The sale of a misbranded drug is an offence under Section 27 of the Drugs Act, 1940.

( 1 ) THE appellants, S. Dutta and Bhupati Naha, were tried by a learned Presidency Magistrate, Calcutta. They were both convicted under Section 420, read with Section 120b of the Indian Penal Code as also under Section 27 of the Drugs Act, 1940. Appellant S. Dutta was also convicted under Section 420 of the Indian Penal Code. In respect of the offence under Section 420 read with Section 120b of the Indian Penal Code, appellant Bhupali Naha was sentenced to undergo rigorous imprisonment for 8 months. He was also sentenced to rigorous imprisonment for 8 months in respect of his conviction under Section 27 of the Drugs Act. The two sentences imposed upon him were, however, ordered to run concurrently. The other appellant Section Dutta was sentenced to rigorous imprisonment for 3 months in respect of each of the three convictions, but the sentences were directed to run concurrently.

( 2 ) APPELLANT Naha was, at all material times, the proprietor of Messrs. Chandemerdaya and Co. , while appellant Dutta, who is a nephew of Naha, was the proprietor of Messrs. Bhabani Medical Stores. Dutta was also a salesman of Chandemardaya and Co. The said charges were the outcome of the appellants' dealings in a drug described upon the bottle containing the drug as"oil Olive. blended and bottled by Chandemardaya and Co. , with olium olive of Italy. " the drug when tested and / or analysed was found to contain a per centage of arachis oil. Upon each of the bottles containing the drug appeared "harries Hart and Co. Ltd. , Blackley, Manchester. "

( 3 ) THE charge of conspiracy against both the appellants was to the effect that they were parties to a criminal conspiracy to cheat divers persons by selling to them misbranded drug, to wit, bottles of alleged olive oil representing them to contain olive oil of medicinal quality, which they would not have bought had they known the same to be misbranded drug. The charge of cheating against appellant S. Dutt was to the effect that on or about the 7th day of January, 1953, he cheated D. R. Mehta, P. W. 4. by selling six bottles of the said misbranded drug, falsely representing them to contain genuine olive oil of medicinal quality. The third charge against each appellant was for contravention of Section 18 (a) (i), (ii) and (iii) and Section 13 (c) read with Section 17, (a), (c) and (e) of the Drugs Act, 1940 and with Rule 62 (2 and 3) of the Bengal Drugs Rules, 1946.

( 4 ) THE prosecution case against the appellants was as follows: On or about April 27, 1951, Bhupati Naha, as proprietor of Messrs. Chandemardaya and Co. , applied for license to sell drugs. This application was rejected. On or about February 5, 1952, appellant S. Dutta, as proprietor of Bhabani Medical Stores, applied for a similar license. No order on the application has yet been passed. On or about December 18, 1952, Bhupati Naha applied for a drug manufacturing license. This application was rejected on or about March 17, 1953. At no material time did either of the appellants possess either a license to sell drugs or a license to manufacture drugs. On or about April, 1, 1953, an Inspector of Drugs named T. Rai Mahasay seized some 7 bottles of the offending drug when appellant S. Dutta was in the act of selling some 12 bottles of the said drug to one Harilal Mehta, proprietor of Bharatiya Medical Stores of 55/73, Canning Street, Calcutta. The samples taken of this drug thus seized were in due course forwarded to the Government Analyst for test which revealed that the drug contained a per centage of arachis oil. It was also found that the alleged olive oil did not conform to B. P. specification. Divers attempts were made to serve each of the appellants with the analyst's report of the said test, but the appellants refused it. After compliance with certain formalities, the Drug Inspector filed a complaint on or about August 14, 1953.

( 5 ) THE defence of each of the appellants was that he had not conspired with anyone to c