Asthana, J.

[1] The applicant Kasim Bhai is the proprietor of the firm Sattar Bhai Kasim Bhai Chemists and Druggists, in Bharthana, District Etawah. He was convicted by a first class Magistrate of Etawah under Section 27 of the Drugs Act, 1940; for contravention of Sub-rules (2) and (9) of Rule 65 of the Drugs Rules and sentenced to a fine of Rs. 200/-, and also for contravention of Rule 110 to a fine of Rs. 50/-. His conviction was maintained by the learned Additional Sessions Judge of Etawah but the sentence of fine of Rs. 200/- for contravention of Sub-rules (2) and (9) of Rule 65 was reduced from Rs. 200/- to Rs. 100/-The sentence of fine of Rs. 50/- for contravention of Rule 110 was, however, maintained. He has now come up in revision to this Court.

[2] It appears that the applicant has got a licence for the sale of medicines. The shop was inspected twice by the District Medical Officer of Health, once on 19-5-1953 and again on 30-5-1953, It was found that the applicant was in possession of medicines described in Schedule H of the Act but he had not engaged any qualified person for the preparation and supply of such medicines as was required under the Act.

It was also found that he had in his shop for sale eight tubes of date-expired penicillin ointment in contravention of Rule 110 framed under the Act. He was, therefore, prosecuted for contravention of the above Rules.

[3] The charges which were framed against him were as follows :

"(1) That you on or about the 19th day of May 1953 at Bharthana were found in possession of Schedule H Drugs stocked for the purpose of sale without having a qualified man under whose supervision sale of such drugs could be done, and thereby committed an offence punishable under Section 27 of the Drugs Act read With Rules 65(2) and 65 (9) framed thereunder.

"(2) That you on or about the 31st day of May 1953 at the same place were found in possession and exhibiting for sale eight tubes of date-expired penicillin ointment, and thereby committed an offence punishable under Section 7 of the Drugs-Act read with Rule 110 framed thereunder."

[4] The prosecution examined Sri V.N. Tiwari, District Medical Officer of Health, in support of the case. The accused admitted that he had a licence to deal in non-biological medicines only and that he had in stock Schedule H drugs for the purpose of sale on 19-5-1953 without having any qualified person who could sell them. He also admitted that on 31-5-1953 date-expired penicillin ointment was recovered from his shop. On the above facts both the Courts below found the charges had been established against the applicant.

[5] It was contended before me on behalf of the applicant that Sub-rules (2) and (9) of Rule 65 were not applicable to the present case and therefore the conviction of the applicant for the contravention of those Sub-rules was bad in law and could not be maintained. Sub-rule (2) provides that :

"the supply, otherwise than by way of wholesale dealing, of a drug specified in Schedule E or any preparation containing any such drug, and of any drug supplied on the prescription of a registered medical practitioner, shall be effected only by or under the personal supervision of a qualified person." Sub-rule (9) provides that :

"substances specified in Schedule H, and preparations containing such substances, shall not be sold by retail except on and in accordance with a prescription of a registered medical practitioner.

"Provided that no prescription shall be required for sale or supply to a registered medical practitioner, hospital, infirmary, or an institution approved by an order of a licensing authority,"

[6] It will appear from the above provisions that what is prohibited by them is the supply or sale of particular kinds of medicines except under the direction and personal supervision of a qualified person. There is nothing in these Sub-rules which lays down that such medicines will not be stocked unless a qualified person is engaged in the shop. The