Back
1982 Supreme(All) 228
High Court Of Allahabad
N.N. Sharma, J.
Jagdish Prasad - Appellant
Versus
State Of U.P. - Respondent
Criminal Appeal No. 1863 of 1977
Decided on: March 03, 1982
H.S.N.Tripathi
Non-observance of the statutory provisions regarding sampling and the supply of the Government Analyst's report renders the report inconclusive and deprives the accused of the right to challenge the report.
Headnote:
DRUGS AND COSMETICS ACT - SECTION 23, 25 - SAMPLING PROCEDURE - CONCLUSIVE EVIDENCE - REPORT OF GOVERNMENT ANALYST - SUPPLY OF COPY OF REPORT TO ACCUSED - NON-OBSERVANCE OF STATUTORY PROVISIONS - EFFECT ON CONCLUSIVE NATURE OF REPORT.
Fact of the Case:
Appellant, the proprietor of a medical store, was convicted under sections 27 and 28 of the Drugs and Cosmetics Act for selling adulterated drugs. The Drug Inspector visited the appellant's store, seized samples of Neurobion Merck and injection Strpto, and sent them for analysis. The Government Analyst's report found the Neurobion sample to be partly adulterated and misbranded. The appellant challenged the conviction, arguing that the sampling procedure and the supply of the Government Analyst's report were not done according to the statutory provisions.
Finding of the Court:
The court found that the Drug Inspector did not follow the proper sampling procedure as required by section 23(3) of the Act. The appellant was not present at the time of sampling, and his signature was not obtained on the labels or any writing about the supply of the Government Analyst's report. The court also found that the Drug Inspector did not provide the appellant with a copy of the Government Analyst's report as required by section 25(2) of the Act.
Issues: 1. Whether the sampling procedure followed by the Drug Inspector was in accordance with section 23(3) of the Drugs and Cosmetics Act? 2. Whether the Drug Inspector provided the appellant with a copy of the Government Analyst's report as required by section 25(2) of the Act?
Ratio Decidendi: The court held that the non-observance of the statutory provisions regarding sampling and the supply of the Government Analyst's report rendered the report inconclusive. The court relied on the case of Dharma Deo Gupta v. State, where it was held that the report of the Government Analyst is conclusive only if it is not challenged according to the procedure given in section 25 of the Act. The court also referred to the case of Drugs Inspector v. M/s. Chimanlal and Company, where it was held that the Government Analyst's report can be taken as evidence only if the Government Analyst is examined and the report is obtained according to the prescribed procedure.
Final Decision: The court allowed the appeal, set aside the conviction and sentences recorded by the trial court, and acquitted the appellant of all charges under sections 27 and 28 of the Drugs and Cosmetics Act.
N.N. Sharma, J.
1. This appeal is directed against the order dated 10-8-1977 by Sri P.N. Chaubey, II Additional Sessions Judge, Deoria in Sessions Trial No. 3 of 1975 by which appellant was convicted under section 27 of Drugs and Cosmetics Act No. XXIII of 1940 (hereinafter referred to as the 'Act') and sentenced to two years' rigorous imprisonment; a fine of Rs. 1,000/- was further imposed on appellants in default of payment of fine he was to undergo 3 months simple imprisonment.
2. Appellant was further convicted under section 28 of the aforesaid Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100/- in default he was to undergo simple imprisonment for one month. All the sentences of appellant were ordered to run concurrently.
Prosecution story, briefly stated is that appellant is proprietor of M/s. Jagdish Medical Store, Kasia, district Deoria. It was on 21-10-1972 at about 1 P.M. that Drug Inspector visited the said store. Appellant happened to be present at that store. Drug Inspector served notice Form No. 17 (Ex. Ka-1) on appellant and secured acknowledgment receipt from him (Ex. Ka-2). The sample was divided into four portions and each was sealed according to rules. One sample was made over to the appellant and another, which was subsequently produced in court is Ex. 1. One portion of this sample was sent to Government Analyst, GDL Calcutta for test and analysis under clause (1) of section 23 of the said Act alongwith the letter Ex. Ka-3. Remaining stock of Neurobion Merck from the medical store of the appellant was seized and is Ex.-2 for which receipt Ex. Ka-4 was prepared. This copy of receipt was made over to the appellant. Inspector also sent a letter to ADM Kasia, for custody of seized stock (Ex. Ka-5). He received report of Government Analyst (Ex. Ka-6) dated 20/21-7-1973 which runs as below:-
"Description-Red coloured liquid in amber glass ampule. Gives positive tests for Vitamins B1, B6 and red Boaltar dye identified as Amaranth. Authentic sample of batch No. 26371 obatined from the manufacturer does not contain any red coaltar dye. Assay Found/ml. Claim/ml. Method. Thiamine Hydrochloride : 15 mg. 33 mg. U.S.P. XVIII, p-913 Pyridoxine Hydrochlorides: 35.3 mg. 33 mg. U.S.P. XVIII, p. 166. Cyanocobalamin: 179,82 mg. 333 mg. M.S.P. Reason for declaring the sample as not a standard quality- Remarks J-The sample does not conform to claim in respect of Thiamine Hydrochloride and Cyanocobalamin content. N.B.-The sample is partly adulterated and is considered misbranded under section 17B (c) (ii) of the Drugs and Cosmetics Act."
3. It was on 6-8-1973 that Inspector sent a letter, copy of which (Ex. Ka-8) is on record along with copy of the report Ex. Ka-6 to the appellant to show cause against his prosecution within 28 days from the receipt of the letter. No cause was shown. Inspector seat a letter to Joint Director of Drugs Controller U.P. Lucknow for sanction of prosecution of appellant vide Ex. Ka-9. Ex. Ka-10 is letter from Swasthya Sewa Avam Pariwar Niyojan Nideshak, U.P. to the Assistant Drugs Controller for procuring sanction for prosecution. Drug Inspector submitted complaint in the court of Judicial Magistrate, Kasia. Magistrate committed appellant to the Court of Sessions.
4. In his statement appellant denied the sampling and also alleged that as he failed to oblige Durg Inspector by paying the usual bribe so he has been falsely involved in the case.
Prosecution in support of their case examined Drug Inspector Sri K.S. Selat, Sri Ram Kumar Tewari PW 2 and Sri Kaushal Kishore Srivastava, Drug Clerk in the office of the Chief Medical Officer, Deoria, PW 3. No evidence was adduced in defence.
5. Learned trial judge recorded the conviction and sentences aforesaid.
6. I have heard learned counsel for parties and perused the record.
A perusal of section 23 of the said Act shows the procedure to be pursued by Drug Inspector at the time of sampling:-
"23. Procedure of Inspector (1) wher
