Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • P.C. Chaturvedi
  • K.N. Srivastava
Judges
  • M.C Desai, J.
Acts
  • Sec. 18(a)(i) and (ii) of the Drugs Act. A Municipal Medical
  • Drugs Act of 1940
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • P.C. Chaturvedi
  • K.N. Srivastava
Judges
  • M.C Desai, J.
Acts
  • Sec. 18(a)(i) and (ii) of the Drugs Act. A Municipal Medical
  • Drugs Act of 1940
See more information ...
Smart Summary

Structured Summary of the Opinion (Desai, J.)

Factual and Procedural Background

The applicant was convicted under Sec. 18(a)(i) and (ii) of the Drugs Act. On 10-11-1955 a Municipal Medical Officer of Health took a sample of a medicine called "Cripex" from the applicant's shop and sent it for analysis. The Government Analyst returned a report on the prescribed form stating the sample was "sub-standard" but did not supply the protocols of the test applied. The Government Analyst was not examined as a witness to prove the tests he had applied. The Government Analyst's report was received in evidence and on its basis the applicant was convicted. The opinion under review is in revision; the Court ultimately set aside the conviction and sentence, discharged bail bonds and directed refund of any realised fine. Revision was allowed.

Legal Issues Presented

  1. Whether the Municipal Medical Officer of Health who took the sample had the legal authority to procure and send the sample for test or analysis under the Drugs Act and the Rules (i.e., whether he was an "Inspector" for the purposes of Sec. 22 and R. 51).
  2. Whether a Government Analyst's report that omits the protocols of the tests applied can be treated as a report "in the prescribed form" under Sec. 25 and thereby be admissible as substantive evidence without the analyst being called as an oral witness.
  3. Whether appointments of Inspectors made by the State Government in 1954 remain valid after the 1955 amendment to the Drugs Act (i.e., whether an Inspector must be appointed after qualifications are prescribed).
  4. Whether the last proviso to Rule 49 (permitting certain officers to be appointed ex-officio Inspectors for inspection of shops) is ultra vires the statute.

Arguments of the Parties

Arguments Presented by Sri P.C. Chaturvedi

  • It was contended that appointments of Inspectors made by the State Government in 1954 cannot be valid after the 1955 amendment of the Drugs Act (i.e., that an Inspector must be appointed after qualifications have been prescribed).
  • It was further contended that the last proviso to Rule 49 is ultra vires because an Inspector must be appointed under Sec. 21 for all the purposes of the Chapter and cannot be appointed for only some of them (thus there can be no appointment of a person as an Inspector only for the purpose of inspecting shops).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gyanendra Nath Mital v. Damodhar Bhatt, A.I.R. 1958 All. 163 Represents a contrary view (taken by Justice Raghubar Dayal) on the validity/interpretation of the last proviso to Rule 49 regarding appointment of Inspectors for limited purposes. The court notes the contrary view, respectfully dissents from it, but does not refer the matter to a larger Bench because the case before the court is disposed of by acquitting the applicant for the reasons given in the opinion.

Court's Reasoning and Analysis

The court's analysis proceeds through several discrete legal points, applying statutory text, the Rules and the facts of the case:

  1. Power and scope of appointment of Inspectors:

    The Drugs Act (as amended in 1955) empowers State Governments under Sec. 21 to appoint persons "having the prescribed qualifications" as Inspectors for purposes assigned locally. The Central Government under Sec. 33 can prescribe qualifications for Inspectors and, under that power, made the Drugs Rules (including Rule 49) in June 1957. Rule 49 prescribes qualifications and contains provisos, the last one allowing an officer of the medical or public health department who is a graduate in science to be appointed an ex‑officio Inspector for inspection of shops in a specified area.

    The court reasons that an appointment may be made for particular purposes or limited powers. The phrase "Inspectors for the purposes" in Sec. 21 does not imply that every Inspector must have all powers conferred by the Chapter; multiple Inspectors with different powers may exist concurrently within the same territorial limits. The Central Government's rule-making power under Sec. 33(n) to regulate powers and duties of Inspectors supports prescribing different qualifications and limited roles for Inspectors. Consequently, the last proviso to Rule 49 (appointing certain public health officers as ex‑officio Inspectors for shop inspection) cannot be held ultra vires on the ground alleged by Sri P.C. Chaturvedi.

  2. Whether the Municipal Medical Officer was authorized to take a sample for analysis:

    Rule 51 (made under Sec. 33(n)) confers powers on "an Inspector authorised to inspect premises licensed for the sale of drugs" including procuring and sending samples for test or analysis. The Municipal Medical Officer in this case, however, had been appointed as an Inspector for inspection of retail shops (per the State's 1954 notification) and not expressly as an Inspector authorised to inspect premises licensed for the sale of drugs. The court emphasizes that a retail shop may not be a licensed premises at all and notes that there is no evidence on the record whether the applicant's shop was a retail or wholesale shop.

    Because the officer was appointed specifically for inspection of retail shops, and because Rule 51 applies to Inspectors authorised to inspect licensed premises, the Municipal Medical Officer must be held not to have had the power to procure and send for test or analysis the sample of Gripex in this case. The court construes the word "Inspector" in Sec. 22 as context‑specific — an Inspector is an Inspector only with reference to the particular statutory power sought to be exercised.

  3. Applicability of Secs. 22–25 and evidentiary consequences:

    Sections 23, 24 and 25 (which govern the procedure and evidentiary effect of analyst's reports) come into play only when a sample is taken by an Inspector under Sec. 22(1)(b). If a sample is taken by a person who is an Inspector only for certain purposes but not for taking samples, those statutory provisions do not apply. As the court finds the Municipal Medical Officer lacked the authority under Rule 51 to take samples for analysis, the chain of statutory provisions making analyst reports admissible without oral proof is broken.

    Consequently, the Government Analyst's report in this case could not be treated as evidence under Sec. 25. Instead the Government Analyst would need to be examined orally to prove his opinion; otherwise the report alone cannot prove the case against the accused.

  4. Sufficiency of the Government Analyst's report (protocol omission):

    The report was in the prescribed form but failed to state the protocols of the test applied under the heading "Result of test or analysis with protocols of test if applied." The court holds that mere use of the prescribed form does not make a document a report "in the prescribed form" if substantial headings (such as protocols of the test) are left unfilled.

    The omission of protocols is a substantial omission going to the root of the document's adequacy: the accused must have full information about the protocols so as to be able to controvert the result by producing evidence under Sec. 25(3). Without protocols, the accused cannot fairly adduce evidence to show the test was incorrect or inconclusive. Therefore the report must be held not to be a report "in the prescribed form" within Sec. 25 and cannot be treated as evidence of the facts stated therein.

    The court notes an exception in Note to Form No. 13 that protocols need not be supplied for patent or proprietary medicines registered at the Central Drugs Laboratory. There is no evidence on the record that Gripex is such a registered medicine; therefore no basis exists to apply the exception. If such registration evidence had been produced, the report would have been in order.

  5. Validity of pre-existing appointments (timing of prescription of qualifications):

    The court rejects the contention that Inspectors appointed before the prescription of qualifications are invalid after the qualifications are prescribed. The court reasons that what matters is that the person appointed possesses the prescribed qualifications at the time of appointment. The term "prescribed" modifies the qualifications themselves and does not import an element of time into the validity of earlier appointments. Thus the State's 1954 appointments of public health officers (who were graduates in science) as ex‑officio Inspectors for inspection of retail shops are valid, provided those appointees possessed the later‑prescribed qualifications at their time of appointment.

Holding and Implications

Holding: The conviction and sentence of the applicant are set aside and the applicant is acquitted.

Direct consequences:

  • The applicant's conviction and sentence were set aside and he was acquitted.
  • His bail bonds were discharged.
  • Any fine realised shall be refunded.
  • The court allowed the revision.

Broader implications and precedent:

  • The court's reasoning clarifies that authority to take samples for analysis under the Drugs Act and Rules is context‑specific: a person appointed as an Inspector for limited purposes (for example, inspection of retail shops) does not automatically possess all the powers of Inspectors under Sec. 22 and related Rules such as R.51 unless so authorised.
  • The opinion holds that a Government Analyst's report that omits the protocols of the tests applied is not a report "in the prescribed form" under Sec. 25 and therefore cannot be admitted as substantive evidence without the analyst's oral testimony, except where the specific exception in Note to Form No.13 (registration at the Central Drugs Laboratory) applies and is proved.
  • The court expressly dissents from a contrary decision (Gyanendra Nath Mital v. Damodhar Bhatt, A.I.R. 1958 All. 163) but did not refer the matter to a larger Bench because the case before it was disposed of by acquitting the applicant. The opinion thus resolves the case in favour of the applicant but does not purport to establish a binding, wider precedent beyond its own ratio as applied to the facts of this case.

This summary has been prepared exclusively from the provided opinion and does not add or infer facts beyond those expressly contained therein.

Show full summary ...

    Raj Kishan v. State

    Desai, J.:— The applicant has been convicted under Sec. 18(a)(i) and (ii) of the Drugs Act. A Municipal Medical Officer of Health took a sample of a medicine called Cripex on 10-11-1955 from the shop of the applicant and sent it for analysis. The Government Analyst after analysis gave his report on the prescribed form that it was ‘sub-standard’ but did not give the protocols of the test applied by him. The report was received in evidence against the applicant and on its basis he has been convicted. The Government analyst himself was not examied as a witness to prove the tests applied by him.

    2. On the date on which the Municipal Medical Officer of Health took the sample, the Drugs Act of 1940 stood amended by the Act of 1955. Sec. 21 of the Act as it stands now empowers a State Government to appoint such persons, as it thinks fit “having the prescribed qualifications, to be Inspectors for the purposes of this Chapter within such local limits as it may assign to them respectively.” Under Sec. 33 the Central Government has been empowered to make rules prescribing qualifications of Inspectors. In exercise of that power, in June, 1957, the Central Government made the Drugs Rules. R. 49 prescribes the qualifications for an Inspector, it is subject to three provisos, the last one being that for the purposes of inspection of shops in any specified area any officer of the medical or public health department, who is a graduate in science, may be Appointed an ex-officio Inspector. No appointment has been made by the State of Uttar Pradesh after 1955. Prior to the amendment of the Act in 1955, the power to prescribe qualifications for an Inspector vested in the State Governments and in exercise of that power the State of Uttar Pradesh had made R. 49 prescribing qualifications for an Inspector. Those qualifications were exactly the same as are mentioned in R. 49 of the Drugs Rules made in 1957, with this difference that in the last proviso it was said that for the purposes of inspection of retail shops, any officer of the public health department, who was a graduate in science, could be appointed an ex-officio Inspector. Accordingly in 1954 the State Government had issued a notification appointing all officers of the public health department (they were all graduates in science) as ex-officio Inspectors for inspection of retail shops. No appointment of an Inspector has been done by the State Government subsequently. The Municipal Medical Officer of Health, who took the sample in the present case, is an officer of the public health department and graduate in science and was appointed an Inspector for inspection of retail shops within his district. It is not known whether the shop of the applicant is a retail shop or a wholesale shop; there is no evidence on the record. If it is a wholesale shop, the Municipal Medical Officer of Health was not empowered even to inspect it. Sec. 22 of the Act lays down that subject to any Rules made by the Central Government in this behalf, an Inspector may take samples of any drug, but if an Inspector is appointed for a purpose other than that of taking samples, he is not an Inspector within the meaning of this provision of Sec. 22. The word ‘Inspector’ occurring in the beginning of Sec. 22 means an ‘Inspector’ with reference to the particular power that is sought to be exercised; a person who is appointed an Inspector for the exercise of a particular power does not become an Inspector within the meaning of Sec. 22 for the exercise of any other power mentioned in sub-sec. (1). Under Sec. 33(n) the Central Government has the power of regulating the powers and duties of Inspectors and in exercise of this power it has made R. 51 laying down that an Inspector authorised to inspect premises licensed for the sale of drugs must inspect all establishments licensed for the sale of drugs at least twice a year and procure and send for test or analysis, if necessary, samples of any drug, which he has reason to suspect is being sold or stocked exhibited for sale in contravention of the provisions of the Act or Rules made thereunder, and to institute prosecutions in respect of breaches of the Act and the Rules made thereunder. The Municipal Medical Officer of Health having been appointed for inspection of retail shops may not be said to be an “Inspector authorised to inspect premises licensed for the sale of drugs”; a retail shop may not have been licensed at all. In the present case, the applicant has been found not to have a proper licence for the shop. Consequently, it can be said that an Inspector appointed for inspection of retail shops has not the powers conferred by R. 51 and cannot procure and send for test or analysis samples of any drug. His power is confined to making an inspection of retail shops and the power to inspect does not include the power to procure and send samples for test or analysis. Had the Municipal Medical Officer of Health been appointed an Inspector for the purpose of inspecting premises licensed for the sale of drugs and had the applicant's premises been licensed for the sale of drug, he could not only inspect them but also (under the authority of R. 51) procure and send for test or analysis samples of any drug sold or stocked therein. That is not the case here and the Municipal Medical Officer of Health must be held to have had no power to procure and send for test or analysis the sample of Gripex. Secs. 23, 24 and 25 would come into application only when a sample is taken by an Inspector under Sec. 22(1)(b). If it is taken by a person who is an Inspector for a certain purpose but not for the purpose of taking a sample, Secs. 23, 24, 25 etc. will not apply and even if he gets the sample analysed by a Government Analyst and the Government Analyst sends his report signed by him, the report cannot be evidence of the facts stated therein.

    3. The Government Analyst may in that case be examined as a witness to prove his opinion by oral testimony but his report itself would not be evidence. Consequently, in the present case, the report of the Government Analyst could not be treated as evidence.

    4. There is a serious defect in the report of the Government Analyst and it is that full protocols of the test are not supplied. The report is in the prescribed form but all the headings are not fully answered. One of the headings of the prescribed form is “Result of test or analysis with protocols of test if applied”. The report contains only the result of the test or analysis. When it does not state the protocols of the test applied, cannot be said to be a report in the prescribed form.” The mere use of the prescribed form containing the headings will not make it a report “in the prescribed form” if all the headings are not duly filled in. If there is an omission to fill in a certain heading and the omission does not cause any prejudice, it may be held that the report is still in the prescribed form but the omission to state either the result of the test or the protocols of the test applied is a substantial omission which goes to the root of the existence of the report “with prescribed form”. It is necessary for the accused to have full information about the protocols of the test applied so that he may be in a position to controvert the result by producing evidence, which power has been conferred upon him by Sec. 25(3). If he does not know the protocols of the test, he would not be in a position to adduce evidence to controvert the report by showing that the test applied was not a conclusive test or was not a correct test. If the protocols of the test are not stated in the report, the report must be held to be not a report “in the prescribed form” within the meaning of Sec. 25 and cannot be treated as evidence of the facts stated therein. If the report cannot be treated as evidence, the Government Analyst must himself be examined as a witness to prove his opinion; otherwise the case will not be proved against the accused. Note to form No. 13, by which the form of report is prescribed, provides that no protocols of test applied are necessary in respect of patent and proprietary medicines which are registered at the Central Drugs Laboratory. There is no evidence on the record to show that Gripex is a patent or proprietary medicine registered at the Central Drug Laboratory, and it cannot be assumed that no protocols of the test applied were necessary. If the Government Analyst refrained from supplying the protocols because of the registration, he should have referred to it in the report or the prosecution should have produced evidence to prove that Gripex is a patent or proprietary medicine registered at the Central Drugs Laboratory. Had such evidence been produced, there would have been no defect in the report and it would have been treated as evidence under Sec. 25(3).

    5. I do not agree with Sri P.C Chaturvedi that the appointments of Inspectors made by the State Government in 1954 cannot be valid after the amendment of the Drugs Act in 1955. An Inspector must have prescribed qualifications but it does not follow that he must be appointed after the qualifications have been prescribed. If a person is appointed an Inspector before the qualifications are prescribed, but happens to possess the qualifications which are prescribed subsequently, he is an Inspector having prescribed qualifications. What is required is that he must possess the necessary qualifications at the time of his appointment; it is not necessary that the qualifications must have been prescribed before his appointment. The word ‘prescribed’ is used only in the sense of an adjective and governs the qualifications required to be possessed; no element of time is involved in the use of the word and I do not agree that the appointment must be made after the qualifications have been prescribed.

    6. It was also contended by Sri P.C Chaturvedi that the last proviso to R. 49 is ultra-vires. The reason given is that an Inspector must be appointed under Sec. 21 for all the purposes of the Chapter and cannot be appointed for only some of them and that consequently there can be no appointment of a person as an Inspector only for the purpose of inspecting shops. The words used in Sec. 21 are “Inspectors for the purposes”: there is nothing to suggest that every Inspector must be for all the purposes and that there cannot be different Inspectors for different purposes or an Inspector for only some of the purposes. Sec. 23, which lays down the powers of Inspectors, confers the powers subject to any Rules made by the Central Government in this behalf; this means that the Central Government has the power of making rules governing which powers shall be exercised by which Inspectors. When it has this power, it can certainly appoint an Inspector for only some of the powers. The use of the word “within such local limits” does not mean that an Inspector must have all the powers to be exercised within his territorial jurisdiction. It is not essential to have only one Inspector for one territory; there can be more than one Inspector exercising different powers in the same territory. There is no bar on the Central Government's prescribing different qualifications for Inspectors for different purposes; it has full freedom to prescribe any qualifications and can prescribe one set of qualifications for an Inspector for one purpose and another set of qualifications for an Inspector for another purpose. It could, therefore prescribe lower qualifications for an Inspector for inspection of shops and the last proviso to R. 49 cannot be held to be ultra vires. A contrary view has been taken by my brother Raghubar Dayal in Gyanendra Nath Mital v. Damodhar Bhatt A.I.R 1958 All. 163. I respectfully dissent from it but it is not necessary to refer the case to a Bench because, for the reason given above, the applicant must be acquitted.

    7. I set aside the conviction and sentence of the applicant and acquit him. His bail bonds are discharged. The fine, if realised, shall be refunded.

    8. Revision allowed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Raj Kishan v. State
    (Sep 1, 1959)