STATE OF KERALA Vs. ABUBACKER

JUDGEMENT

(1.) The State of Kerala is the appellant. The Drugs Inspector (Additional) Cannanore visited the stationery shop M/s. Abubacker and Company, New Bus Stand, Cannanore - 2, and found in that shop 14 articles which according to him were drugs exhibited for sale. The above shop had no licence for stocking and exhibiting drugs for sale. The articles were taken into custody under a mahazar and thereafter produced before court. A complaint was duly filed before the Chief Judicial Magistrate, Tellicherry, against the three partners of the concern alleging an offence under S.27(a)(ii) read with S.18(c) of the Drugs and Cosmetics Act, 1940 (for short, the Act). The accused pleaded not guilty. The Chief Judicial Magistrate found the 1st accused, the respondent herein, guilty of the offence charged, convicted him and sentenced him to simple imprisonment for one year and to pay a fine of Rs. 100/-. In default of payment of fine he was directed to suffer simple imprisonment for one month. The other two accused were acquitted The respondent filed Crl. Appeal No. 86 of 1974 before the Sessions Court, Tellicherry. The additional Sessions Judge, who disposed of the appeal set aside the conviction and acquitted him. The order of acquittal is challenged in this appeal.

(2.) It is common case that the partnership concern of the respondent has not taken a licence for sale of drugs. Under S.18(c) no person shall himself or by any other person on his behalf 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 as provided in the Act. Though it is admitted that Pw. 1, the Drugs Inspector visited the shop of the respondent and took into custody certain articles, the stand taken by the respondent is that the articles were not drugs. S.3(b) of the Act defines "drug" as follows:

(3.) The Additional Sessions Judge, Tellicherry, held the view that it is a condition precedent for holding that a particular article is a drug, that it should be examined by the Government Analyst and a conviction can be entered only on basis the of the report of the Analyst. The acquittal of the respondent is mainly on the ground that samples of the articles had not been sent to the Government Analyst and his report had not been obtained. The appellate judge refused to act upon the alleged admission in Ext. P3 letter sent by the partnership concern to the Drugs Officer, Trivandrum.