J.G. Chitre, J.

The petitioners are hereby assailing the correctness, propriety and legality of the order which has been passed by CJM, Dhar in the matter of Cr. Case No. 524/85 whereby he has convicted the petitioners for an offence punishable u/s 18(a)(i) read with Section 27(d) of the Cosmetics and Drugs Act, 1940 (hereinafter referred to as Act for convenience) which has been confirmed by the Sessions Judge Dhar in the matter of criminal appeal No. 229/1997.

The facts which need to be narrated for the purpose of unfolding the matter are as mentioned hereunder:

On 26-6-1984 Drug Inspector Shri Deo Kumar Barjatya visited the shop styled as M/s Ajay Khatri Medical Hall, Dhar, and purchased capsules of Vitriplex-C-Forte, batch No. 127, manufactured in the month of April 1984 and having the expiry date as October 1985 for analysis as he suspected that it was a drug below the standard prescribed under the provisions of the Act and the rules made thereunder. Those capsules were collected by the Drug Inspector in 4 parts in accordance with the rules framed under the provisions of the Act in presence of Panch witnesses and those samples were despatched by him to government analyst, Bhopal by registered parcel. He received the report of government analyst which opined that the said samples were deficient to the prescribed quality and were not upto the standard prescribed by the provisions of the Act. After that a notice was issued to the proprietor of M/s Ajay Khatri Medical Hall by the Drug Inspector on 11-12-1984 and he was asked to disclose the name of person from whom he had purchased the said drug. In response to that, the owner of M/s Ajay Khatri Medical Hall informed the Drug Inspector by his letter dated 3-1-1985 that the said drugs were purchased by him from M/s Vishal Pharmaceuticals, Indore on 18-6-1984. After receiving that information, the Drug inspector sent one of the samples to the present petitioner Vishal Pharmaceuticals, Indore along with the report of the Government analyst. Thereafter the petitioners were prosecuted in the Court of CJM Dhar for an offence punishable under the provisions of Section 18(a)(i) read with Section 27(d) of the Act.

The prosecution examined necessary witnesses to establish the guilt of the petitioners. Petitioners also examined some witnesses in defence. The learned Magistrate after appreciating the evidence on record held that the petitioners were guilty of committing an offence punishable under the provisions of the Act for which they are prosecuted. The petitioners preferred an appeal in the Sessions Court Dhar against the said order of conviction and sentence challenging its correctness, propriety and legality. The learned Sessions Judge, Dhar heard the said appeal finally and dismissed the same by maintaining the order of conviction and sentence passed against the petitioner by the Chief Judicial Magistrate, Dhar and the judgments and orders which were passed by the Courts below mentioned hereinabove, have been assailed by this revision petition by the petitioners.

Shri S. C. Bagdia, senior advocate instructed by Mrs. S. Waghmare challenged the said judgments of Courts below convicting and sentencing the petitioners on following grounds:

(i) That the right of the petitioners accused u/s 25 of the Act has been infringed on account of the default on the part of the prosecution when there was no default on the part of the petitioners.

(ii) The drug inspector did not follow the provisions of rules which are mandatory and it adversely effected the report of government analyst,

(iii) The government analyst did not follow the provisions of rules which are mandatory and, therefore, the defence of the petitioners was prejudiced.

(iv) The conviction and sentence is bad in law as the same is defective.

He prayed that the said order of conviction and sentence passed by the trial Court and which has been confirmed by the appellate Court be set aside and petitioners be acquitted.

Shri Prakash Verma,