JUDGMENT

1. Seven accused faced a trial for offences under Ss. 18(a)(i), 18(a)(ii) and 18(a)(ii)(a) read with Sec. 27 of the Drugs and Cosmetics Act, 1940, before the Metropolitan Magistrate, Egmore, Madras, in C.C No. 33638 of 1975. Accused 1 to 5 were acquitted of all the charges levelled against them. A-6 and A-7 were found guilty of the offences with which they were charged; A-7 was sentenced to imprisonment till rising of Court and to pay a fine of Rs. 200/- under each count in default to suffer R.I for three months and A6 was sentenced to pay a fine of Rs. 200/- under each count. The complainant, namely, the Drugs Inspector, Central Drugs Standard Control Organisation, South Zone, Madras-1 has preferred Criminal Appeal No. 482 of 1977 to enhance the punishment imposed on accused 6 and 7 Tr. Criminal Appeal No. 160 of 1978 has been filed by Accused 6 and 7 challenging the correctness of the conviction and sentence passed by the Trial Court on them.

2. The case of the prosecution is as follows. On 11th March, 1974, the Drugs Inspector, South Zone, Madras, inspected the premises of A1 and collected 4 × 400 gms. of Glycerine I.P batch No. 055 repacked by Modern Drugs, Hyderabad. One sample was sent to the Government Analyst, Calcutta, whose report stated that the sample is not, of standard quality and that it is misbranded and adulterated. Accused 2 and 3 are the partners of A1. A show-cause notice was issued to A3 who was in charge of the firm. In reply, A3 sent a letter stating that he acquired the drug from A4. The complainant sent one sample to A4 and A4 replied that he had acquired the drug from Messrs Modern Drugs, A6 which was owned by A7.

3. On behalf of the prosecution, apart from the Central Drugs Inspector, PW 1, another Drugs Inspector, PW 2, and the Drugs Inspector of Hyderabad PW 3, were examined. According to PW 1, he inspected the premises of A1 on 11th March, 1974. He took samples of Glycerine I.P batch No. 055 repacked by Modern Drugs. He collected four samples, sealed them and handed over one sample to the person who was in charge of A1's premises under Form-17. Ex. P1. One sample was sent to the Government Analyst. In this report, Ex. P4 the Government Analyst stated that the sample was not of standard quality, that it was not glycerine and that it was misbranded.

4. PW 2 is the Drugs Inspector, according to whom, a show cause notice was sent to A3 enclosing a copy of the Analyst's report and asking the source of its purchase. A3 sent a reply stating that it was A4 who sold the same under four invoices marked as Ex. P7 series. So a notice was sent to A4 making him to notify the source of purchase to which A4 replied that he purchased it from A6. One copy of the report was sent to the Drugs Controller, Andhra Pradesh for taking action.

5. P.W 3 is the Drugs Inspector, Hyderabad. On information from the Assistant Drugs Controller, South Zone, Madras, that one batch of 055 Glycerine was declared as misbranded, he visited the firm Sham Agencies, A-4, who produced Ex. P-10 series for having purchased the same from A-6.

6. When the accused were examined, accused 6 and 7 stated that they got the Glycerine from on C.K Shah and Company, Bombay, that they repacked the same and supplied to other dealers, and that the Glycerine was of genuine quality. A-7 examined himself as DW 1 and stated that he purchased the Glycerine under Exs. D-1 and D-2 from C.K Shah and Company and under Exs. D-4 and D-5 from Super Pharma and Surgical Company. After the purchase, he repacked the same and supplied it to other dealers. He stated that, in respect of 055 batch number of Glycerine repacked by him, the test report has been taken away along with other records by the Bombay Police in connection with the investigation of some other case.

7. Criminal Appeal No. 483 of 1977 & Tr. Criminal Appeal No. 159 of 1978:

8. Twelve accused faced a trial for offences under Ss. 18(a)(i), 18(a)(ii) and 18(a)(ii)(a) read with S. 27 of the Drugs and Cosmetics Act, 1940, before the Metropolitan Magistrate, Egmore, Madras, in C.C No. 3078 of 1976. Accused 1 to 10 were acquitted of the charges. A-11 and A-12 were found guilty of the offences with which they were charged; A-11 was sentenced to imprisonment till rising of Court and to pay a fine of Rs. 200/- under each count in default to suffer R.I for three months and A-12 was sentenced to pay a fine of Rs. 200/- under each count.

9. The complainant, the Drugs Inspector, has preferred Criminal Appeal No. 483 of 1977 to enhance the punishment imposed on accused 11 and 12. Transfer Criminal Appeal No. 159 of 1978 has been filed by accused 11 and 12 challenging the correctness of the conviction and sentence passed by the Trial Court on them.

10. The case of the prosecution is as follows. On 5-5-1975, the Drugs Inspector, inspected the premises of A-2 owned by A-1 and collected samples of Glycerine I.P batch No. 065 repacked by Messrs Modern Drugs, Hyderabad. One sample was sent to the Government Analyst, Calcutta, who, in his report, Ex. P-3, stated that the sample was not of standard quality, was misbranded and was adulterated. A show-cause notice was sent to A-1 to disclose the names and addresses of persons from whom he acquired the drug. A-1 stated that he purchased it from Messrs Vijay a Pharmaceuticals, A-4, owned by A-3. A copy of the report with one portion of the sample was sent to A-4 and A-4 replied that he purchased it from Messrs Amartlal and Company, A-6, owned by A-5. In turn, notice was sent to A-6, who replied that he purchased it from Messrs Crown Agencies, A-10, owned by A-7 to A-9. When A-10 was sent a notice, A-10 sent a reply stating that they purchased the drug from Messrs Modern Drugs, Hyderabad, A-12, owned by A-11.

11. To prove the case against the accused, the prosecution examined two witnesses. PW 1, the Drugs Inspector deposes that he along with another Drugs Inspector, inspected the shop of A-2 and collected a sample of glycerine I.P Batch No. 065 from A-1 and divided the same into four parts and sealed them and prepared form No. 17, Ex. P-1. One sample was given to A-1 with an endorsement and another sample was sent to the Government Analyst, Calcutta. Ex. P-3 is the report of the Government Analyst. He sent a notice Ex. P-4 to A-1. A-1 in reply enclosed a copy of the bill for the purchase of glycerine from A-4. Notice was sent to A-4 who stated that he purchased it from A-6. Notice was sent to A-6 who in his reply stated that he purchased it from A-10. PW 1 sent notice to A-10 and A-10 replied that he purchased it from A-12. P.W 2 Central Drugs Inspector, states that he got permission to launch the prosecution in this case.

12. Accused 11 and 12, in their statement stated that they purchased the drug from C.K Shah of Bombay, under Exs. D-1 and D-2, and it is tested by Messrs Incon Laboratory, Bombay. A-11, who was examined as DW 1, stated that he had been purchasing glycerine from Super Pharma and Surgical Company, Hyderabad, and Exs. D-3 and D-4 are invoices. After purchase, they repacked the same and supplied to other dealers. He stated that in respect of other batch number of glycerine, the reports are available and marked Exs. D-5 and D-6. He further stated that they obtained similar reports for Glycerine batch No. 065 but the reports are not available since the Bombay police have taken them away with other records for investigation in some other case.

13. The appellant and the respondent? in Criminal Appeals Nos. 482 and 483 of 1977 are the same. So also are the appellants and the respondent in Transfer Criminal Appeals Nos. 160 and 159 of 1978. The points raised by the counsel for both sides in these appeals being the same I propose to pass a common judgment in these appeals.

14. Several points have been urged by the learned counsel for the accused before me but only one point needs consideration and that is, whether the conviction of the accused can be sustained on the admission of the prosecution that no copy of the Analyst's report was served on the accused as contemplated under S. 25 of the Drugs and Cosmetics Act, 1940.

15. To appreciate the contention raised, it is necessary to refer to the relevant provisions of the Act Sec. 23(3) reads as under:

“Where an Inspector takes a sample of a drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked:

Provided that where the sample is taken from premises whereon the drug or cosmetic is being manufactured it shall be necessary to divide the sample into three portions only:

Provided further that where the drug or cosmetic is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug or cosmetic be such that it is likely to deteriorate or be otherwise damaged by exposure shall take three or four, as the case may be of the said containers after suitably marking the same and, where necessary, sealing them.”

16. Clause 4 of S. 23 reads as follows:

“The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows—

(i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;

(ii) the second he shall produce to the Court before which proceedings, if any are instituted in respect of the drug or cosmetic; and

(iii) the third where taken, he shall send to the person if any, whose name, address and other particulars have been disclosed under S. 18A.”

17. Section 18A reads as under:

“Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.”

18. Section 25 reads as under:

“(1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of Section 23, shall deliver to the Inspector submitting it signed report in triplicate in the prescribed form.

(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under S. 18A, and shall retain the third copy for use in any prosecution in respect of the sample.

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under S. 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-sec. (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused cause the sample of the drug or cosmetic produced before the Magistrate under sub-sec. (4) of Section 23 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result there of, and such report shall be conclusive evidence of the facts stated therein.”

19. Sub-sections (2) to (4) of Sec. 25 make it clear that certain rights are available for the person from whom the sample was taken and also for the person, if any, whose name, address and other particulars have been disclosed to the Inspector under S. 18A. Sub-sec. (3) gives an opportunity for such a person, if he wants to challenge the report of the Government Analyst, to notify the Inspector or the Court in writing within twenty-eight days of the receipt of a copy of the report, that he intends to adduce evidence in controversion of the report and he may under sub-sec. (4) request the Court to send the sample to the Central Drugs Laboratory for analysis and report.

20. It is not disputed that the name, address and other particulars of the accused have been disclosed under S. 18A and they are entitled to the rights envisaged under S. 25(2) and (3). They are entitled under S. 23 to one portion of the sample and under S. 25 to a copy of the Analyst's report. As stated above, no analyst's report was served on the accused.

21. The learned counsel for the accused contended that the non-compliance of S. 25, in not serving a copy of the Analyst's report on the accused, is fatal to the prosecution case. In support of his contention, he relied on the decision in Gyanendra Nath Mittal v. State (AIR 1959 All 634) : (1959 Cri LJ 1136); in that case Column No. 7 of the Analyst's report which ought to contain “the result of test or analysis with protocols of tests applied”, only the result was mentioned and not the protocols. The learned Judge held that the failure to give the protocols is a fatal defect because it deprives the person from whom the sample was taken of his valuable right of giving notice under S. 25 to the Inspector or the Court that he intends to adduce evidence in controversion of the report, and that if he does not know the protocols of the test or analysis, he cannot decide whether he should adduce evidence in contreversion of the report and he is seriously prejudiced and his conviction cannot be maintained.

22. In the instant case, it is not merely the absence of filling up a column but the entire report itself has not been made available to the accused.

23. The learned counsel for the accused relied on another decision reported in Babulal v. Drug Inspector, Madras (1970-1 Mad LJ 124) : (1969 Cri LJ 699) wherein the learned Judge observed that, under the Drugs Act, the report of the Government Analyst is treated as conclusive but sufficient safeguard is provided for the person aggrieved to adduce evidence in controversion of the report by following the procedure laid down in the sub-section.

24. Section 25 is mandatory and it should be complied with. Strict observance of the provision is imperative. As the Analyst's report is conclusive evidence of its contents, it is absolutely necessary to observe corresponding security and safeguards. The right is a very valuable right for, within twenty-eight days of the receipt of the copy of the report, accused can notify in writing to the Inspector or to the Court that he intends to adduce evidence in controversion of the report. The prosecution cannot deny the right by not serving a copy of the Analyst's report on the accused. Where there is a denial of the right, prosecution is not entitled to secure the conviction of the accused.

25. The learned counsel appearing for the Drugs Inspector, referring to Sections 18A, 23(3) and (4) and 25, expressed the helplessness of the Drugs Inspector in complying with the provisions of providing one portion of the sample and serving a copy of the Analyst's report to the accused, if more persons are involved as accused inasmuch as the Act contemplates dividing the sample taken into only three or four portions and subsequently receiving the Analyst's report in triplicate. I appreciate the difficulty. The Legislature should have envisaged a case like the present one where there are number of accused persons who are entitled to have each one portion of the sample and a copy of the Analyst's report. This defect in the Act has to be rectified. That however, is the business of the Legislature and not mine. For the foregoing reasons, the conviction and sentence imposed on the accused cannot be sustained, and they are set aside. The fine amount paid by the accused; if any, will be refunded. In the result, Criminal Appeals Nos. 482 and 483 of 1977, filed by the Drugs Inspector, are dismissed and. Transfer Criminal Appeals Nos. 160 and 159 of 1978, filed by the accused, are allowed.

26. Appeal allowed.