R. Dayalan and Others, In re

Paul, J.—This is a petition under S. 482 of the Criminal Procedure Code for sending one bottle of the M.Os. concerned in C.C. No. 17 of

1976 on the file of the Sub Divisional Judicial Magistrate, Hosur to the Chemical Examiner, Tamil Nadu Prohibition and Excise Laboratory,

Chepauk, for analysis and report with regard to the nature of the contents of the bottle.

The petitioners stand convicted by the learned Judicial Sub-Divisional Magistrate, Hosur, of an offence under S. 18 read with S. 27(b) of the

Drugs and Cosmetics Act and have been sentenced to undergo imprisonment for one year. The aforesaid conviction and sentence was confirmed

on appeal. The petitioners have thereupon id a Criminal Revision Case before this Court. The facts are as follows: On 2nd February 1975, P.W.2

the Drugs Inspector of Dharmapuri inspected Sri Murugan Pharmacy at Hosur of which shop the first accused 1 Chandriah Naldu was the

proprietor and in which shop the second accused was an employee. Noticing that some of those medicines contained the label ""Manojan"" in the

shop, P.W.2 purchased 4 such bottles from the second accused for Rs. 14/- and obtained the cash receipt Ex. P.3 He sealed those 4 bottles, put

on them sample No. 6, five (sic) bottle to the second accused and obtained his acknowledgment and subsequently sent one of the sample bottles

to the Government Analyst, Guindy. The Government Analyst at Guindy examined the example and found it to contain chloral (sic) an allopathic

medicine which was an (sic) P.W.2 then seized the remaining 10 bottles of Manojan in the presence of P.W.3, a private witness. Subsequently,

P.W.2 tendril show cause notice on 8th May 1973 to accused 1 and 2 who then sent (sic) Exs. P-8 and P-11 respectively in which they have

stated that they purchased the aforesaid drug from the third accused Dayalan P.W. 2 thereupon sent a show cause notice to the third accused on

22nd August 1975 and the third accused sent a reply enclosing with it a certificate issued by the sixth (sic) appointing the third accused as the sole

a (sic) for sale of the drugs for Salem and (sic) puri Districts as well as bills for the sales the third accused by the fourth accessed (sic) P.W. 2

thereupon sent a show cause notice to the forth accused at Madurai and the fifth accused who is the manager of the (sic) sent a reply, Ex. P. 14.

P.W.2 subsequently laid the complaint before the Court under Sip of the Drugs and Cosmetics Act.

The learned Magistrate, however, eventually discharged the first and second (sic). He framed a charge against the petitioner alone under S.

27(a)(i) and 27(b) of the (sic) on the ground that they had manufacture and stocked for sale the misbranded (sic). The learned Magistrate

eventually convicted the petitioners of an offence under S. 27(a)(i) of the Act and sentenced them each to R. 1 for one year. On appeal the learned

Sections Judge altered their conviction under S. 27(a)(i) of the Act into one under S. 27(b) of the Act, but confirmed the sentence.

Now the petitioners have filed criminal revision petitions before this court (sic) the aforesaid convictions. Meanwhile, (sic) petitioners have filed

this petition (sic) that one of the sample bottles may be sent to the Chemical Examiner, Tamil Nadu Prohibition and Excise Laboratory, Chepauk,

for the purpose of analysis and report. This petition is stoutly opposed by the respondent who contends that the petitioners cannot ask for the

sample to be so sent for analysis after having failed to make use of such an (sic) during the trial.

S. 23 of the Drag and Cosmetics Act deals with the procedure for taking samples of drags for the purposes of test or analysis. The section

enjoins the Food Inspector to divide the sample into four portions and effectively seal and suitably mark the same. Proviso to sub-s. (3) states that

where the sample is taken from a premises whereon the drag is being manufactured, it shall be necessary to divide the sample into three portions

only. Sub-S. (4) enjoins the Inspector to give one portion of the sample so divided to the person from whom he takes it and to send another

portion to the Government Analyst for test or analysis and produce yet another portion into the Court before which the proceedings, if any, are

instituted in respect of the drug and to send the third portion to the person, if any, whose name, address and other particulars have been disclosed

under S. 18-A. S. 18-A casts a duty on every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof to

disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic. On a reading of S.

18-A and sub-S. (4) of S. 23 together it is clear that out of the four portions into which the sample has been divided one portion should be sent to

the person, if any, whose name and address and other particulars have been disclosed under S. 18-A. S. 24 casts a duty on every person for the

time being in charge of any premises whereon any drug is being manufactured or is kept for sale or distribution to disclose to the Inspector on

being required to do so the place where the drug is being manufactured or is kept, as the case may be S. 25 requires the Government Analyst to

whom a sample has been submitted for test or analysis to deliver to the Inspector a signed report and the Inspector on receipt thereof has to

deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and

other particulars have been disclosed under S. 18-A and shall retain the third copy for use in any prosecution in respect of the sample. Sub-S. (3)

of S. 25 states that any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts

Stated therein and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and

other particulars have been disclosed under S. 18-A has, within twenty-eight days of the receipt of a copy of the report notified in writing the

Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of

the report. Sub-S. (4) states that unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has

under Sub-S. (3) notified his intention of adducing evidence in contravention of a Government Analyst''s report, the Court may, of its own motion

or in the discretion at the request either of the complainant or the accused, cause the sample of the drug produced before the Magistrate under

Sub-S. (4) of S. 23 to be sent for test or analysis to the said Laboratory which shall make the test or analysis and report in writing signed by, or

under the authority of, the Director of the Central Drugs Laboratory the result thereof and such report shall be conclusive evidence of the fact

stated therein. Sub-S. (5) states that the cost of a test or analysis made by the Central Drugs Laboratory under Sub-S. (4) shall be paid by the

complainant or accused as Court shall direct.

The procedure under sub-Ss. (2) to (4) of S. 25 is available only to the person from whom the sample was taken and to the person if any,

whose name, address and other particulars have been disclosed under S. 18-A. Further, sub-S. (3) clearly states that if one of those two persons

wishes to challenge the report of the Government Analyst he should within 8 days of the receipt of the report notify in writing that he intends to

adduce evidence in controversion of the report; and he may under sub-S (4) request the Court to send the sample to the Central Drugs Laboratory

for analysis and report.

The petitioner in this case is not a person from whom the sample was taken nor is he a person whose name, address and other particulars were

disclosed under S. 18-A. Hence it is contended by the respondent that he cannot avail himself of the aforesaid provisions and moreover, in any

event he cannot avail himself of these provisions at this stage when he has not applied within the time stipulated under Sub-S. (3) or notified in

writing the Inspector or the Court that he intended to adduce evidence in contravention or the report of the Government Analyst.

Mr. Santhanagopalan, learned counsel for the petitioner, however, contends that he is also entitled to make use of ""the provisions contained in

S. 25. But the copies of the report of the Government Analyst to whom a sample of any drug or cosmetic had been submitted for test or analysis

under sub-S. (4) of S. 23 shall be delivered only to the person from whom the sample was taken and the person, if any, whose name and address

and other particulars have been disclosed under S. 18-A. Under S. 18-A 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.

The sample of the drug in this case was taken from Sri Murugan Pharmacy at Hosur of which the first accused is the proprietor and of which the

second accused was the salesman. Therefore, the first accused, the proprietor was issued with a show-cause notice and he, while submitting his

explanation disclosed that he acquired the drugs from the third accused Dayalan who is the first petitioner herein. Therefore, the third accused is

the person who was disclosed under S. 18-A and accordingly the third sample as well as the analyst''s report were sent to the third accused as

required by S. 25 and the third accused is the sole, agent for sale of the aforesaid drug. The third accused in his explanation, however Implicated

the fourth accused, Sri Murugan Pharmacy at Madurai of which the fifth accused is the Manager and at which the sixth accused, as Ayurvedic

Practitioner is manufacturing ayurvedic drugs. The certificate appointing the third accused as the sole agent has been signed by the fifth accused. S.

18-A, it must be remembered, does not refer to a manufacturer at all. It only refers to every person not being 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. The particulars to be given under S. 18-A are regarding the person from whom a person acquired the

drug or cosmetic. The person from whom the drug or cosmetic was acquired might be different from the manufacturer of the drug in some cases

and in some cases it may be the manufacturer of the drug.

In this case, accused 1 and 2 had acquired the drag from die third accused. Therefore, the third accused is the only person disclosed under S.

18-A who would by reason of Ss. 23 and 25 be entitled to a copy of the analyst''s report as well as to the third sample as laid down in S. 23 and

not accused 4 to 6.

The disclosure by the third accused of the names and addresses of accused 4 to 6 would not be a disclosure under S. 18-A, for S. 18-A casts

a duty only on every person who is not a manufacturer of a drug or cosmetic or his agent for the distribution thereof. The third accused is the sole

agent for the distribution of the drug in question. Therefore his disclosure of the names and addresses of accused 4 to 6 would not be a disclosure

under S. 18-A and consequently, neither S. 23 nor, S. 25 would avail accused 4 to 6.

To the third accused, admittedly the third sample was given under S. 23 and a, copy of the report was also given to him under S. 25. The third

accused, as required by sub-S. (3) of S. 25 has not within 28 days of the receipt of the copy of the report notified in writing the Inspector or the

Court before which the proceeding was pending that he intends to adduce evidence in contravention of the report; nor did he under sub-S. (4) of

S. 25 request the sample produced before the Magistrate to be sent for test or analysis to the laboratory. Therefore, he cannot now at this stage

when he has filed a revision challenging his conviction after having failed in the appeal filed by him, ask for the sample to be sent for analysis.

Accused 4 and 6 as I have already stated, are not entitled to take use of sub-S. (3) and (4) of S. 25 inasmuch as they are not persons disclosed

under S. 18-A. Hence, this petition asking for one of the sample bottles to be sent to the Chemical Examiner, Tamil Nadu Prohibition and Exercise

Laboratory, Chepauk, has to be and is dismissed.