt of any report dated
4.6.1982 (Ext. Ka-4). The burden was upon
the prosecution to establish the service of
the report dated 4.6.1982, which it failed to
discharge. Thus the finding of the trial
court that despite service of the test report
dated 4.6.1982, the appellant continued to
sell
the
drug
in
question,
would
demonstrate lack of reasonable care and
due diligence disentitling him of the
defence under Section 19(3)(b) being
perverse stands vitiated.

16. The second ground also cannot be
sustained, as even after disclosure by the
appellant to PW-1 at the first available
opportunity that he purchased the drug in
question from a licensed manufacturer, i.e,
M/s Bharat Pharma and Chemicals, yet no
effort was made by PW-1 in seizing the
drugs or even inspecting the premises of
the
manufacturer,
rather
after
an
unexplained delay of nearly a month, the
concerned officials on 22.7.1982 inspected
the premises of the manufacturer. The trial
court's view that the lapse on the part of the
investigating authorities would not enure to
the benefit of accused so as to claim
available defence, cannot be sustained as
once an accused discloses the name of the
manufacturer to the Drug Inspector, then
merely because the accused did not
complain to higher authorities would not
disentitle him of the defence available
under Section 19(3) of the Act.

17. The third ground also fails for the
reason that the manufacturer was running a
proprietorship concern and the deed of
warranty was not executed by an outsider
but by the son of the manufacturer. Further
even assuming that the deed of warranty
was not signed by the competent person,
yet the same would not deprive the
appellant of the defence under Section
19(3)(b), as merely because of this reason,
3-5 All. Najeem Miyan Vs. State of U.P.
103
it cannot be said that the appellant knew or
could have ascertained that the drug was in
contravention of the provisions of Section
18 of the Act. Thus, failure to obtain a
warranty from the manufacturer would not
ipso facto mean that the accused failed to
exercise reasonable diligence.

18. We on above evidence, are of the
considered view that once the appellant
established that he acquired the drug from a
duly licensed manufacturer, whose identity
was disclosed to PW-1, at the first available
opportunity, he did not know and could not
with reasonable diligence, have ascertained
that the drug in question, in any way
contravened the provisions of Section 18,
coupled with the fact that it was not the
case of the prosecution that the drug was
not properly stored, thus he is entitled to
the defence available under Section 19(3)
of the Act, and the view taken by the trial
court to the contrary cannot be sustained.
Insofar, the conviction/ sentence under
Section 275 IPC is concerned, there is no
evidence that the accused appellant had any
knowledge that the drug in question was
adulterated. It has come in evidence that
after receipt of the test report dated
26.6.1982, which was the basis of the
prosecution, the appellant stopped the sale
of the drug in question.

Thus, in view of above, the
appeal is allowed. Conviction / sentence of
the appellant is set aside. The appellant is
on bail. His bail bond stands cancelled,
sureties discharged.

Let a copy of this judgment along
with record be sent to the learned Sessions
Judge, concerned for ensuring compliance
within 2 months under the intimation to this
Court.
----------
(2020)03-05ILR A103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Capital Case No. 198 of 2018
With
Reference No. 03 of 2018

Najeem Miyan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ajay Kumar Srivastava, Sri
Pawan Singh Pundir (A.C.), Sri Gopal
Swaroop Chaturvedi(A.C.), Sri S.M. Ayyaz
Ali, Sri Suresh Singh

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A., Sri Ajay Kumar
Srivastava

(A) Criminal Law-Indian Penal Code (45 of
1860)-Section
302-Section
377-Section
511 - Protection of Children From Sexual
Offences Act (32 of 2012) , S.3, S.4 -
Murder - accused kidnap a six year boy -
made an attempt to have unnatural sex
with him - when deceased refused he was
brutally killed by cutting into pieces -
Conviction proper (Para 21)

Criminal law- Indian Penal Code (45 of
1860)- Section 52, 302 - Murder -
Imposition
of
sentence
-
Court
are
required to scrutinize the case minutely to
find out whether the case falls under the
category of "rarest of the rare case" -
whether imposition of death penalty,
which is an exception, would be the only
appropriate & meaningful sentence and
whether imprisonment for life which is the
rule would not be adequate and would not
meet the ends of justice - a just balance
has to be struck between the aggravating
and the mitigating circumstances (Para 34)