A perusal of this evidence would clearly
indicate that P.W.1, Raghuvir Bhise, has not deposed
about the manner in which the samples were taken and the
manner in which the samples were sealed. No details are
given in respect of the containers which were used nor
are details given regarding the sealing of the samples
including the description of the seal. The learned
Trial Court while referring to Section 22(2) of the
Drugs and Cosmetics Act, 1940 has come to the conclusion
that the aforesaid provision makes the provisions of the
Code of Criminal Procedure 1973 (2 of 1974) applicable
to any search or seizure under that chapter as the
provisions of the Code of Criminal Procedure apply to
any search or seizure made under the authority of a - 5 -
warrant issued under Section 94 of the Code of Criminal
Procedure. The learned Trial Court by referring to
Section 104 of the Code of Criminal Procedure has held
that it was necessary for the Drug Inspector to have
drawn a panchanama in the presence of two independent
witnesses while taking the sample.
6. The purpose of seizure of any document or
article in the presence of independent persons lends
assurance to the Court in respect of the factum of
seizure of that document or an article. A
contemporaneous document like that of a panchanama which
evidences such seizure of a document or an article has
great corroborative value. In the present case, apart
from the fact that P.W.1, Raghuvir Bhise, has not
deposed about the details of the drawing of the samples,
the samples were not drawn in the presence of any
independent persons nor was a panchanama drawn to that
effect. The prosecution has examined P.W.3, Vijay
Sardessai, who was the proprietor of M/s. National
Agencies from whose shop the sample was drawn. P.W.3,
Vijay Sardessai, also only states "on 13.8.96 when the
Drug Inspector R. D. Bhise came to my premises and
took some samples. The samples were obtained of
Framycetine skin cream of 14 tubes were taken by the
said Bhise. Two of our staff members were present
during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
they have both signed the panchanama. I also signed the
panchanama and I identify my signature at point ’X’ at
Exh.PW3/A".
7. It appears that a panchanama in respect of
the seizure was prepared by P.W.1, Raghuvir Bhise.
However, no panchanama was drawn in respect of the
drawing of the samples. P.W.1, Raghuvir Bhise, also
does not speak about the details of the seal which was
affixed. The report of the Government Analyst at
Exh.PW1/F refers to the fact that the seals were intact
and tallied with the specimen impression of the seal
received separately. A letter bearing the specimen seal
impressions is at Exh.PW1/E. This letter is dated 13th
July, 1995 i.e. after more than 15 days of the drawing
of samples. It appears that the letter of specimen
seals was not prepared at the spot when the samples were
sealed. The samples were admittedly, according to
P.W.1, Raghuvir Bhise, in his custody from 20th June,
1995 till 30th July, 1995. Thus, the importance of the
report of the Chemical Analyst is completely whittled
down by virtue of these facts.
8. The learned Trial Court, therefore, according
to me, was completely justified in acquitting the
Respondents/Accused.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 52 OF 2002
State of Goa,
versus
Shri Tejpal P. Pandia,
CORAM: P. V. HARDAS, J.
DATED: 13TH NOVEMBER, 2003.
The State being aggrieved by the acquittal of
the Respondents for an offence punishable under Section
27 of the Drugs and Cosmetics Act, 1940, as recorded by
the learned Judicial Magistrate First Class, Bicholim, - 2 -
by Judgment dated 20th August, 2002, in Criminal Case
No. 20/0A/96/A, has filed the present Appeal.
2. The facts in brief as are necessary for the
decision of this Appeal are set out hereunder:-
P.W.1, Raghuvir Bhise, a Drug Inspector
appointed under Section 21 of the Drugs and Cosmetics
Act, 1940, visited the premises of one M/s. National
Agencies on 28th June, 1995. During his visit, he found
that several drugs meant for sale were stocked in the
premises. P.W.1, Raghuvir Bhise, drew in quantities
4x1x15 gms of Framycetine skin cream 1% W/W, bearing
batch No.144 with the date of manufacture as November,
1994 and having an expiry date of 24 months from the
date of manufacture. The said drug, of which the sample
was drawn was manufactured by the Respondents. The drug
was thereafter sent for analysis and the said drug was
found to be not conforming to the standards for
Framycetine Sulphate in terms of Section 16(1)(a) read
with the standards set out in the second schedule. On
the basis of the report of the Analyst, P.W.1, Raghuvir
Bhise, filed a complaint in the Court of Judicial
Magistrate First Class, Bicholim against the present
Respondents.
3. The learned Judicial Magistrate First Class, - 3 -
Bicholim, vide Exh.24 explained the particulars of the
offence to the Accused who pleaded not guilty and
claimed to be tried. The prosecution in support of its
case examined 3 witnesses while the Accused in their
defence examined one Pasupathi Supaya as AW.1. The
learned Judicial Magistrate First Class, Bicholim,
recorded the finding of not guilty and acquitted the
Respondents/Accused. Hence, the present Appeal. The
learned Trial Court acquitted the Accused principally on
the ground that P.W.1, Raghuvir Bhise, had admittedly
not taken the samples in the presence of independent
witnesses nor had he drawn a panchanama regarding the
drawing of the samples. According to the learned Trial
Court, such contemporaneous record was extremely vital
in order to prove the drawing of the samples. The
learned Trial Court further acquitted the Accused on the
ground that the report of the Government Analyst had not
been sent to the Respondents/Accused and, therefore, a
valuable right to have the report of the Government
Analyst questioned by referring the sample for analysis
had been deprived.
4. With the assistance of the learned Public
Prosecutor appearing on behalf of the State and the
learned Counsel appearing on behalf of the
Respondents/Accused, I have perused the evidence of the
witnesses. In respect of the drawing of the sample, - 4 -
P.W.1, Raghuvir Bhise, has this to say:
"That, I, at the time of
drawing the sample of the
said drugs, issued an
intimation in Form - 17, as
required under Rule 56 of
Drugs and Cosmetic Rule 1945
informing the purpose of
drawing the said sample and
the receipt of which was
obtained by signing duplicate
copy of the said Form-17".
"All the samples that were
drawn were effectively sealed
and suitable marked in
presence of Mr. Vijay
Sardessai, Proprietor cum
Competent person of the said
premise, as required under
Section 23(4) of Drugs and
Cosmetics Act".
5. A perusal of this evidence would clearly
indicate that P.W.1, Raghuvir Bhise, has not deposed
about the manner in which the samples were taken and the
manner in which the samples were sealed. No details are
given in respect of the containers which were used nor
are details given regarding the sealing of the samples
including the description of the seal. The learned
Trial Court while referring to Section 22(2) of the
Drugs and Cosmetics Act, 1940 has come to the conclusion
that the aforesaid provision makes the provisions of the
Code of Criminal Procedure 1973 (2 of 1974) applicable
to any search or seizure under that chapter as the
provisions of the Code of Criminal Procedure apply to
any search or seizure made under the authority of a - 5 -
warrant issued under Section 94 of the Code of Criminal
Procedure. The learned Trial Court by referring to
Section 104 of the Code of Criminal Procedure has held
that it was necessary for the Drug Inspector to have
drawn a panchanama in the presence of two independent
witnesses while taking the sample.
6. The purpose of seizure of any document or
article in the presence of independent persons lends
assurance to the Court in respect of the factum of
seizure of that document or an article. A
contemporaneous document like that of a panchanama which
evidences such seizure of a document or an article has
great corroborative value. In the present case, apart
from the fact that P.W.1, Raghuvir Bhise, has not
deposed about the details of the drawing of the samples,
the samples were not drawn in the presence of any
independent persons nor was a panchanama drawn to that
effect. The prosecution has examined P.W.3, Vijay
Sardessai, who was the proprietor of M/s. National
Agencies from whose shop the sample was drawn. P.W.3,
Vijay Sardessai, also only states "on 13.8.96 when the
Drug Inspector R. D. Bhise came to my premises and
took some samples. The samples were obtained of
Framycetine skin cream of 14 tubes were taken by the
said Bhise. Two of our staff members were present
during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
they have both signed the panchanama. I also signed the
panchanama and I identify my signature at point ’X’ at
Exh.PW3/A".
7. It appears that a panchanama in respect of
the seizure was prepared by P.W.1, Raghuvir Bhise.
However, no panchanama was drawn in respect of the
drawing of the samples. P.W.1, Raghuvir Bhise, also
does not speak about the details of the seal which was
affixed. The report of the Government Analyst at
Exh.PW1/F refers to the fact that the seals were intact
and tallied with the specimen impression of the seal
received separately. A letter bearing the specimen seal
impressions is at Exh.PW1/E. This letter is dated 13th
July, 1995 i.e. after more than 15 days of the drawing
of samples. It appears that the letter of specimen
seals was not prepared at the spot when the samples were
sealed. The samples were admittedly, according to
P.W.1, Raghuvir Bhise, in his custody from 20th June,
1995 till 30th July, 1995. Thus, the importance of the
report of the Chemical Analyst is completely whittled
down by virtue of these facts.
8. The learned Trial Court, therefore, according
to me, was completely justified in acquitting the
Respondents/Accused. The reason given by the learned
Trial Court for acquittal of the Respondents/Accused is - 7 -
not perverse and the view of the learned Trial Court is
a possible view on the basis of the evidence on record.
Coupled with the finding of the learned Trial Court, the
discrepancies noticed by me above, amply justify the
acquittal of the Respondents/Accused.
9. In view of this, there is no substance in the
Appeal and the same is dismissed.
P. V. HARDAS, J.
RD.
Print Page
indicate that P.W.1, Raghuvir Bhise, has not deposed
about the manner in which the samples were taken and the
manner in which the samples were sealed. No details are
given in respect of the containers which were used nor
are details given regarding the sealing of the samples
including the description of the seal. The learned
Trial Court while referring to Section 22(2) of the
Drugs and Cosmetics Act, 1940 has come to the conclusion
that the aforesaid provision makes the provisions of the
Code of Criminal Procedure 1973 (2 of 1974) applicable
to any search or seizure under that chapter as the
provisions of the Code of Criminal Procedure apply to
any search or seizure made under the authority of a - 5 -
warrant issued under Section 94 of the Code of Criminal
Procedure. The learned Trial Court by referring to
Section 104 of the Code of Criminal Procedure has held
that it was necessary for the Drug Inspector to have
drawn a panchanama in the presence of two independent
witnesses while taking the sample.
6. The purpose of seizure of any document or
article in the presence of independent persons lends
assurance to the Court in respect of the factum of
seizure of that document or an article. A
contemporaneous document like that of a panchanama which
evidences such seizure of a document or an article has
great corroborative value. In the present case, apart
from the fact that P.W.1, Raghuvir Bhise, has not
deposed about the details of the drawing of the samples,
the samples were not drawn in the presence of any
independent persons nor was a panchanama drawn to that
effect. The prosecution has examined P.W.3, Vijay
Sardessai, who was the proprietor of M/s. National
Agencies from whose shop the sample was drawn. P.W.3,
Vijay Sardessai, also only states "on 13.8.96 when the
Drug Inspector R. D. Bhise came to my premises and
took some samples. The samples were obtained of
Framycetine skin cream of 14 tubes were taken by the
said Bhise. Two of our staff members were present
during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
they have both signed the panchanama. I also signed the
panchanama and I identify my signature at point ’X’ at
Exh.PW3/A".
7. It appears that a panchanama in respect of
the seizure was prepared by P.W.1, Raghuvir Bhise.
However, no panchanama was drawn in respect of the
drawing of the samples. P.W.1, Raghuvir Bhise, also
does not speak about the details of the seal which was
affixed. The report of the Government Analyst at
Exh.PW1/F refers to the fact that the seals were intact
and tallied with the specimen impression of the seal
received separately. A letter bearing the specimen seal
impressions is at Exh.PW1/E. This letter is dated 13th
July, 1995 i.e. after more than 15 days of the drawing
of samples. It appears that the letter of specimen
seals was not prepared at the spot when the samples were
sealed. The samples were admittedly, according to
P.W.1, Raghuvir Bhise, in his custody from 20th June,
1995 till 30th July, 1995. Thus, the importance of the
report of the Chemical Analyst is completely whittled
down by virtue of these facts.
8. The learned Trial Court, therefore, according
to me, was completely justified in acquitting the
Respondents/Accused.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 52 OF 2002
State of Goa,
versus
Shri Tejpal P. Pandia,
CORAM: P. V. HARDAS, J.
DATED: 13TH NOVEMBER, 2003.
The State being aggrieved by the acquittal of
the Respondents for an offence punishable under Section
27 of the Drugs and Cosmetics Act, 1940, as recorded by
the learned Judicial Magistrate First Class, Bicholim, - 2 -
by Judgment dated 20th August, 2002, in Criminal Case
No. 20/0A/96/A, has filed the present Appeal.
2. The facts in brief as are necessary for the
decision of this Appeal are set out hereunder:-
P.W.1, Raghuvir Bhise, a Drug Inspector
appointed under Section 21 of the Drugs and Cosmetics
Act, 1940, visited the premises of one M/s. National
Agencies on 28th June, 1995. During his visit, he found
that several drugs meant for sale were stocked in the
premises. P.W.1, Raghuvir Bhise, drew in quantities
4x1x15 gms of Framycetine skin cream 1% W/W, bearing
batch No.144 with the date of manufacture as November,
1994 and having an expiry date of 24 months from the
date of manufacture. The said drug, of which the sample
was drawn was manufactured by the Respondents. The drug
was thereafter sent for analysis and the said drug was
found to be not conforming to the standards for
Framycetine Sulphate in terms of Section 16(1)(a) read
with the standards set out in the second schedule. On
the basis of the report of the Analyst, P.W.1, Raghuvir
Bhise, filed a complaint in the Court of Judicial
Magistrate First Class, Bicholim against the present
Respondents.
3. The learned Judicial Magistrate First Class, - 3 -
Bicholim, vide Exh.24 explained the particulars of the
offence to the Accused who pleaded not guilty and
claimed to be tried. The prosecution in support of its
case examined 3 witnesses while the Accused in their
defence examined one Pasupathi Supaya as AW.1. The
learned Judicial Magistrate First Class, Bicholim,
recorded the finding of not guilty and acquitted the
Respondents/Accused. Hence, the present Appeal. The
learned Trial Court acquitted the Accused principally on
the ground that P.W.1, Raghuvir Bhise, had admittedly
not taken the samples in the presence of independent
witnesses nor had he drawn a panchanama regarding the
drawing of the samples. According to the learned Trial
Court, such contemporaneous record was extremely vital
in order to prove the drawing of the samples. The
learned Trial Court further acquitted the Accused on the
ground that the report of the Government Analyst had not
been sent to the Respondents/Accused and, therefore, a
valuable right to have the report of the Government
Analyst questioned by referring the sample for analysis
had been deprived.
4. With the assistance of the learned Public
Prosecutor appearing on behalf of the State and the
learned Counsel appearing on behalf of the
Respondents/Accused, I have perused the evidence of the
witnesses. In respect of the drawing of the sample, - 4 -
P.W.1, Raghuvir Bhise, has this to say:
"That, I, at the time of
drawing the sample of the
said drugs, issued an
intimation in Form - 17, as
required under Rule 56 of
Drugs and Cosmetic Rule 1945
informing the purpose of
drawing the said sample and
the receipt of which was
obtained by signing duplicate
copy of the said Form-17".
"All the samples that were
drawn were effectively sealed
and suitable marked in
presence of Mr. Vijay
Sardessai, Proprietor cum
Competent person of the said
premise, as required under
Section 23(4) of Drugs and
Cosmetics Act".
5. A perusal of this evidence would clearly
indicate that P.W.1, Raghuvir Bhise, has not deposed
about the manner in which the samples were taken and the
manner in which the samples were sealed. No details are
given in respect of the containers which were used nor
are details given regarding the sealing of the samples
including the description of the seal. The learned
Trial Court while referring to Section 22(2) of the
Drugs and Cosmetics Act, 1940 has come to the conclusion
that the aforesaid provision makes the provisions of the
Code of Criminal Procedure 1973 (2 of 1974) applicable
to any search or seizure under that chapter as the
provisions of the Code of Criminal Procedure apply to
any search or seizure made under the authority of a - 5 -
warrant issued under Section 94 of the Code of Criminal
Procedure. The learned Trial Court by referring to
Section 104 of the Code of Criminal Procedure has held
that it was necessary for the Drug Inspector to have
drawn a panchanama in the presence of two independent
witnesses while taking the sample.
6. The purpose of seizure of any document or
article in the presence of independent persons lends
assurance to the Court in respect of the factum of
seizure of that document or an article. A
contemporaneous document like that of a panchanama which
evidences such seizure of a document or an article has
great corroborative value. In the present case, apart
from the fact that P.W.1, Raghuvir Bhise, has not
deposed about the details of the drawing of the samples,
the samples were not drawn in the presence of any
independent persons nor was a panchanama drawn to that
effect. The prosecution has examined P.W.3, Vijay
Sardessai, who was the proprietor of M/s. National
Agencies from whose shop the sample was drawn. P.W.3,
Vijay Sardessai, also only states "on 13.8.96 when the
Drug Inspector R. D. Bhise came to my premises and
took some samples. The samples were obtained of
Framycetine skin cream of 14 tubes were taken by the
said Bhise. Two of our staff members were present
during the seizure. Arun Hoble and Manohar Bordekar and - 6 -
they have both signed the panchanama. I also signed the
panchanama and I identify my signature at point ’X’ at
Exh.PW3/A".
7. It appears that a panchanama in respect of
the seizure was prepared by P.W.1, Raghuvir Bhise.
However, no panchanama was drawn in respect of the
drawing of the samples. P.W.1, Raghuvir Bhise, also
does not speak about the details of the seal which was
affixed. The report of the Government Analyst at
Exh.PW1/F refers to the fact that the seals were intact
and tallied with the specimen impression of the seal
received separately. A letter bearing the specimen seal
impressions is at Exh.PW1/E. This letter is dated 13th
July, 1995 i.e. after more than 15 days of the drawing
of samples. It appears that the letter of specimen
seals was not prepared at the spot when the samples were
sealed. The samples were admittedly, according to
P.W.1, Raghuvir Bhise, in his custody from 20th June,
1995 till 30th July, 1995. Thus, the importance of the
report of the Chemical Analyst is completely whittled
down by virtue of these facts.
8. The learned Trial Court, therefore, according
to me, was completely justified in acquitting the
Respondents/Accused. The reason given by the learned
Trial Court for acquittal of the Respondents/Accused is - 7 -
not perverse and the view of the learned Trial Court is
a possible view on the basis of the evidence on record.
Coupled with the finding of the learned Trial Court, the
discrepancies noticed by me above, amply justify the
acquittal of the Respondents/Accused.
9. In view of this, there is no substance in the
Appeal and the same is dismissed.
P. V. HARDAS, J.
RD.
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