STATE OF GUJARAT Vs. HIRALAL JETHALAL

JUDGEMENT

(1.) This is an appeal from an appellate order dated Nov. 4 1960 passed by the learned Additional Sessions Judge Gondal acquitting the respondent Hiralal Jethalal of the offences under sec. 27 read with sec. 18(a)(1) and (2) of the Drugs Act. The respondent was prosecuted before the learned Judicial Magistrate First Class Upleta for the above offences. The learned Magistrate found that the offecnes had been established and sentenced the respondent to pay a fine of Rs. 100/for each of the offences in default to suffer simple imprisonment for two months for each offence. The respondent went in appeal to the Sessions Court at Rajkot and the appeal was disposed off by the learned Additional Sessions Judge who reversed the order of conviction and sentence.

(2.) The facts leading up to this prosecution are not in dispute. The respondent conducts a cutlery-cum-medicine shop at Upleta under the firm name of M/s Hiralal Jethalal and Co. He has obtained a licence under the Drugs Act 1940 for retail selling of drugs. On June 26 1958 Shri Oza who was then Drugs Inspector appointed under sec. 21 of the Drugs Act 1940 (heareafter called the Act) visited the shop of the respondent and obtained from him four bottles of Vicks Vaporab ointment for test and analysis. On that date the respondent had in all 21 bottles in stock. The balance of 17 bottles was seized by the Inspector under sec. 22 sub-sec. (1) clause (c) of the Act and necessary orders were obtained by him from the Magistrate for custody of that balance. of the four bottles he handed over one bottle to the respondent and from out of the remaining three he sent one bottle for test and analysis to the Government Analyst Bombay. The ointment in question was alleged to be a proprietary medicine. It was packed in a container which set out the formula or list of ingredients of the ointment. The Analyst found that the volatile matter of the ointment was only 41.73 per cent of the amount mentioned in the formula. Accordingly the Analyst expressed the opinion that the sample analysed was not of standard quality as required by the Act. There is no dispute that this was so. The expression standard quality has been defined in sec. 16 of the Act. That section and sec. 18 with which we are concerned occur in Chapter IV of the Act. Section 16 states that For the purposes of this Chapter the expression standard quality when applied to a drug means that the drug complies with the standard set out in the Schedule and the Schedule states that a patent or a proprietary medicine must comply with the formula or the list of ingredients displayed in the prescribed manner on the label or the container. The analyst sent a signed report in triplicate in the prescribed form to the Drugs Inspector. One of the copies of the certificate was sent to the respondent. The respondent sent a reply on August 25 1958 acknowledging receipt of the copy of the certificate and stated that he had purchased the bottles in question from four named firms under bills dated 6-2-1957 8 10 and 24 and that he could not say definitely from which of these four firms the sample which was examined by the analyst was purchased by him. He further stated that he had purchased these bottles on trust and that he did not-know that it was spurious and promised that he would not keep such goods in future. There is no dispute that under sub-sec. (3) of sec. 25 of the Act this certificate of the analyst was conclusive evidence of the facts stated therein. After the receipt of this reply the Drugs Inspector made some enquires from the firms mentioned by the respondent and also from an agent of the Company which manufactured the ointment. The successor of the Inspector ultimately filed a complaint before the learned Magistrate Upleta which resulted in the conviction of the respondent. Besides Mr. Oza the prosecution examined a representative of the Vicks Company one Jayantilal Dalichand. This witness stated that there were vital differences between the caps and the labels on the samples attached from the respondent and the caps and the labels on the genuine bottles sold by the Company. He deposed that the caps on the bottles attached from the respondent differed from those on the genuine bottles in ink printing and general texture. The ink on the caps of the genuine bottles was deep and could not be blurred by touching; while the ink on those of the attached bottles was faint and got blurred by touch. He also pointed out the differences between the labels on the attached bottles and the labels on the genuine bottles. He stated that the colour of the attached bottles was faint; that the printing was much blurred and was not readable; that the shapes of the two sets of bottles differed as also their colour; that the monogram on the labels of the attached bottle was not properly printed and that the formula on the same was not readable. He also pointed out that there were no batch numbers mentioned on the labels and that the Company used to put the batch numbers on their bottles. All this evidence was accepted by the learned Magistrate. He came to the conclusion that the respondent had in his possession the bottles in question; that he had stocked and exhibited them for sale and that on the basis of the certificate given by the analyst the drug was not of standard quality and on the basis of the evidence given by witness Jayantilal and the Drugs Inspector the drug was a misbranded drug. The expression misbranded has been defined in sec. 17. The section states that a drug shall be deemed to be misbranded if inter alia it is an imitation of or a substitute for the genuine drug manufactured by the Company. The learned Magistrate held on the testimony of Jayantilal that the drug attached from the possession of the respondent was an imitation of the genuine drug manufactured by the Vicks Company. The defence which was urged by the respondent in the trial Court was based upon sec 19 sub-sec. (3) clause (a). That defence is available to a person who is not a manufacturer of a drug or who is not the agent for distribution of such a manufacturer. The respondent being only a stockist or seller of the above ointment was therefore entitled to the defence under sub-sec. (3). That sub-section states that a person shall not be liable for a contravention of sec. 18 if he proves that he did not know and could not with reasonable diligence have ascertained that the drug in any way contravened the provisions of that section and that the drug while in his possession remained in the same state as when he acquired it. In support of this defence the respondent examined three witnesses viz. (1) Vrajlal Jethalal Kothari (2) Valimohmed Abubhai and (3) Sureshchandra Devshanker. From this evidence the respondent wanted to establish that he was a bonafide purchaser for value of the 21 bottles which were attached from him by the Drugs Inspector. His case was that four out of 25 bottles which he had purchased from the four named firms had been sold by him in the interval. The learned Magistrate came to the conclusion that the respondent had failed to establish that the bottles in question had been purchased by him from the aforesaid firms much less that he was a bonafide purchaser in respect of those bottles. The learned Magistrate does not appear to have mentioned the defence under sub-sec. (3) separately nor does he appear to have raised a specific issue on the subject. But at the same time from the judgment of the learned Magistrate it is quite clear that he has considered the aforesaid defence of the respondent and reached his own conclusion on the subject. On the afores findings the learned Magistrate convicted and sentenced the responden as already mentioned The respondent preferred an appeal from the order of conviction and sentence. In the appellate Court it was not disputed on behalf of the respondent that the prosecution had succeeded in establishing that the respondent had stocked or exhibited for sale drugs which were not of standard quality and that the drugs attached from him were misbranded drugs. But the main point which was urged in the appellate Court was that the learned Magistrate had failed to consider the defence under sec. 19 sub-sec. (3) of the Act. The learned appellate Judge accepted this contention and proceeded to examine the defence. The learned appellate Judge came to the conclusion that the respondent was a bonafide purchaser for value. He reached this conclusion apparently on the testimony of the three defence witnesses whom we have mentioned above. The learned appellate Judge stated that therefore the question which arose for his consideration was whether the respondent who was not a manufacturer of the drug in question and who was not an agent for the distribution of the drug could be held to be liable for stocking or exhibiting for sale when the drug was misbranded and not of standard quality. He held that the respondent had clearly shown that he did not know as to what was contained in the bottles in question. He also held that the respondent was a bonafide purchaser of the drug in question; that it was also clear that it was not possible for him to ascertain with reasonable diligence that the drug in question in any way contravened the provisions of sec. 18. On these findings the learned Judge reversed the order of conviction and sentence and acquitted the respondent. ................. .................

(3.) Therefore the main question which requires to be considered in the appeal is whether the respondent has substantiated the defence under sec. 19 sub-sec. (3). Now sec.. 18 prohibits any person from amongst other things stocking or exhibiting for sale any drug which is not of standard quality or any misbranded drug. We have already shown that there was sufficient evidence in the case to prove these two facts. Now before return to sub-sec. (3) of sec. 19 it is necessary to read sub-sec.(1) thereof which clearly gives an indication as to the correct approach which is to be made in prosecutions under sec. 18. Sub-section (1) of sec. 19 states in specific terms that it shall be no defence in a prosecution under Chapter IV to prove merely that the accused is ignorant of the nature substance or quality of the drug in respect of which the offence has been committed. Therefore mere ignorance on the part of the accused person that he is unaware of the nature or the substance or the quality of the drug is not a defence. In other words all that the prosecution is required to prove in order to establish contravention under sec. 18 is the fact that the accused sold or exhibited a drug which was not of standard quality or which was a misbranded drug. It is not necessary for the prosecution to establish that the accused did so knowingly wilfully or with a guilty mind. Therefore the moment the aforesaid three ingredients of sec. 18 are established the prosecution is entitled to ask for an order of conviction to be recorded. If the accused wants to get rid of the effect of the prosecution evidence then it is for him to establish the defences which are available to him under sub-sec. (3). There are two defences which are available to the accused under that sub-section. Clause (b) of that sub-section deals with the defence of written warranty in the prescribed form and signed by the person from whom the drug was purchased or obtained. The respondent did not plead this defence and therefore it is not necessary for us to consider the provisions of clause (b). The defence on which he relied was the one which is mentioned in clause (a) and as we have already pointed out that defence requires three ingredients to be established. One is that the accused did not know that the drug in any way contravened the provisions of sec. 18 of the Act. The second ingredient is that he could not with reasonable diligence have ascertained that the drug in any way contravened the same provision. The third ingredient is that the drug whilst in his possession remained in the same state when he acquired it. It is necessary to observe that all the three ingredients are cumulative and all of them must be established to substantiate the defence. If any one of the ingredients is missing then the defence does not come to be established. therefore the question for consideration in the appeal is whether the respondent had led sufficient evidence or placed sufficient materials on the record from which it can be said that ail the aforesaid three ingredients are satisfied.