The appellant who is manager of the show rooms of Messrs. Spencer and Company, Limited, Madras, has been convicted by the Chief Presidency Magistrate under rule 81(4) of the Defence of India Rules read with clause 11 of the Drugs Control Order, 1943, and has been sentenced to a fine of Rs. 5,000, and in default to two months’ rigorous imprisonment.

The case against the appellant in brief is this: On the 10th October, 1945, a tin of Glaxo was needed for a sick girl named Rajam aged one year. P.W.2 who was a neighbour was approached by the’ girl’s father. P.W.2 made enquiries in the market, but as he was not able to get it and on learning that there were stocks at Messrs. Spencer and Co., he approached a medical practitioner, Dr. A. Narasinga Rao (P.W.1) and obtained from him a medical certificate, Ex. P-1. Ex. P-1 merely states without mentioning the name of the parent of the child or even the fact that it was required for a child, that Glaxo and Glucose-D were essential as diet for P.W.1’s patient. It was not mentioned in that certificate that the patient was a child one year old. P.W.2 who is a clerk in the office of the Special Assistant Commercial Tax Officer went with P.W.3, the Special Assistant Commercial Tax Officer himself, to Messrs. Spencer and Co., at about 3 p.m. P.W.3 remained outside while P.W.2 went in and met the accused. The accused is admittedly a European who is employed in Messrs. Spencer and Co., and is not a salesman at the counter but is occupying a higher position as manager of the show rooms. Presumably he is not conversant with Tamil except knowing a few simple words. P.W.2 says that he showed the medical certificate, Ex. P-1 to the accused and asked him for a tin of Glaxo. According to P.W.2, the accused asked him merely whether the certificate was’ addressed" to Messrs. Spencer and Co., and on his reply in the negative the accused told him in Tamil, "No. Go." P.W.2 admittedly spoke to the accused in Tamil although he knew English fairly well, being a clerk in a public office. Immediately after obtaining the negative reply from the accused, P.W.2 went to P.W.3 who was stationed just outside, and both of them returned to the accused, and P.W.3 questioned the accused why he had refused to sell a tin of Glaxo to P.W.2. P.W.3 disclosed to him his official capacity, and thereupon the accused informed him forthwith that he had refused to sell for two reasons, namely, that the age of the patient was not given in Ex. P-1, and the certificate was not addressed to Spencer and Co. The third reason which the accused gives that he did not understand the Tamil words which were spoken by P.W.2 was not according to P.W.3 given out to him then. Immediately after this statement, P.W.3 checked the stock of Glaxo in the shop and found that there was substantial stock available. He also examined P.W.2 and the accused and recorded their statements, Exs. P-2 and P-3. In his statement, Ex. P-3, the accused gave out that after seeing the doctor’s certificate produced by P.W. 2 he refused to supply because the age of the patient was not given therein and the certificate was not addressed to Messrs. Spencer and Co. Upon these facts the accused was prosecuted under clause 11 of the Drugs Control Order read with rule 81(4) of the Defence of India Rules.

Learned counsel for the appellant has raised a preliminary objection of a technical nature. He contends that the charge is defective and that in consequence of the error in the charge he has been substantially prejudiced-. The charge does not state that the offence was committed by Messrs. Spencer and Co., and that the accused being the manager of the company was being charged as such under the Drugs Control Order.

Clause 4 of the Drugs Control Order provides that no person shall cany on the business of a retailer at any place in British India except under and in accordance with the conditions of a valid licence. Under clause 7 the licensing authority may specify in the lice