JUDGMENT - SHAH, J.:

The appellant was convicted by the Presidency Magistrate, 27th Court, Mulund, Bombay, of an offence under section 18(c) read with section 27 of the Drugs Act, 1940, and sentenced to pay a fine of Rs. 250/- and in default of payment of fine to suffer simple imprisonment for one month. Against the order of conviction and sentence this appeal has been preferred.

(2) C. N. Patel, Drugs Inspector, received information on 19th October 1956 that the appellant who was trading in the name of "Vivigan Products Corporation" at Kandivli was manufacturing drugs without obtaining a licence under the Drugs Act, 1940. Patel then lodged a complaint with the Kandivli Police Station against the appellant for contraven-tion of S. 18(c) of the Drugs Act. The Police Officer raided the place occupied by the appellant and attached under a panchanama certain articles found on the premises. At that time the son and daughters of the appellant were also found present and taking part in the manufacture of Vivigan Ointment and Menthostrine Pain Balm. The appellant was arrested on 20th October 1956 and on 22nd February 1957 a charge-sheet was filed against the appellant, his son and his two daughters for offences under sections 18(a) (i), 18" (a) (Hi) and 18(c) read with section 27 of the Drugs Act, 1940 as amended by section 12 of the Drugs Act, 1955. With the charge-sheet was lodged in court a complaint addressed to Magistrate and signed by Patel. The Presidency Magistrate, 27th Court took cognizance of the offences and framed a charge against the appellant, his son and two daughters on the assumption that the offences were to be tried in the manner of a warrant case under the procedure prescribed by S. 251A of the Criminal Procedure Code as amended by Act 26 of 1955. After the evidence of the witnesses for the prosecution was recorded, the Prosecutor appearing on behalf of the State applied that as the procedure followed by the Magistrate was inappropriate a flew charge be framed against the accused. The learned Magistrate acceded to the request. He held that the procedure prescribed by S. 251A was inappropriate in view of the provision contained in S. 32 of the Drugs Act. The learned. Magistrate then considered the evidence led by the prosecution ignoring the charge which was initially framed, and held that, a prima facie case was made out against the appellant and that no case was made out against the other three accused. He, therefore, framed a fresh charge for the offence under section 18(e) read with section 27 of the Drugs Act, and proceeded to try the appellant.

(3) The learned Magistrate held that the Vivigan Ointment and Menthostrine Pain Balm were "drugs" within the meaning of the Drugs Act, 1940 and that the prosecution initiated against the appellant was not "bad" even though under S. 33 of the Act no rules were framed by the Central Government at the date of the offence under the Drugs Act as amended by Act 11 of 1955. On the view taken by him, the learned Magistrate convicted the appellant and sentenced him as stated earlier.

(4) In this appeal Mr. Gordhandas, who appears on behalf of the appellant, has raised four contentions: (i) that the learned Magistrate had no jurisdiction to entertain the proceedings against the accused because it was not instituted by an Inspector under the Drugs Act; (ii) that even though under section 18(c) of the Drugs Act the manufacture for sale, or sale, or stocking or exhibiting for sale or distribution of any drug, except under, and in accordance with the conditions of, a licence issued for such purpose was penalised, no rules having been framed for the issue of a licence under the Drugs Act 1940 as amended by Act 11 of 1955, the appellant could not be convicted of manufacturing for sale a drug without a licence; (iii) that there was no evidence on the record to show that Vivigan Ointment was a "drug" within the meaning of the Drugs Act, 1940; and (iv) that the charge framed against the appe

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