1. The State has filed this appeal challenging the correctness and legality of the judgment of acquittal d/. 28-1-1973, passed by the Judicial Magistrate, I Class (I Court), Bangalore City, in CC. 2555 of 1971, acquitting the respondents who were Accused 1, Accused 3 and Accused 4 respectively in the said criminal case of the offences under S. 27(b) read with S. 18(a)(i) and S. 18(a)(vi) and S. 22 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the ‘Act’).
2. The prosecution casa was that PW. 2 Venkanna Gowda Rayanna Gowda Patil was working as Asst Drug Controller in Bangalore and had been appointed as Inspector under Sec. 21 of the Act. The Manoj Drug House sells drugs in its shop. Apart from the drugs displayed in the shop, it was stocking drugs in its stare) room. On 17-7-1970, PW. 2 went to the premises of Accused 1 and found Liquid Paraffin I.P, Batch No. 1, repacked by Rajasthan Pharmaceutical and Formalin I.P, Batch No. 1 stocked and exhibited for sale. He served notice on Accused 3 who was present and took samples as provided in S. 23 of the Act. He, of courses gave ope sample of each to Accused 3. He sent samples of the drugs to the Govt. Analyst for testing. The Govt. Analyst sent a report and a copy of it was supplied to the accused. Thereafter, PW. 1 Jayaram, Drugs Inspector appointed under S. 21 of the Act for the local area of Bangalore Divn. took up the matter on hand. PW. 2 issued prohibitory order under S. 22(c) of the Act and PW. 1 visited the premises of Accused 1 on 9-9-1970 and served the prohibitory order. Again on 29-9-1970, he served another prohibitory order by which, the period was extended. Again on 19-10-1970, he served another prohibitory order issued by PW. 2 to be in force even beyond 28-10-1970. On 28-10-1970, he went with two witnesses to the premises of Accused 1. He directed that the stocks in regard to which prohibitory orders were issued, be produced before him. The stock was produced, and it was found that the stock was short by 57 bottles in regard to liquid paraffin IP. 450 ML Batch 1. He recorded a mahazar as per Ext. P8 in this behalf it was thereafter that he was transferred and one Hanumantha Rao was posted as Drug inspector to this local area. Shri Hanumantha Rao filed the complaint in this case. The accused have denied having committed the offences. Written statements have been produced by the accused apart from the examination of the accused under S. 342 Cr. PC (old) made by the learned Magistrate. Their say is that these samples had been taken by PW. 2 on the respective dates and that a portion of the samples had been given to them. But, they had purchased the said stock, from Rajasthan Pharmaceutical, who were the repackers and they did not know whether the drugs were or were not substandard.
3. The undisputed facts in this case are that PW. 2 was the Asst Drug Controller in Bangalore and he visited the premises of Accused 1 and took samples as narrated above. The samples were sent to the Govt. Analyst for testing and the Govt. Analyst tested the same and issued reports. The reports disclosed that the drugs were substandard. PW. 2 issued prohibitory orders S. 22(c) of the Act and PW. 1 served those orders on the accussed. On 28-10-1970, PW. 1 went to the premises of Accused 1 to ascertain whether the stock in regard to which prohibitory order had been issued under S. 22(c) of the Act, was or was not in tact. It was found that the stock was short by 57 battles of liquid paraffin IP. 450 ML Batch 1. PW. 1 was transferred and Hanumantha Rao, the then Drugs Inspector for this local area, filed the complaint.
4. The learned Magistrate has held:
(i) that PW. 2 was not a properly appointed Inspector having powers to visit premises as that of Accused 1 and take samples;
(ii) PW. 2 retained with himself the seal affixed to the samples and hence there remained no guarantee that the seals affixed to the samples that were sent to the Govt. Analyst remained intact and those samples were the very same samples that had been taken in the presence of the accused;
(iii) The burden was on the prosecution to eliminate the defence available to the accused under Sec. 19 of the Act and the prosecution had failed to do so;
(iv) In regard to paraffin IP. 450 Batch 1, it was tested by the Central Drugs Laboratory and that Laboratory has, in its report, opined that it was of acceptable quality therefore, no offence could be said to have been committed to that drug; and
(v) There is no evidence to show that PW. 1 had searched the whole of the premises of Accused 1 on 28-10-1970 to find out the missing 57 bottles of liquid paraffin IP. 450 ML Batch 1 and there was no evidence to show that any of the accused had sold away those bottles hence no offence could be said to have been made out and further on, no ??? had been made to find out as to where those missing 57 bottles were. Hence, no offence under S. 22(c) of the Act had been established.
5. The learned State Public Prosecutor argued at length as against the abovementioned conclusions arrived at by the learned Magistrate.
6. Sri R. Shankarlal, the learned Advocate appearing on behalf of the accused contended that there was no evidence produced in this case to establish that the said stock had been kept by the accused for sale in the said premises. Hence no offence under the provisions of the Act can be said to have been made out. In view of the undisputed set of facts narrated above by us, we are clearly of opinion that this argument cannot stand. Moreover the circumstances surrounding this point are overwhelming and they show that Accused 1 firm was vending drugs in its shop and was stocking these drugs in its store room and further that the drugs, the samples of which were taken by PW. 2, were in the premises of Accused 1 firm. Naturally, it flows from these facts and circumstances that these drugs must have been kept for sale. The total quantity of these two drugs is found mentioned in the three prohibitory orders issued by PW. 2 and served on the accused by PW. 1. When the large quantity mentioned therein is taken into consideration, there cannot be any other inference but that the accused had stocked these drugs for sale in the premises of Accused 1.
7. The next argument of Shri Shankarlal was that PW. 2 was not an Inspector under the Act and had no powers enabling him to search the premises of Accused 1 and take samples. The learned Magistrate has, in regard to such an argument advanced before him, held that no Notification showing that PW. 2 had been appointed and was vested with powers to inspect premises such as that of Accused 1 and take samples, had been produced by the prosecution. The record shows that a Notification issued by the State Govt. in the Gazette appointing all Asst Drug Controllers as Inspectors under S. 21 of the Act, had been published in April, 1966 itself. It is undisputed that PW. 2 was, at that time, an Asst Drug Controller. It is, therefore, manifest that PW. 2 had been vapidly appointed as an Inspector under the Act. S. 22 of the Act lays down the powers of such Inspectors. That provision clearly shows that the Inspectors so appointed are vested with the powers of inspecting any premises wherein any drug is being manufactured etc., and taking samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale, or is being distributed and so on. We have, therefore, no hesitation in holding that PW. 2 had been appointed as an Inspector under S. 21 of the Act and his jurisdiction extended throughout the State of Karnataka and he had the powers to inspect the premises like that of Accused 1 and take samples. The argument on behalf of the accused, which has found favour with the learned Magistrate, is that the said Notification does not show that the Asst Drugs Controller had been vested with the power to take samples. S. 21(2) of the Act provides that the powers which can be exercised by an Inspector and the duties which can be performed by him or class of drugs in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be excercised or performed shall be such as may be prescribed. When the Notification dose not make a mention of any such thing as contained in sub-sec. (2) of S. 21, it follows that all the powers mentioned in S. 22 of the Act were vested in the persons who were appointed as Inspectors by the said Notification. Hence this argument has to fail. The reasoning of the learned Magistrate that another Notification prescribing particular powers as having vested in PW. 2 ought to have been issued by the Govt. and produced in the case cannot stand.
8. Shri Shankarlal advanced the very argument pertaining to PW. 1 retaining the seal with himself and which argument has found favour with, the Magistrate. PW. 2 has, of course, sworn that after sealing the different samples and handing over the concerned portion of samples to the accused, he retained the seal with himself. This shows that if PW. 2 was so minded, he could have at any time before sending the samples to the, Govt. Analyst, opened the seals, tampered with the samples and re-sealed the samples with the same seal. This is exatly, in view of this position, that the learned Magistrate has concluded that there was no guarantee that the samples that were sent to the Govt. Analyst ware in the same condition as they were when they were taken in the presence of the accused. We are unable to see any force, in this argument of Shri Shankalal and the reasoning of the learned Magistrate, because the provisions of the Act make it abundantly clear that sufficient safeguards have been provided by making it incumbent on the Inspectors to handover one portion of the samples taken to the accused then and their. The accused have every right to controvert the report of the Govt. Analyst and adduce, evidence) to show that the report is not reliable. The accused have every right to get the samples given to them by the Inspector tested and thereby show that the sample that was sept to the Govt. Analyst could not have been in the very condition that it was when it was taken.
9. Sec. 19 of the Act reads as follows:
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10. A plain reading of this section makes it crystal clear that the reasoning of the learned Magistrate) that all this defence open to the accused ought to have been eliminated by the prosecution by producing cogent evidence to that effect is not sound. S. 19(1) of the Act makes it plain that it shall be no defence to plead mere ignorance in regard to the nature or substance or quality of the drug in respect of which the offence has been committed and so on. If any defence under the provisions of S. 19 of the Act is taken by the accused, the burden is on the accused to show to the Court that the facts and circumstances in support of such a defence are available in evidence. On the other hand we find in this case that taking of samples, handing over a portion of samples to the accused, serving of necessary notices and a copy of the report of the Govt. Analyst on the accused have been done. All that is stated in the written statement of the accused is that the accused had got the supplies of these drugs from Rajasthan Pharmaceutical who, are packers and the accused were not aware that the drugs were substandard. This say of the accuse is hit by S. 19(1) of the Act and that cannot amount to a valid defence in view of this provision. No other circumstance showing that the accused are entitled to the remaining pleas mentioned in S. 19 of the Act are found on record. Hence, we do not agree with the learned Magistrate in his reasoning on this point.
11. The reasoning with regard to formalin IP. Batch 1, that because the Central Drugs Laboratory has issued a report showing that it was of acceptable quality and such a report becomes conclusive in view of S. 25(4) of the Act, does not appeal to us. The opinion of the Govt. Analyst or the Director of the Central Drugs Laboratory cannot be conclusive evidence under S. 25(4) of the Act. What become, under S. 29(3) and S. 25(4) of the Act, conclusive evidence are the observations made by them after performing the protocol of testa. The observations made by the Central Drugs Laboratory are found in the report and those observations show that the said drug does not tally with the protocol of tests mentioned in the Pharmacopoeia of India. Hence in view of the provisions of the Act, it will have to be held that the drug formalin has been established to be substandard. The learned Magistrate was evidently wrong in holding that the opinion expressed in the report issued by the Director of Drugs Laboratory will also be conclusive evidence under S. 25(4) of the Act.
12. shri Shankarlal, nextly took shelter under legal arguments. He pointed out that PW. 2 has nowhere stated in his evidence that when he took samples from the accused, he tendered fair price as required by him by Section 23(1) of the Act. The learned State Public Prosecutor drew our attention to the evidence of PW. 2 in this behalf and showed that PW. 2 had narrated that the accused did not give him a bill and he (PW. 2) had not paid any price for the samples taken by him. He nextly drew our attention to Ext. P12 which is Form No. 17 under the Drugs and Cosmetics Rules, 1945, (hereinafter referred to as the ‘Rules’). He pointed out that it was mentioned by PW. 2 at the top right hand corner that PW. 2 had asked for the bill and that portion of it was signed by Accused 3. He, on this basis urged that it will have to be held that PW. 2 had tendered fair price and, therefore, had tendered fair price as required by him by S. 23(1) of the Act. The learned State Public Prosecutor drew our attention to the evidence of PW. 2 in this behalf and showed that PW. 2 had narrated that the accused did not give him a bill and he (PW. 2) had not paid any price for the samples taken by him. He nextly drew our attention to Ext. P12 which is Form No. 17 under the Drugs and Cosmetics Rules, 1945, (hereinafter referred to as the ‘Rules’). He pointed out that it was mentioned by PW. 2 at the top right hand corner that PW. 2 had asked for the bill and that portion of it was signed by Accused 3. He, on this basis urged that it will have to be held that PW. 2 had tendered fair price and, therefore, had complied with that part of the provisions found in S. 23(1) of the Act. The contention of Shri Shankarlal is that the tendering of fair price by the Inspector is mandatory as provided in S. 23(1) of the Act and when a mandatory provision is not followed, the only inference that follows is that taking of samples was not according to S. 23 of the Act and hence the report of the Govt. Analyst on analysing such samples cannot be regarded as the report contemplated under the provisions of the Act. When that is so, such report cannot be conclusive evidence as provided in S. 25(3) of the Act. The learned State) Public Prosecutor urged that though the word ‘shall’ is found used in S. 23(1) of the Act in regard to tendering of fair price, the provision ought not to be considered as a mandatory provision but should be construed as a directory one. He nextly urged that even if it is construed that the provision is mandatory, the Court should take into consideration all the provisions contained in S. 23 of the Act in order to find out whether sample or samples had been taken under the said provision and if it is found by the Court that the necessary substance of all the provisions of S. 23 had been followed regard being had to the fact that tendering of fair price under S. 23(1) of the Act, would not have any bearing in regard to the admissibility of the report of the Govt. Analyst, the Court should have held that even in such circumstances, the report of the Govt. Analyst would be conclusive evidence under S. 29(3) of the Act.
13. Shri Shankarlal relied on the decision in Mary Lozrado v. State of Mysore . AIR. 1966 Mys. 244 in support of his contention. The said case was under the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the ‘Food Adulteration Act’). Rules 7 and 18 of the Food Adulteration Rules were considered. This Court held that the said rules were mandatory in view of the use of the word ‘shall’ and it was incumbent on the Food Inspector to follow all the mandatory provisions and he having not followed the mandatory provisions, the report of the public Analyst did not become conclusive evidence. Reliance was placed by this Court on the decision in Rattan Anmol Singh v. Atmaram . AIR. 1954 SC. 510., the ratio laid down therein being “when the law enjoins the observation of a particular formality it cannot be disregarded and the substance of the thing must be there”. Reliance was also placed by this Court on the ??? of the Gujarat High Court in State of Gujarat v. Shantaben . AIR. 1964 Guj. 136.. This decision no doubt lends considerable support to the contention of Shri Shankarlal.
14. But, in Mangaldas Raghavji Ruparel v. State Of Maharashtra . AIR. 1966 SC. 128. the Supreme Court considered the provisions of S. 11 of the Food Adulteration Act and held in spite of the use of the word ‘shall’ in the said section that notice to be issued under S. 11 of the Act. Has no bearing on admissibility of Public Analyst's report in evidence. This decision was flowed by this Court in Laxman Sitaram Pai v. State of Mysore . AIR. 1967 Mys. 33. The very same Rules 7 and 18 were under consideration. It was held that there was sufficient compliance of the provisions of the said Act.
15. In Manaaldas Raqhavaii Ruparel's case the Supreme Court has in regard to the not contemplated under S. 11 of the Food Adulteration Act observed as follows:
“The object of this provision is clearly to apprise the person from whom the sample is taken of the intention of the Food Inspector so that he may know that he will have the right to obtain from the Food Inspector a part of the commodity taken by way of sample by the Food Inspector. This is with a view to prevent a plea from being raised that the sample sent to the Analyst was of a commodity different from the one from which the Food Inspector has taken a sample. What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate. Once the report of the Analyst is placed on record at the trial it is admissible against all the accused persons.”
16. It is to be remembered that in the said case, notice under S. 11 had not been served on the cither accused. Even then the Supreme Court held that the report of the Public Analyst was admissible in evidence against such accused also.
17. Sec. 23(1) of the Act reads as follows:
“23(1) where an Inspector takes any sample of a drug under this Chapter, he shall tender the fair price thereof and nifty require a written acknowledgement therefor.”
18. As we understand the section, the primary object of providing that the Inspector should tender the fair price when he takes any sample of a drug, is to make it appear prima facie that the said drug had not been exhibited or stocked for sale. The other object appears to be that there should not be indiscriminate taking of samples of even costly drugs by Inspectors. When these objects are taken into consideration, it is clear to our mind that this provision has no bearing in regard to the admissibility of the report of the Govt. Analyst. Therefore, the reasoning in Mangaldas Raghavji Ruparel's case amply applies to this case also. Hence the contention of Shri Shankarlal has to fail. Moreover we find that the undisputed facts show that the Inspector, viz, PW. 2 had complied with all the provisions of the remaining sub-sections right from sub-sec. (3) onwards of S. 23 of the Act. He had no occasion to act according to sub-sec. (2) of S. 23 of the Act, because, it is nobody's case that when he tendered the fair price, the accused refused to accept it. These facts convince us that the ‘substance of the thing’ had been done by PW. 2 the Inspector. That is exactly how the Supreme Court has laid down in Rattan Anmol Singh's case in regard to compliance of mandatory provisions of law pertaining to procedure.
19. Even if it is assumed for the sake of argument that S. 23(1) of the Act is mandatory and it has to be complied with, the question that still remains is whether it can be said under the facts and circumstances that there had not been compliance of that provision.
20. In Ram Labhaya v. Delhi Municipality . 1974 4 SCC 491, the Supreme Court has considered the provisions in S. 10(7) of the Food Adulteration Act. S. 10(7) of the Food Adulteration Act reads as follows:
“Where the Food Inspector takes any action under Cl. (a) of sub-secs (1), (2), (4) or sub-sec. (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.”
21. Their Lordships went into the legislative history and background of this provision and concluded that it was mandatory. Their Lordships after concluding as above, observed as follows:
“We are of the opinion, particularly in view of the, legislative history of S. 10(7), that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector must pall one or more independent persona to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence at one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which S. 10(7) caste on the Food Inspector is to ‘call’ one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.”
22. Therefore, even if the previsions in S. 23(1) of the Act are considered to be mandatory, this reasoning will have to be applied in regard to interpretation and understanding of the provisions. Hence to contend that every word of the provisions is to be literally followed before making the samples taken remain samples under S. 23 of the Act, would not be correct. PW. 2 has sworn that he did not pay any price, and the accused also did not give any bill. It is undisputed that he served Ext. P12 which is Form No. 17 on Accused 3 and Accused 3 affixed his signature in its right hand top corner. It is written therein that bill was asked by PW. 2. These facts show that PW. 2 has substantially complied with the provisions of S. 23(1) of the Act, because the facts show that PW. 2 asked for the bill only with a view to pay the amount that would be mentioned by Accused 3 in the bill. The reasoning of the learned Magistrate, that the prosecution had not produced any evidence to show that, the Inspector had searched the whole premises for missing 57 bottles of liquid paraffin IP. 450 ML. Batch 1, that he tried to trace as to where those 57 bottles would be available and further that the provisions of the Act did not provide that it was incumbent on the accused to produce the stock when asked for by the Inspector, does not make sense to us. It is undisputed that prohibitory orders were served on the accused on various dates prohibiting the accused from disposing of the stocks mentioned in the prohibitory orders. It is no doubt true that the prosecution has not produced evidence to show that the accused had sold away those 57 bottles. But, the manner of disposing of the 57 battles would not be material while considering this provision of the Act. The very fact that 57 bottles were missing, shews that the burden was on the accused to explain how they came to be missing. No attempt to discharge the burden has been made. The only argument of Sri Shankarlal is that there might have been same mistake committed while counting the number of bottles as the stock of bottles was considerable. This argument has no legs to stand in view of the acknowledgments made by the accused as seen from the concerned prohibitory orders served on him. PW. 1 has sworn that he recorded a panchanama when he found that 57 bottles were missing. This is more than sufficient to establish that 57 bottles had been disposed of by the accused in contravention of the prohibitory orders served on him.
23. In view of the foregoing reasons, we hold that the prosecution has satisfactorily established the charges against the accused. We, therefore, allow this appeal and set aside the judgment of acquittal d/. 28-11-1973 passed by the Judicial Magistrate. I Class (I Court), Bangalore City, in CC. 2555 of 1971. We convict the accused for having committed the offence punishable under S. 22(c) of the Drugs and Cosmetics Act, 1940. We also convict the accused for having committed the offences punishable under S. 27(b) read with S. 18(a)(i) and S. 18(a)(vi) of the Drugs end Cosmetics Act, 1940, on two counts. We sentence each one of accused to pay a fine of Rs. 1,000 for the offence under S. 22(c) of the Drugs and Cosmetics Art, 1940, and Respondents 2 and 3 to undergo simple imprisonment far one month in default of payment of fine. We sentence each one of the accused to pay a fine, of Rs. 1,000 for having committed the offences punishable under S. 27(b) read with S. 18(a)(i) and S. 18(a)(iv) of the Drugs and Cosmetics Act, 1940. for each one of the two counts. Respondents 2 and 3 will, in default of payment of fine, undergo simple imprisonment for one month.