Mohan Nair

Swamikkannu, J.—This is a Criminal Revision Case filed by the accused Mohan Nair in C.C.N. 734 of 1978 on the file of the Court of the learned Sub-Divisional Judicial Magistrate, Poonamallee, against the judgment dated 14.11.1983 in C.A. No. 4 of 1983 on the file of the Court of the learned Sessions Judge, Chengalpattu Division, confirming the conviction and sentence of the revision-petitioner herein by the trial court and dismissing the appeal. The trial Court found the revision-petitioner herein guilty under S. 27(a) (ii) and 27A of the Drugs and Cosmetics Act, 1940 (Act 23 of 1940) hereinafter referred to as ''Act'', convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 500/- , in default to undergo rigorous imprisonment for one month under S. 27(a)(ii) of the Act, and also sentenced the revision-petitioner to pay a fine of Rs. 30/- in default to undergo rigorous imprisonment for one month under S. 27A of the Act. The trial Court found that the prosecution has established its case that the revision-petitioner had contravened the pro-Vision of S. 18 and 18A of the Act. The lower Appellate Court also confirmed the above convictions as well as the sentence imposed by the trial court on the revision-petitioner.

The complainant, Shafee Ahamath, Drugs Inspector, Conjeevaram Range, Conjeevaram/the respondent herein filed the complaint before the trial court under S. 18 and 27 of the Act, inter alia, stating therein as follows:

The complainant is empowered under S. 32 of the Drugs and Cosmetics Act, 1940 to file this complaint.

The accused is a person who had been stocking, for sale and distribution allopathic drugs without a licence.

On 11.6.1978, the complainant inspected the premises of the accused. Stocks of allopathic drugs were found stocked for sale. Since the accused did not possess a drug licence, the drugs were seized.

The seized drugs were produced before the Hon''ble Court on 13.6.78 and permission was obtained to retain them. A memo was issued to the accused to produce the purchased bills and to name the person from whom the drugs were acquired. No satisfactory reply was received.

Thus the accused has contravened (1) S. 18C of the Drugs and Cosmetics Act, 1940, punishable under S. 27(a)(ii) of the Act for stocking for sale and distributing drugs without a licence.

(2) S. 18A of the Drugs and Cosmetics Act, 1940-punishable under S. 27A of the Act for not having disclosed the name of the person from whom the drugs were acquired.

It is prayed that the Honourable Court may be pleased to take the complaint of file and dispose it according to law.

It is also prayed that if the accused is found guilty and convicted, to pass order under S 35 of the Drugs and Cosmetics Act, 1940 for the publication of the conviction in the newspaper,

Sd/B. Shafee Ahamath, Drugs Inspector Kancheepuram Range, Kancheepuram.

The names of the following persons are mentioned as witnesses in the abovesaid complaint:

B. Shafee Ahamath, Drugs Inspector, Kancheepuram Range, Kancheepuram.

D. Julien, S/O; J. Duraiswamy, 1.D, Bazaar Street, Kunrathur, Madras 69.

(3) A.V. Thomas, S/O. Frenchu Verghese, 1.B, Nattam Main Road, Kundrathur, Madras 69.

The prosecution had examined Shafee Ahamath, Drugs Inspector as P. W. 1 He has stated in his evidence that he is the Drugs Inspector, Kancheepuram, and that Kundrathur is within his jurisdiction. On 11.6.1978, he has inspected the hospital of the revision-petitioner situate in No. 5, Thulukkar Street, and at that time, it was about 11 a.m. During that time, he found allopathic medicines kept in the hospital of the revision-petitioner. The revision-petitioner had no licence for keeping those medicines. The revision-petitioner is a homeopath medical practitioner. In the presence of two witnesses, P.W. 1 had seized 43 items of allopathic medicines from the hospital of the revision-petitioner under Ex. P1 mahazar. The copy of Ex. P1 mahazar was given to the revision-petitioner, and an acknowledgment has also been obtained with respect to the same. Ex. P2 is the notice given under Form No. 6 to the revision-petitioner for seizing the medicines. Ex. P3 is the statement given by the revision petitioner on that date. Ex. P4 is the permission obtained by P.W. 1 on 13.6.1978 from the trial court for keeping the seized medicines with him. Ex. P5 is the copy of the show-cause notice sent to the revision-petitioner on 20.6 1978. Ex. P6 is the reply given by the revision-petitioner for the said notice. P.W. 1 has further stated, in his evidence that since Ex. P6 reply was not satisfactory, he obtained Ex. P7, sanction and filed the complaint before the trial court under S. 18A and 18 (c) of the Act on 17.10.1978. P.W. 1 has also stated in his chief examination that M.O.1 to M.O. 43 are the material objects that he seized from the hospital of the revision-petitioner under Ex. P1.

In his cross-examination, P.W. 1 had stated that he had also inspected the house of the revision-petitioner on 11.6.1978. By keeping M.O.1 to M.O.43, one can deal in selling the same. P.W. 1 denied the suggestion that M.O. 4 bottle contained only filtered water; and that it does not contain "Novacin" injection, as mentioned in the label affixed on the bottle. Since the medicines are of different types, it cannot be said that they have been kept for the personal use of a person. P.W. 1 has also stated that there are no rules for a patient keeping particular variety of medicine. P.W. 1 has further stated in his cross examination that there is no necessity for a patient to keep bills for the medicines kept by him. No doctor who practises allopathic medicines gives receipt for the medicine he gives. P.W. 1 has further stated in his cross-examination that M.O.1 to M.O.42 are all allopathic medicines.

When P.W. 1 was recalled and further cross-examined, he has stated that in a clinic, a doctor used to examine his patients. P.W. 1 has also stated that for a shop, at least Rs. 1,000/- worth of medicines are required. The medicine seized from the revision petitioner is worth above Rs. 50. He denied the suggestion that the medicines seized from the revision-petitioner is less than Rs. 20/- in value. P.W. 1 has further stated in his cross examination that a patient can keep the quantity of medicines prescribed by the doctor. P.W. 1 has also admitted in his cross-examination that it is possible, that the medicines in this case are used by the accused and the members of his family. P.W. 1 has further stated that the revision-petitioner kept the medicines in this case only for sale. According to P.W. 1, even if one tablet is sold, it is sale. P.W. 1 has further stated in his cross-examination that with the vial, several persons can be injected by a doctor--

. P.W. 1 has also admitted in his cross-examination that it is possible that the vials were purchased and kept, for injecting the same to the members of the family of the revision-petitioner. He has also admitted in his cross-examination that members of the family of the revision petitioner can use several varieties of medicine. P.W. 1 has denied the suggestion that he has foisted a case against the revision-petitioner.

Along with the complaint filed by P.W. 1 before the trial court on 17.10.1978, the following cash Bills and prescriptions are seen appearing (pages Nos. 37 to 52) in the records sent by the trial court : [Omitted--Ed.]

Ex. P.1 is the mahazar list, and the same is as follows : (Omitted--Ed.)

Ex. P2 is the receipt for stock of drugs seized under S. 22(c) of the Drugs Act, 1940 issued by P.W. 1 on 11.6.1978, which contains the acknowledgment of the revision-petitioner for the receipt of the memo from P.W. 1.

Ex. P3 is the reply dated 11-6-1978 given by the revision-petitioner to the Drug Inspector, Chingleput District, Chingleput which reads as follows:

....As per your memo No. 710 dated 11.6.1978 seized the medicines and other items from my dispensary, I would like to note the following explanations to your kind notice.

I am a registered homeopath and practising only homeopathy drugs. The medicine item No. 1 is using for my wife who has got tubectomy on 22.11.1977 and after operation, the doctor advised to continue some medicines like items Nos. 2, 12, 13, 19, 20, 21, 22, 23, 27, 28, 29, 32, 33, 35, and still she is continuing.

Item No. 4 is not medicine. It contains only distilled water.

Item Nos. 15, 17, 21, 25, 26, 31, are prescribed by a doctor to Sent. Virudthambal, a patient who has also got tubectomy operation along with my wife at G.H.

Item-No. 5, 6, 8, 9, 10, 11, 14, 16, 18, 34, 36, 37, are kept for the use of Dr. Subbiah, M.D., who has practised in my clinic about 2 years ago and since I am keeping as it is, as he left my clinic when he got a job in G.H. at Madras.

Item Nos. 39, 40, 42, are used by me as I have to attend some emergency cases.

The drug which we were using for my wife was purchased from M/S. Venkateswara Medicals indifferent times.

Thanking you, Yours faithfully, Sd/G. Mohan'' 11-6-78/2:15 p.m.

Ex. P4 is the petition filed by P.W. 1 before the trial Court on 13.6.1978 praying for keeping the drugs seized, in his custody till investigations are over. The trial Court made an order on this petition under S. 23(5)(b) of the Act as follows:

The drugs seized by the Drug Inspector, Kancheepuram Range, on 11-6-1978 from one Thiru G. Mohan Nair of Kunnathur produced today. They are directed to be kept under the custody of drugs Inspector, Kancheepuram Range and to be produced at the time of trial of the case. Sd)... 13.6.78. Sub Divil. Judl. Magistrate, Poonamallee.

Ex. P5 is the notice dated 20.6.1978 sent by P.W. 1 the Drug Inspector calling for explanation regarding the conviction of the provisions of the Act by the revision-petitioner. Ex. P.5 reads as follows:

During the inspection of your premises at No. 5, Thulukka Street, Kunrathur, Madras-69, on 11-9-78 it was observed that you were stocking allopathic drugs, mentioned in the mahazar, for distribution. You do not possess a drug licence to stock drugs for distribution nor you are a registered Medical Practitioner as defined under Rule 2 (cc) of the Drugs and Cosmetics Rules, 1945. Hence you are directed to show cause as to why action should not be taken against you for contravening S. 18(c) of the Drugs and Cosmetics Act, 1940, for having stocked for distribution the Drugs mentioned is the mahazar, without a drug licence.

Further as per S. 18A of the Drugs and Cosmetics Act, 1940, you are required to disclose the following particulars:

(1) Name and address of the firm/person from whom you have acquired the drugs;

(2) Invoice/Bill No. and date under which you have purchased the drugs.

(3) Since some of the drugs are stated to have been advised for your wife, and prescription of the doctor should be sent.

Your reply, if any, together with the above particulars should reach the undersigned Drugs Inspector within seven days from the date of receipt of this memo, failing which it will be presumed that you have no reply to this memo arid further action will be taken in the matter without any further notice to you.

Sd/B.S.A. 20.6.78. D.I., KPM". Range.

Ex. P6 is the explanation dated 28.6.1978 given by the revision petitioner herein for the memo (Ex. P5) issued by P.W. 1. Ex. P6 reads as follows:

With reference to the above cited letter, I would like you to note the following as my explanation for your kind disposal.

Item No 5, 6, 8, 9, 10, 11, 14 and 16 as per your mahazar dated 11.6.78 was prescribed by Dr. I. Subbiah, M.D., (Moscow) to Mrs. T.M. Jambulinga Mudaliar of Palla Street, Kunrathur, as she was suffering from Asthma for a long period and I am giving such medicines to her as per instruction for emergency.

The address of Dr. Subbiah is:

Dr. I. Subbiah, M.D., (Moscow), Assistant Surgeon. G.H. Palani, who was practising in my dispensary some lime back.

I am enclosing some bills for certain medicines which are using for my family.

Prescription for my wife was lost and we are not keeping any bills or prescription for my wife because I never expect that such things have to be produced in later stage. My wife had her tubectomy and still suffering like Odema, stomach pain and suffocation and diarrhoea etc., and continuing the treatment.

As I have no convenient place to keep the drugs at horns because my rented room is a small one and using only for kitchen purpose and staying at the dispensary at night. Hence I used to keep ail my family drugs in my dispensary.

If it is against the rules, kindly excuse me for the same and hereafter I won''t repeat it and 1 assure you, Sir, that I will never keep such items in my dispensary and once again I apologise for having keeping the medicines in dispensary.

Thanking you. Yours faithfully,

Sd/G. Mohan, 28.6.78.

Ex. P7 is the sanction accorded by the Joint State Drugs Controller, Madras, on 4.9.1978, to P.W. 1 the Drugs Inspector, Kancheepuram Range, to prosecute the revision-petitioner for violation of S. 18(c), by having stocked certain drugs for sale and distribution without the requisite licence under the Drugs and Cosmetics Act, and for violation of S. 18A, by not having disclosed the name and address of the person from whom the said drugs were acquired.

When questioned by the trial court on 3.7.1982 regarding the contents of the complaint and the documents relied on by the prosecution, the revision-petitioner herein denied the offence, and stated as follows:

On 6.7.1982, when the charge was framed by the trial court under S. 18(c) and 27A of the Act and read over to the revision-petitioner herein, he pleaded not guilty; and he wanted P.W 1 the Drugs Inspector already examined on behalf of the prosecution to be further cross-examined by him.

On his behalf, the revision-petitioner herein examined D.W. 1 Sarojini, his wife. D.W.1 Sarojini has stated in her evidence that the revision-petitioner herein is her husband, that she had undergone tubectomy operation in'' the year 1977, and thereafter she had suffered from complications regarding the said operation and became sick. She has further stated in her evidence that she had been receiving treatment from a private doctor. D.W. 1 has further stated in her evidence that the medicines that are used for her were kept by them in her house as well as in the hospital of her husband/the revision-petitioner herein, and that it is usual to keep in that manner. She has further stated that the medicines seized from the house by the Drugs Inspector are medicines that are used for her treatment.

When D.W.1 was cross-examined, she has stated that the doctor who had treated in the Government Hospital and the doctor who treated her in the private hospital are alive. She had denied the suggestion that no surgical operation was undergone by her and that she did not receive any treatment. She had also denied the suggestion that in order to save her husband, she has come forward to depose falsely. D.W.1 has also denied the suggestion that no medicine was prescribed by any medical practitioner to her. D.W.1 has also denied the suggestion that all the medicines that were kept in the hospital of her husband were kept there for her husband to give treatment.

The lower appellant court has observed in the judgment under revision, in paragraph 7, as follows:

It is seen form the evidence of D.W. 1 that those drugs were kept for her treatment only and not for sale. But there is no explanation forthcoming as to why a huge quantity was kept in the dispensary instead of in his house. The mere examination of D.W.1 to support the plea of the accused is not enough when especially those drugs were found in the dispensary of the appellant. Therefore, it can only be stated that those drugs were kept in the dispensary for sale and not for the purpose of treatment as contended by D.W.1. It is also significant to note that if realty those drugs were kept for treatment of D.W.1, definitely the appellant could have produced some document by prescription to show that D.W.1 was advised to take those drugs by way of treatment.

Mr. K.V. Sankaran, Learned Counsel for the revision petitioner herein inter alia, contends that the lower appellate court has not properly appreciated the evidence available on record, and as Such, the confirmation of both the conviction and sentence passed by the trial court is not correct and in accordance with law. The Learned Counsel for the revision-petitioner points out that P.W. 1 has only stated in his evidence that Ex. P6 reply sent by the revision-petitioner is not satisfactory, and that P.W. 1 has not stated in his chief examination as to how the contents of Ex. P8 are not satisfactory. In support of his contention the Learned Counsel for the revision-petitioner refers to the decision in Mohd. Shabbir v. State of Maharashtra 1979 (Crl.) L.J. 466 (S.C.) for the following proposition:

S. 27 postulates three separate categories of cases and no other. (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any Comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, S. 27 of the Act would not be attracted.

Thus before a person can be liable for prosecution or conviction under S. 27(a)(i)(ii) read with S. 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of S. 27 are not satisfied the plea of guilty cannot lead the Court to convict the accused.

The point for consideration in this criminal revision case is whether there is any infirmity in the judgment of the lower appellate court.

The trial Court framed the following charge against the revision-petitioner herein:

That you, on or about the 11th day of June, 1978, at Kunrathur were found with stocks of allopathic drugs for sale without licence, and thereby committed an offence punishable under S. 18(c) and 27-A of the Drugs and Cosmetics Act, 1940, and within my cognizance.

It is for this charge, at the earliest possible opportunity, the revision-petitioner herein submitted before the trial Court on 3-7-1982 that his wife and child are sickly persons -- and as such M.O.1 to M.O.43 were kept by him for use of the members of his family.

The preamble to the Drugs and Cosmetics Act reads as follows:

Whereas it is expedient to regulate the import, manufacture, distribution and;

And whereas the Legislatures of all the Provinces have passed resolutions in terms of S. 103 of the Government of India Act, 1935 26 Geo. 5, c. 2, in relation to such of the above-mentioned matters and matters ancillary thereto as are enumerated in List II of the Seventh Schedule to the said Act;

It is hereby enacted.

S. 18 of the Act reads as follows:

Prohibition of manufacture and sale of certain drugs and Cosmetics. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--

(a) manufacture for sale, or sell or stock or exhibit for sale, or distribute--

(i) any drug or cosmetic which is not of standard quality;

(ii) any misbranded drug or misbranded cosmetics;

(iia) and adulterated drug;

(iii) any patent proprietary medicine, unless there is displayed in the prescribed manner or the label or container thereof the true formula or list of ingredients contained in it in a manner readily intelligible to the members of the medical profession;

(iv) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to prevent, cure or mitigate any such disease or ailment, or to have any such other effect as may be prescribed;

(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;

(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;

(b) sell, or stock or exhibit for sale, or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;

(c) manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter;

Provided that nothing in this section shall apply to the manufacture, subject to prescribed condition of small quantities of any drug for the purpose of examination, test or analysis;

Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale, or distribution of any drug or class of drugs not being of standard quality.

Explanation : The formula or list of ingredients mentioned in sub-clause (iii) of clause (a) shall be deemed to be true and a sufficient compliance with that sub-clause if, without disclosing a full and detailed recipe of the ingredients, it Indicates correctly all the potent or poisonous substances contained therein together with an approximate statement of the composition of the medicine.

S. 18A of the Act reads as follows:

18A. Disclosure of the name of the manufacturer, etc.--Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required disclose to the Inspector the name address and other particulars of the person from whom he acquired the drug or cosmetic.

S. 27-A of the Act reads as follows:

27.A. Penalty for manufacture, sale etc., of cosmetics in contravention of this Chapter.--Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale, or distributes any cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

S. 27 of the Act reads as follows:

Penalty for manufacture, sale etc., of drugs in contravention of this Chapter. Whoever himself or by any other person or on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes--(a) any drug--

(i) deemed to be misbranded under clause (a), clause (b), clause (c), clause (d), clause (f) or clause (g) of S. 17 or adulterated under S. 17 -B; or

(ii) without a valid licence as required under clause (c) of S. 18 shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine;

Provided that the court may, for any special reasons to be recorded fin writing, impose a sentence of imprisonment of less than one year;

(b) any drug other than a drug referred to in clause (a) in contravention of any of the provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

The documents, namely, receipt issued by G.K. Medicals (page 37), receipt issued by G.K. Medicals dated 3-4-1978 (page 39) prescription bearing the doctor''s name as A. Gajanan Rao (page 41), receipt issued by Sree Venkateswara Medicals dated 9-6-1978 (page 47), prescription bearing the doctor''s name as Dr. (Mrs) Lalitha C. Solomon prescribing medicines for Virudambal dated 3.6.1978 (page 49) and profoma invoice dated 1-5-1978 issued by Arun Karthik Surgicals to the revision-petitioner for Rs. 17.50, regarding needles and plasters, that were mentioned above can be taken as documents filed along with the statement of the revision-petitioner under Sec. 313, Cr.P.C. Prosecution ought to have filed them through P.W. 1 as documents, which it has failed to do. Since those documents find place in the record sent by the lower court, this Court has looked into the contents of the same as documents produced by the revision-petitioner. It is relevant in this connection to note that P.W. 1 had not even cared to verify whether those bills of Sree Venkateswara Medicals and other medical stores were genuine and issued by them. Whether those bills are in the name of the revision-petitioner or his wife, it is common knowledge that the bills some times are issued by the medical stores to the persons who purchase the medicines.

S. 19(3) of the Drugs and Cosmetics Act, 1940 reads as follows:

Pleas.......

(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of S. 18 if he proves--

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and

(c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as and when he acquired it.

The above sub-section (3) of Sec. 19 of the Act has been substituted by Act 13 of 1964, and it came into force with effect from 15-9-1964. In the instant case, the alleged offence is said to have taken place in the premises of the revision-petitioner on 11-6-1978.

The Supreme Court in Mohd Shabbir v. State of Maharashtra 1979 Crl. L.J. 466 at Page 467 (S.C.) : 1979 L.W. (Crl.) 225 in paragraph 4, observed as follows:

...All that has been shown is that the tablets concerned were recovered from his possession. It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of S. 27 of the Act. On an interpretation of S. 27, it seems to us that the argument of Mr. Singh is well founded and must prevail. The words used in S. 27, namely, "Manufacture for sale, sells," have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale". Thus the section postulates three separate categories of cases and no other. (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, S. 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale, Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be "drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of S. 27. We, therefore, hold that before a person can be liable for prosecution and conviction under S. 27(a)(i)(ii) read with S. 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of S. 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant.

In the instant case before us, we find that it has been elicited from P.W. 1 in his cross-examination that the value of M.O.1 to M.O.43 is about Rs. 50/- . It is also suggested to P.W. 1 that the value of those items of medicine would be less than Rs. 20/- , which he has denied. The revision-petitioner in his reply (Ex. P3) has stated that item No. 1 in Ex. P1 is used for his wife (D.W.1) who had undergone tube comfy operation on 22-11-1977, and after the operation, the doctor advised to continue some medicines like items Nos. 2, 4, 12, 13, 19, 20, 21, 22, 23, 27, 28, 29, 32, 33 and 35 and as such she is continuously being treated with those medicines. The revision-petitioner has also stated that item No. 4 is not medicine, and it contains only distilled water. Items Nos. 15, 17, 21, 25, 26, and 31 were prescribed by a doctor to Smt. Virudhambal, a patient who has also got tubectomy operation along with his wife at General Hospital. Items Nos. 5, 6, 8, 9, 10, 11, 14, 16, 18, 34, 36 and 37 were kept for the use of Dr. Subbiab, M.D., who had practised in his clinic about two years ago, and since the said doctor got an appointment in General Hospital at Madras, prior to the seizure of those medicines, all those medicines were left in his clinic, Items Nos. 39, 40 and 42 are used by the revision-petitioner as he had to attend to some emergency cases. He has also mentioned in Ex. P3 that the drugs which were used for his wife were purchased from Sree Venkateswara Medicals in different times. As already stated, the documents in this case include some receipts from the said Sree Venkateswara Medicals. It is relevant to note that item No. 42 is a glass syringe which cannot be classified as drug.

The fundamental principle of criminal jurisprudence is that a Court trying a case, has necessarily to consider the plea put forward by the accused and examine the materials that are placed before it by the accused or the materials that are available in the case put forward by the prosecution itself which will be favourable to the accused and determine the probabilities and the circumstances relied on by the accused before upholding the case of the prosecution. The penal provisions of the Act do not contemplate ''keeping of the drugs'' such as tablets and vials, for personal use. In order to sustain a conviction under the Act, it must not only be proved that the accused has kept the medicines without licence, but it must also be proved that they have been kept for selling the same. Necessary quantity of medicine kept for the purpose of treatment of the accused or the members of his family cannot be said to be an offence under the Act.

In the instant case before us, as mentioned above, even on 11.6.1978, the revision-petitioner has explained his stand relating to the possession of the seized medicines in his reply (Ex. P3). In support of his case, the revision petitioner has examined his wife, D.W.1 Sarojini, who has specifically stated in her evidence that the medicines used by her were kept by them in her house as well as in the hospital of her husband-- She has also specifically stated that the medicines that were seized by P.W. 1 Drugs Inspector includes also the medicines that were kept for her treatment. Nothing material has been elicited in her cross-examination so as to reject her evidence.

There is nothing available in evidence to show that P.W. 1 had applied his mind regarding the truth or otherwise of the statement by the revision-petitioner in Ex. P3 regarding possession of the medicines. It is common knowledge that certain injections, such as ''Insulin'' are injected personally by the patients suffering from the disease by them selves by keeping the vials containing the said medicine. In the instant case before us, the revision-petitioner is a homeopath practitioner. Though a homeopath may not be permitted to prescribe any allopathic medicine, yet, as the husband of the patient, there is no prohibition for him to give the prescribed medicine or keep the vials containing the medicine for injection. In the instant case before us, we find that items Nos. 3 and 4 in Ex. P.1 are ("opened") vials. Item No. 25 includes 8 tablets or Hetrazan-strip pack-manufactured by Cyanamid India Limited. It is common knowledge that the value of one strip pack of Hetrazan tablets containing 10 tablets is a sum of Re. 0-95, as on December, 1985, and that these tablets are commonly used as an anti-septic medicine. Considering the value of 10 tablets of Hetrazan at the rate of Re. 0-95, the value of 9 Hetrazan tablets may come to about Re. 0.80. It can easily be accepted that the valuation of the entire 43 items may not exceed Rs. 20/- , as suggested to P.W. 1. P.W. 1 has not ascertained the value of 43 items of medicine, which he had seized from the premises of the revision-petitioner.

It is also relevant in this connection to note that the revision-petitioner has stated that as the residence was not suitable for-keeping the medicines, he had kept the medicines in question in his clinic. There is absolutely no evidence available on record to prove the case of the prosecution that at any point of time, the revision-petitioner had indulged in selling any medicine kept by him. There is no provision in the Act which prohibits keeping of medicine for personal use, that too, medicine the value of which is about Rs. 20/-, according to the revision-petitioner. There is a clear proof that P.W. 1 had not applied his mind at all regarding the contents of Ex. P.3 explanation given by the revision-petitioner herein nor the contents of Ex. P.6 explanation given by the revision-petitioner wherein he reiterated the important aspects of his case, namely, that his wife (D.W.1) had undergone tubectomy operation and still she has been suffering from ailments, such as, odema, stomach pain, suffocation and diarrhoea. In Ex. P.6, the revision-petitioner has specifically stated that he has no convenient place to keep the drugs at home because his rented room is a small one and he is using it only for kitchen purpose and staying at the dispensary at night, and as such, he used to keep all his family drugs in his dispensary. He has also expressed his apology for having kept the medicines in his dispensary. A careful scrutiny of the case put forward by the revision petitioner at the earliest point of time under Ex. P3, and thereafter, under Ex. P6, and even during trial soon after the charge was framed, shows that his case does not deserve rejection. There is no satisfactory evidence available on record to show that the revision-petitioner herein has contravened the provisions of S. 18 or S. 18-A of the Act. Merely on the ground of assertion or on the ground that sanction has been given by his higher authorities under Ex. P7 to prosecute the revision-petitioner, it cannot be held that the prosecution has proved its case against the revision-petitioner herein beyond all reasonable doubt. The several infirmities pointed out above in the case put forward by the prosecution clearly show that the prosecution has not established its case against the revision-petitioner herein beyond all reasonable doubt. The revision-petitioner, under the circumstances, is entitled to an acquittal of the offence with which he had been charged by trial Court. Both the Courts below have not properly appreciated the case of the prosecution in the light of the consistent defence that had been put forward on behalf of the revision-petitioner herein. Both the Courts below have not properly appreciated the case put forward by the revision-petitioner at several stages and before the trial court, and examined the evidence unfurled through the witnesses by the prosecution as well as the contents of the documents relied on by it in the light of the consistent defence put forward by the revision-petitioner herein, before coming to the conclusion. There is absolutely no reason for both the courts below to reject the evidence of D.W.1 who is a competent witness to speak about the possession of the medicines in this case. The non-examination of the doctor who prescribed the medicines or Dr. Subbiah who had practised in the clinic of the revision-petitioner about two years prior to the occurrence in this case by the revision-petitioner as defence witnesses does not in any way affect the case put forward by him. Merely on the assertions of P.W. 1 in his evidence, no conviction can be sustained under the penal provisions of this enactment.

Accordingly the conviction and sentence imposed by the trial court on the revision-petitioner, which in turn were confirmed by the lower appellate court are set aside. The criminal revision case is allowed. The fine amount paid is directed to be refunded to the revision-petitioner herein.