The court held that the provisions of Rules 57 and 46 of the Drugs and Cosmetics Act, 1940 are mandatory and must be strictly observed. The court also held that the provisions of the new Criminal Procedure Code apply to appeals filed after the commencement of the Code, even if the trial was pending before the commencement of the Code.

LENTIN J.-The State of Maharashtra has preferred this appeal for enhancement of the sentence passed by the learned Joint Civil Judge and J. M. F. C., Gondia sentencing the respondent to pay a fine of Rs. 300 in default to suffer rigorous imprisonment for one month after convicting him under section 258 (2), Criminal Procedure Code of offences punishable under section 27 (b) read with sections 18 (a) (i) and 18 (a) (ii) of the Drugs and Cosmetics Act, 1940.

2. The respondent is the Proprietor of a shop known as "Jawahar Medical Stores" at Salekasa, a village in Tahsil Gondia. On 18th November, 1970, on an inspection of the respondent's shop, the Drugs Inspector found a stock of 4 dozen bottles of a drug labelled simply, "Santonine (India)", with no other information, to wit, the name of the manufacturer, batch number and so forth. Thereupon the sale of the drug was prohibited and on 21st April 1971 samples were taken. The Public Analyst made his report stating that the sample was not of standard quality, that it was not even Santonine and that the test showed presence of magnesium and sulphate. A report was lodged with the police by the Drugs Inspector. The stock of Santonine in the shop was seized and the Drugs Inspector lodged his complaint against the respondent and his brother, who was present in the shop at the time of inspection by the Drugs Inspector. In the trial Court, the respondent's brother was acquitted. Against the respondent, the learned Magistrate held that the respondent had stocked for sale the drug 'Santonine' which was not of standard quality and was not labelled in the prescribed manner. On that finding, the learned Magistrate convicted and sentenced the respondent as stated in the opening part of this judgment. Hence the present appeal by the State for enhancement of sentence.

3. Mr. Manohar, the learned Counsel appearing on behalf of the respondent urged that this was not a case for enhancement or even conviction, but was a case for acquittal, by reason of breach of certain mandatory rules framed under the Drugs and Cosmetics Act, 1940 (referred to hereafter as "the Act"). He also challenged the maintainability of appeal.

4. Elaborating his first contention. Mr. Manohar invited our attention to Rule 57, which prescribed the procedure for dispatch of sample to the Government Analyst and to Rule 46 which lays down the procedure to be followed on receipt of the sample. Sub-rule (1) of Rule 57 provides that the portion of sample or the container sent by an Inspector to the Government Analyst for test or analysis under sub-section (4) of section 23 of the Act shall be sent by registered post or by band in a sealed packet, enclosed together with a memorandum in Form 18 in an outer cover addressed to the Government Analyst. The provisions of section 23 (4) are not material for the purpose of this judgment. Sub-rule (2) of Rule 57 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Government Analyst separately by registered post or by hand.

5. Rule 46 provides, in so far as is material for this judgment, that on receipt of a package from an Inspector containing a sample for test or analysis, the Government Analyst shall forthwith supply to the Inspector a report of the result of the test or analysis, together with full protocols of the tests or analysis applied. It was the grievance of Mr. Manohar that the provisions of Rules 57 and 46 have been breached in this case with the result that the order of conviction and sentence passed by the learned Magistrate should be set aside and the respondent should be acquitted.

6. There is considerable force in this contention of Mr. Manohar. Coming to Rule 57 (1) and (2), on 21st April 1971, the sample was collected and on 26th April 1971, was forwarded to the Government Analyst. How it was done is not known. It is not disputed that in this case, if at all the requirements of Rule 57 (1) and (2)