Apex Court sets aside sentence of imprisonment imposed upon doctor in light of fact that his intent to sell/distribute allopathic medicines without proper license was unproven
Justices B.R. Gavai & Sanjay Karol [14-02-2024]

Read Order: PALANI v. THE TAMIL NADU STATE [SC-CRIMINAL APPEAL NO. 887 OF 2024]

LE Correspondent

New Delhi, February 15, 2024:While observing that 29 kinds of medicines recovered from the clinic run by the Appellant-Doctor were of small quantity and his intent to sell/distribute under Section 18(c) of the Drugs and Cosmetics Act, 1940 had been held unproven, the Supreme Court has set aside his conviction and imposed a fine of Rs 1 lakh upon him.

The factual background of this case was that one Palani (Appellant) ran a clinic which was inspected by the officials of the State, viz. Pallippattu Range Drug Inspector; Joint Director, Tiruvallur District Health Department; Zone Drug Inspector Poonamallee.The inspection found 29 types of allopathic medicines meant for distribution without the proper paperwork (license) for sale. Moreover, upon being questioned as to the source of procurement of these medicines, details remained unfurnished.

The Drug Inspectorfiled a complaint under Section 200 of the Code of Criminal Procedure, 1973 under section 18 (c) read with Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940. Prosecution was initiated on the basis of 6 witnesses; 12 Exhibits and with the 29 types of medicines (small quantity) recovered, being marked as material objects. The Trial Court sentenced the Appellant to two years rigorous imprisonment along with a fine of Rs 1,00,000. In default whereof, he was to undergo three months simple imprisonment. For the offence under Section 18A read with 28 of the Act, the sentence was six months simple imprisonment with a fine of Rs 20,000 with one-month simple imprisonment in default. Sentences awarded were concurrent in nature. Further, a cost of Rs.2500stood imposed for newspaper publication under Section 35.

On appeal, theAdditional District & Sessions Judge, i.e., the lower Appellate Court noted that no patients or any other persons were examined to establish that the drugs so confiscated were actually sold. No bills/receipts were produced.The conviction and sentence u/s 18(c) was set aside while others were confirmed. Accordingly, it was held that the Appellant was entitled to a refund of Rs1,00,000.

A criminal revision case stood filed but the same was dismissed. A further prayer was made to set aside the conviction and sentence under Section 18(A) of the Act and vice it, a fine could be imposed. The same was rejected. Hence, the appellant approached the Top Court.

In support of the appeal, it was submitted that the appellant, being a doctor, had no ill intention (mens rea) to contravene the law and undertake any action which may be scuttling the statutory provisions. It was prayed that the sentence of imprisonment be modified to that of a fine.

Referring to the judgment in Mohammad Giassudin v. State of Andhra Pradesh [LQ/SC/1977/210], the Division Bench of Justice B.R. Gavai & Justice Sanjay Karol reaffirmed that proper sentence is an amalgam of many factors pertaining to the offence itself as also others such as prior record if any, age, record of employment, education, home life, social adjustment and emotional and mental conditions of the offender etc.

Placing reliance upon Sections 18A & 28, the Bench opined that both these provisions concern the disclosure or non-disclosure respectively of the name of the manufacturer. The former stipulates a requirement for every person who is not a manufacturer or agent of distribution to disclose the name of the person from whom he has acquired such drug or cosmetic. The latter imposes a punishment for violation of the aforesaid requirement to the tune of imprisonment up to a year or with a fine not less than Rs.20,000or with both.

Further, the Bench took note of the fact that in S. Athilakshmi v. State Rep. by The Drug Inspector, the Top Court had acquitted a doctor of stocking a small amount of drug as the same was not slated to be equal to selling medicines across the counter in a shop. This offencewas found not proved by the lower Appellate Court.

“We find that the quantities of the 29 kinds of medicines recovered from the clinic run by the Appellant, were of small quantity. In such a situation, non-disclosure of the name of the manufacturer/person from whom the said medicines were acquired, cannot be said to be endangering public interest (which obviously, is the primary object of the prohibition in law) by allowing the circulation of such substances unauthorizedly”, the Bench said.

Considering that the Appellant is a doctor and also keeping in view the observations in Mohammad Giassudin (supra),the Bench was of the view that imposing a sentence of imprisonment would be unjustified, particularly when the intent to sell/distribute under Section 18(c) had been held unproven.

“Therefore, we find it fit to modify the impugned judgment, set aside the sentence of imprisonment as awarded, and instead thereof, impose a fine of Rs.1,00,000/- on the Appellant”, the Bench ordered.