The court held that the sentence imposed by the trial court for the offense under Section 27 A (ii) of the Act of 1940 was excessive and that the appellant was entitled to the benefit of probation under Section 4 of the Act of 1958.

M.N. Bhandari, J.

By this appeal, a challenge is made to the order dated 22.01.1993 passed by the Additional District and Sessions Judge Bayana, District Bharatpur in Sessions Case No.1/1991. The appellant was convicted for the offence under Section 27 A (ii) and 28 of the Drugs and Cosmetics Act, 1940 (hereinafter 'the Act of 1940'). He was sentenced to undergo rigorous imprisonment for 2 years and a fine of Rs. 2,000/-, in default of payment of fine to further undergo 6 months simple imprisonment for offence under Section 27 A (ii). The rigorous imprisonment for 6 months and a fine of Rs. 500/- and in default of payment of fine to further undergo one month's simple imprisonment was imposed for offence under Section 28 of the Act of 1940. Both the sentences were ordered to run concurrently.

2. Learned counsel for the appellant submitted that a complaint was made against the accused for administering allopathy drugs though he was not authorized being a Ayurvedic Chikitsak. The inspection was made and drugs were recovered from the appellant. No evidence came to prescribe those drugs or of sale. It was not a case of an adulteration of the drugs, thus the appellant was tried for the offence under Section 27 A (ii) and 28 of the Act of 1940. The evidence was laid by the parties and the court below found that the appellant was not authorized to keep allopathy drugs in absence of the license and he has further failed to disclose its source. The conviction was made after considering the evidence on record with sentence of rigorous imprisonment for two years with a fine of Rs. 2,000/- for the offence under Section 27 A (ii) of the Act of 1940, though maximum punishment provided therein is of one year. Thus, the impugned order deserves to be set aside on the aforesaid ground itself. The fine provided therein is also Rs. 1,000/- but the court below has imposed fine of Rs. 2,000/-. The sentence of six months with fine of Rs. 500/- was imposed for the offence under Section 28 of the Act of 1940, but the court below failed to extend the benefit of probation as provided under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act of 1958').

3. Learned Public Prosecutor has contested the appeal. He submits that the conviction for the offence under Sections 27 A (ii) and 28 of the Act of 1940 has not been challenged while pressing the arguments. The challenge is made to the sentence for offence under Section 27 A (ii) of the Act of 1940. The maximum punishment provided therein is only of one year sentence with maximum fine of Rs. 1,000/-. The prayer to extend the benefit of Section 4 of the Act of 1958 may not be accepted. The appellant's conduct is such which does not entitle him to get the benefit under the Act of 1958. The appeal may be disposed of with the aforesaid.

4. I have considered the rival submissions made by the counsel for the parties and perused the record.

5. The appeal was preferred to challenge the order dated 22.01.1993 convicting the appellant for the offence under Sections 27 A (ii) and 28 of the Act of 1940. The finding with regard to the conviction has not been challenged. However it has been projected that no allegation for adulteration exist and otherwise the appellant was not found selling or prescribing drugs. He was found in possession of the drugs, that too a small quantity. In view of the above, no interference in the order of conviction is made out.

6. The sentence is however contrary to the provisions of Section 27 A (ii) of the Act of 1940. For ready reference, the said provision is quoted as under:-

“27A. Penalty for manufacture, sale, etc., of cosmetics in contravention of this Chapter.-

(i) .........

(ii) any cosmetic other than a cosmetic referred to in clause (i) above in contravention of any provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupe