STATE OF ORISSA versus JANMEJOY DINDA

Citation: [1998] 1 S.C.R. 1034 · Decided: 20-02-1998 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
STATE OF ORISSA 
v. 
JANMEJOY DINDA 
FEBRUARY 20, 1998 
B 
[M.K. MUKHERJEE AND K.T. THOMAS, JJ.] 
Drugs and Cosmetics Act, 1940 : 
Sections 18-A, 27(b)(ii) and 28-Search and seizure-Nursing Home-
C Stock of medicinal drugs for sale-No valid licence-Purchase invoice not 
produced-Failure to disclose name and address of the person from whom 
the drugs were acquired-Conviction and sentence passed by the Trial 
Court-Appeal to High Court-Acquittal for offence under section 28 on the 
ground that section 18-A not applicable to accused as he was neither a 
manufacturer nor an agent-On appeal, Held, section 18-A applies to any 
D person other than manufacturer or agent of drug-Acquittal based on faulty 
premise-Hence set aside. 
Section 27(b)(ii)-Held, High Court has jurisdiction to reduce sentence 
of imprisonment, below the period of six months-However adequate and 
special reasons to be recorded in the judgment-Even reduced sentence 
E should have a term of imprisonment and fine. 
The respondent was prosecuted for the offences under sec. 27(h)(ii) 
and Section 28 of the Drugs & Cosmetics Act, 1940. The case of the 
prosecution was that the Di:ugs Inspector conducted search of the premises 
of the nursing home run by the respondent. It was found that the respondent 
p had stocked for sale medicinal drugs without any valid licence. Thus the said 
drugs were seized by the Drugs Inspector. The respondent was not able to 
produce the purchase invoice for the drugs seized and also failed to disclose 
the name and address of the person from whom he acquired the drugs. The 
Magistrate after trial, convicted the respondent under sec. 27(b)(ii) and 
section 28 of the Act and sentenced him to undergo and year simple 
G imprisonment and a fine of Rs. 5,000 and also simple imprisonment for a 
period of one month. The appeal filed by the respondent before, the Sessions 
Court was dismissed. On revision, the High Court acquitted the respondent 
for the offence under sec. 28 of the Act on the ground that sec. 18-A of the 
Act was not applicable as the accused was neither manufacturer nor agent. 
The High Court also reduced the sentence and fine imposed for the offence 
H under sec. 27(h)(ii). Hence the present appeal by the State. 
1034 
r 
( 
STA TE OF ORISSA v. JANMEJOY DINDA 
1035 
The contention of the appellant was that the High Court committed an A 
error in holding that the offence under sec. 28 of the Act was not made out. 
It was also contended that the judge has acted without jurisdiction in reducing 
the sentence for the offence under section 27(h)(ii) of the Act. 
Allowing the appeal, this Court 
HELD : I.I. The acquittal of the respondent for the offence under 
section 28 of the Drugs and Cosmetics Act, 1940 is based on a basically 
faulty premise. The Section would a11ply to any person other then the 
manufacturer of a drug or cosmetic or his agent. Therefore, the acquittal 
B 
is set aside and conviction of the respondent under Section 28 of the Act is C 
restored. (1038-G-H; 1039-A) 
1.2. For application of section 18-A of the Act, the person concerned 
shall not be a manufacturer of drug or his agent. In other words, the person 
to whom the section applies is anyone other then a manufacturer or his agent 
for distribution thereof. The raison D'etre of it is that, if he is the D 
manufacturer or his agent he cannot disclose the name of the person from 
whom he acquired the drug because he himself is its manufacturer. Hence 
there is no question of requiring him to disclose the identify of the person 
from whom he acquired the drug. Exclusion of manufacturer and his agent 
from the purview of sec. 18-A is, therefore, on unden1andable premise. The 
High Court, would have missed the monosyllable 'not' in Section 18A of the E 
Act while considering the amplitude of the provision. The position of law 
when the word 'not' is remaining in the provision, is just the other way 
around. [1038-E-F-G) 
2. For failure to disclose the name of the person from whom he had 
acquired the drugs, respondent need not be sent to jail as, such a failure 
could ha\'e happened perhaps because he was oblivious of the name and 
address of the 11erson from whom he purchased the drug. That apart, there 
is no case for the Drugs Inspector or for the prosecution that any drug 
seized from the nursing home was either a spurious drug or a misbranded 
F 
one or even a tinJe expired medicine. It means that the drug seized would have G 
been othenvise g

Excerpt shown. Read the full judgment & AI analysis in Lexace.