Ram Shankar Misra v. State

H.C.P Tripathi, J.:— Applicant was convicted by the City Magistrate, Kanpur u/S. 27 of the Drugs and Cosmetics Act (Act No. XXIII of 1940) and sentenced to one month's rigorous imprisonment and to a fine of Rs. 500. In default of payment of fine, he was directed to undergo one month's further rigorous imprisonment.

2. On appeal, the learned Civil & Sessions Judge, Kanpur affirmed the Conviction and sentence of the applicant. Applicant is a partner in Misra Brothers which maintains a Drugs and Cosmetics shop at Kanpur. On 22-2-1966 Sri G.R Jain (PW 1) Inspector of Drugs, Kanpur Region, inspected the premises of the shop in the presence of the applicant and collected a sample of Prednisolone Tablets, B.P 5 m. gms., which were stocked there and sent the same to the Director, Central Drugs Laboratory, Calcutta for its analysis and report. The report of the Director indicated that the tablets were not of standard quality as defined in Drugs Act, 1940 and the Rules made thereunder. Accordingly, on a complaint lodged by Sri Jain, applicant was tried for an offence punishable u/S. 27 of the Drugs & Cosmetics Act.

3. At the trial, applicant pleaded not guilty and stated that the aforesaid tablets found in his shop were not for sale and he had so informed the Drugs Inspector at the time of his inspection. According to the applicant, the tablets had been received by him from A.B & Sons, which did not sent the invoice for the same, and, therefore, they were kept in stock awaiting the receipt of the invoice. Applicant examined three witnesses in his defence.

4. Shiv Adhar (D.W 1) has testified that at the relevant time, he was employed with A.B & Sons, Kanpur, his duty was to book orders, for the said Firm and in February, 1966 on behalf of the Firm, he booked an order for the supply of Prednisolone tablets to the applicant's firm Misra Brothers of Kanpur. He, however, was not in a position to state as to whether the aforesaid tablets were handed over to the applicant in response to his order. He admitted to have received the copy of a letter addressed by Misra Brothers to A.B & Sons dated 19-2-1966 (Ex. Kha-7) on their behalf and to have signed it in token of its receipt. He also admitted to have signed a receipt indicating the recovery of Rs. 150 as salary for the month of September, 1966 (Ex. Kha-3).

5. Suresh Chandra Srivastava (D.W 2) a clerk of the office of Mahapalika, Kanpur (Health Department) testified to have received a letter dated 21-2-1966 (Ex. Kha-8) from Misra Brothers addressed to the Medical Officer of Health, who is drugs licensing authority, indicating therein that 400 Prednisolone Tablets received by them from A.B & Sons had been kept apart at their shop awaiting the receipt of the invoice from the supplier and till then they were not for sale.

6. Sri Karuna Shankar Misra (D.W 3), a brother of the applicant, also stated that the aforesaid tablets were supplied by Shiv Adhar (D.W 1) on behalf of A.B & Sons, Kanpur but as no invoice was brought along with the tablets, the payment for the same had not been made and they were kept apart awaiting the receipt of the invoice. He has added further that on 19-2-1966, a letter was sent to A.B & Sons, Kanpur, whose copy is Ex. Kha-7 through Shiv Adhar asking for the invoice.

7. The prosecution case rested on the testimony of Sri G.R Jain, Drugs Inspector, who had recovered the tablets (PW 1), Sri Rameshwar Das Tandon (PW 2), a partner of the firm of A.B & Sons, Kanpur and Sri Asharam (PW 3), a partner of Ruby Laboratories at Ahmedabad, the name of which firm was printed on the packets of the tablets, Sri Asharam did not offer himself for cross-examination and his evidence was, therefore not taken into account by the trial Magistrate.

8. Sri Jain stated to have obtained four packets of Prednisolone Tablets from the shop of the applicant in his presence on 22-2-1966 and to have sent a part of it to the Director of Central Drugs Laboratories at Calcutta in accordance with rules for its examination and his report. The report of the Director when received, indicated that the tablets were not of standard quality. They were misbranded and wholly adulterated. Accordingly, he instituted a complaint against the applicant on 6-4-1967.

9. Rameshwar Das Tandon, partner of A.B & Sons, Kanpur stated that his Firm maintained a cosmetics shop at Kanpur, which deals in retail and wholesale of medicines. He, however, added that the aforesaid firm never had any dealings with Ruby Laboratories, Ahmedabad and the Prednisolone Tablets manufactured by the aforesaid Laboratories had not been supplied by his firm to Misra Brothers. He filled a copy of a letter addressed by the firm to the Inspector of Durgs, Kanpur (Ex. Ka-14) on this point. Sri Tandon admitted that Shiv Adhar was employed at the relevant period by his firm to book orders from the local dealers but he was not responsible for supplying the medicines against those orders.

10. The trial Magistrate and the learned Sessions Judge on an assessment of evidence reached a conclusion that the prosecution case of the recovery of the aforesaid tablets from the shop of Misra Brothers who were exposing the same for sale is established and the defence trotted out by the applicant that the aforesaid tablets were not for sale and had been supplied to them by A.B & Sons, Kanpur was false and the offence charged against the applicant has been established beyond doubt.

11. Mr. P.C Chaturvedi, learned counsel for the applicant has raised two points in support of this revision. Firstly it is urged that as the sample was not sent to the Director through the court, his report is inadmissible in evidence. Learned counsel contends that in any case as the sample was not sent to the Government Analyst at Lucknow as envisaged u/S. 25(1) of the Act but was dispatched directly to the Director, Central Drugs Laboratories at Calcutta, the applicant has been deprived of his right of challenge which is available to him u/S. 25(4) of the Act. It has been urged further that the evidence led in defence and the circumstances of the case indicated that the aforesaid tablets had been received from A.B & Sons and that they were not for sale. It is urged that the contrary finding given by the courts below is not based on a reasonable appreciation of evidence. I find no substance in these argument.

12. S. 23 of Drags and Cosmetics Act, 1940, inter alia provides that where an Inspector takes any sample of a drug for the purpose of lest or analysis, he shall tender the fair price thereof and intimate such purpose in writing in the prescribed form to the person from whom he takes it and after dividing it into four parts, he shall restore one portion of the sample so divided to that person and shall send forthwith one portion thereof to the Government Analyst for test or analysis.

13. S. 25(1) provides that the Government Analyst to whom a sample of any drug has been submitted for test or analysis, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. Sub-Cl. 3 of S. 25 lays down that the report signed by a Government Analyst shall be evidence of the facts stated therein, and such evidence shall be conolusive unless the person from whom the sample was taken 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. Sub-Cl. 4 of S. 25 reads:

“Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-S. (3) notified his intention of adducing evidence in contravention of Government Analyst's report the Court may, of its own notion or in its discretion at the request either of the complainant or the accused caused the sample of the drug or cosmetic produced before the Magistrate u/sub.-S. (4) of S. 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and r?port in writing signed by, or under the authority of the Director of the Central Drugs Laboratory the result thereof, and such report shall be conolusive evidence of the facts stated there in.”

14. It is, therefore, true that the Inspector taking the sample is, expected to send it initially to the Government Analyst for his analysis and report, and the accused is entitled to challenge the correctness of that report, if it is against him, by inviting an analysis of the sample by the Director of Central Drugs Laboratories. The opening words sub-clause 4, however, indicate that where the sample has already been tested or analysed by the Central Drugs Laboratories, the question of giving an opportunity to the accused for challenging its report does not arise. Under the law both the complainant and the accused can apply to the Court to get the sample analysed by the Central Drugs Laboratory. The applicant could have got it analysed and reported upon by the Central Drugs Laboratories at his expense. That report has been obtained for him by the prosecution at the expense of the State. Therefore, there can be no question of any prejudice being caused to the applicant simply because the Drugs Inspector instead of tending the sample to the public analyst, got it analysed by a higher authority i.e the Central Drugs Laboratories, Calcutta.

15. The other point raised by leraned counsel relates to a question of fact. The label on the packets containing the tablets indicated that they had been manufaovured by Ruby Laboratories, Ahmedabad, Batoh No. 118. Sri Rameshwar Das Tandon stated that his Firm A.B & Sons had never any dealings with the aforesaid firm and that he has not even heard about it. Shiv Adhar did not speak to have supplied the aforesaid tablets from the shop of A.B & Sons to the applicant. Shiv Adhar when examined in Court was not in the service of A.B & Sons. The original letter alleged to have been addressed by the applicant to the Medical Officer of Health was not forthcoming and the receipt register of the Municipal Board was not produced to indicate its receipt by the Health Officer. I am, therefore, satisfied that the concurrent findings of facts arrived at by the courts below that the aforesaid tablets had not been supplied by A.B & Sons and that they were being exposed for sale by the applicant at his shop are based on a reasonable appreciation of evidence.

16. On analysis by the Central Drugs Laboratories, the sample of the tablets was found misbranded and wholly adulterated.

17. Accordingly, the conviction and sentence of the applicant is fully justified.

18. In the result, I find no force in this revision, and it is dismissed. Applicant is on bail. His bail bonds are cancelled. He must surrender forthwith to serve out the sentence.

19. Revision dismissed.