1958 Supreme(All) 60

IN THE HIGH COURT OF ALLAHABAD
A. N. Mulla, J.
DHARAM DEO GUPTA - Appellant
Versus
STATE - Respondents
Criminal Revn. 143 Of 1956
Decided On : 03/27/1958

Headnote:

DRUGS ACT, 1940 - SECTIONS 18(A)(I), 18(A)(II), 27 - MISBRANDING - STOCKING AND EXHIBITING FOR SALE - SUBSTANDARD QUALITY - CONCLUSIVE EVIDENCE - PROCEDURE - SECTION 25(4) - INTERPRETATION - BASIC RIGHT OF ACCUSED TO DEFEND - ARTICLE 21 OF THE CONSTITUTION OF INDIA - SECTION 23 - SECTION 19(3)(A) AND (B) - APPLICANT ACQUIRED DRUG UNDER WARRANTY - NO KNOWLEDGE OR REASONABLE DILIGENCE TO ASCERTAIN SUBSTANDARD QUALITY - DRUG REMAINED IN SAME STATE DURING POSSESSION - APPLICANT PROTECTED UNDER SECTION 19(3)(A) AND (B) - CONVICTION UNDER SECTION 18(A)(I) SET ASIDE - CONVICTION UNDER SECTION 18(A)(II) UPHELD - SENTENCE OF FINE MODIFIED.

Fact of the Case:

The applicant, the Managing Director of a company known as "the New International chemicals Ltd.", was convicted on two charges under the Drugs Act 1940 (Act No. XXIII of 1940). He was held to have contravened the provisions of section 18 (a) (i) as well as Section 18 (a) (ii) of the said Act. He was, therefore, convicted under section 27 of the said Act to nine months rigorous imprisonment and a fine of Rs. 500 on both the counts by the trial court. The appellate court upheld his conviction under both the counts, but set aside the sentence of imprisonment under these, two counts. The applicant came up in revision before the High Court.

Finding of the Court:

1. The applicant was not stocking the ampoules for the purpose of sale, but to meet a provisional contract. 2. The prosecution failed to satisfactorily prove that the recovered ampoules were of substandard quality. 3. The report of the Government Analyst was not obtained according to the prescribed procedure and, therefore, could not be treated as conclusive evidence. 4. The applicant was protected by Section 19 (3) (a) and (b) of the Drugs Act as he had acquired the ampoules from Andrews Chemicals, Calcutta, who had given two warranties for the two consignments which were sent. 5. The applicant did not know and could not with reasonable diligence ascertain that ampoules were of a substandard quality and there was no doubt that these ampoules remained in the same state during his possession. 6. The ampoules were misbranded within the meaning of sub-sections (b), (f) and (g) of Section 17 of the Drugs Act.

Issues: 1. Whether the applicant was stocking and exhibiting the ampoules for sale. 2. Whether the prosecution satisfactorily proved that the recovered ampoules were of substandard quality. 3. Whether the report of the Government Analyst was conclusive evidence. 4. Whether the applicant was protected by Section 19 (3) (a) and (b) of the Drugs Act. 5. Whether the ampoules were misbranded.

Ratio Decidendi: 1. The mere stocking of goods or exhibiting of goods of sub-standard quality is not an offence under Section 18 of the Drugs Act, 1940. 2. The prosecution must prove that the goods were stocked or exhibited for sale and not merely that they were stocked. 3. Section 25(4) of the Drugs Act does not make the Government Analyst the final arbiter on the question of whether the ampoules were of sub-standard quality. 4. The accused has a basic right to defend himself against the charge fevelled against him, and any enactment that takes away this basic right is ultra vires of the Constitution. 5. The report of the Government Analyst is conclusive evidence only if it is not challenged according to the procedure given in Section 25 of the Drugs Act. 6. The applicant was protected by Section 19 (3) (a) and (b) of the Drugs Act as he had acquired the ampoules from Andrews Chemicals, Calcutta, who had given two warranties for the two consignments which were sent. 7. The ampoules were misbranded within the meaning of sub-sections (b), (f) and (g) of Section 17 of the Drugs Act.

Final Decision: The conviction of the applicant on the first charge, namely that he stocked and exhibited for sale these ampoules, was set aside. The conviction on the second charge, namely that the ampoules which were found in his possession were misbranded and they were manufactured for sale at his instance, was upheld. The sentence of fine imposed upon the applicant under the first charge was set aside, but the sentence of fine imposed under the second charge was maintained. If the applicant had fully deposited the fine on the two counts, Rs. 500/- should be returned to him. If the applicant had not deposited any fine so far, he should deposit Rs. 500/- within a period of one month. In default of payment of fine, he shall undergo three months rigorous imprisonment.