( 1 ) THE applicant has been convicted under Section 18 (a) (i) and (ii) of the Drugs Act. A municipal Medical Officer of Health took a sample; of a medicine called Gripex on 10-11-1955 from the shop of the applicant and sent it for analysis. The Government Analyst after analysis gave has report on the prescribed form that it was substandard but did not give the protocols of the test applied by him. The report was received in evidence against the applicant and on its basis he has been convicted. The Government analyst himself was not examined as a witness to prove the tests applied by him.

( 2 ) ON the date on which the Municipal Medical Officer of Health took the sample, the Drugs Act of 1940 stood amended by the Act of 1955. Section 21 of the Act as it stands now empowers a state Government to appoint such persons, as it thinks fit "having the prescribed qualifications, to be Inspectors for the purposes of this Chapter within such local limits as it may assign to them respectively". Under Section 33 the Central Government has been empowered to make rules prescribing qualifications of Inspectors. In exercise of that power, in June, 1957, the Central Government made the Drugs Rules. Rule 49 prescribes the qualifications for an Inspector, it is subject to three provisos, the last one being that for the purposes of inspection of shops in any specified area any officer of the medical or public health department, who is a graduate in science, may be appointed an ex-officio Inspector. No appointment has" been made by the State of Uttar Pradesh after 1955. Prior to the amendment of the Act in 1955, the power to prescribe qualifications for an Inspector vested in the State Governments and in exercise of that power the State of Uttar Pradesh had made Rule 49 prescribing qualifications for an Inspector. Those qualifications were exactly the same as are mentioned in Rule 49 of the Drugs Rules made in 1957, with this difference that in the last proviso it was said that for the purposes of inspection of retail shops, any officer of the public health department, who was a graduate in science, could be appointed an ex-officio Inspector. Accordingly in 1954 the State Government had issued a notification appointing all officers of the public health department (they were all graduates in science) as ex-officio Inspectors for inspection of retail shops. No appointment of an Inspector has been done by the State Government subsequently. The Municipal Medical Officer of Health, who took the sample in the present case, is an officer of the public health department and graduate in science and was appointed an Inspector for inspection of retail shops within his district. It is not known whether the shop of the applicant is a retail shop or a wholesale shop; there is no evidence on the record. If it is a wholesale shop, the municipal Medical Offfcier of Health was not empowered even to inspect it. Section 22 of the act lays down that subject to any Rules made by the Central Government in this behalf, an inspector may take samples of any drug, but if an Inspector is appointed for a purpose other than that of taking samples, he is not an Inspector within the meaning of this provision of Section 22. The word inspector occurring in the beginning of Section 22 means an inspector with reference to the particular power that is sought to be exercised; a person who is appointed an Inspector for the exercise of a particular power does not become an Inspector within the meaning of Section 22 for the exercise of any other power mentioned in Sub-section (1 ). Under Section 33 fn) the Central Government has the power of regulating the powers and duties of Inspectors and in exercise of this power it has made Rule 51 laying down that an Inspector authorised to inspect premises licensed for the sale of drugs must inspect all establishments licensed for the sale of drugs at least twice a year and procure and send for test or analysis, if necessary, samp