STATE Vs. HARILAL JETHALAL

JUDGEMENT

(1.) This is an appeal from an appellate order dated November 4, 1960, passed by the learned Additional Sessions Judge, Gondal, acquitting the respondent Harilal Jethalal of the offences under Section 27, read with Section 18 (a) (i) 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 offences 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 Hiraial 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 Section 21 of the Drugs Act, 1940, (hereafter called the 'Act'), visited the shop of the respondent and obtained from him four bottles of Vicks Vapomb 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 Section 22, Sub-section (i), 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 ot 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 Section 16 of the Act. That section and Section 18, with which we are concerned, occur in Chapter IV of the Act. Section 16 states that,

(3.) Therefore, the main question which requires to be considered in the appeal is whether the respondent has substantiated the defence under Section 19, Subsection (3). Now Section 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 we turn to Sub-section (3), it is necessary to read Sub-section (i), which clearly gives an indication as to the correct approach which is to be made in prosecutions under Section 18. Subsection (1) of Section 19 states in specific terms that it shall be no defence in a prosecution under Chapter IV to prove merely that the accused was ignorant of the nature, substance, or quality of the drug in "respect of which the offence had been committed. Therefore, mere ignorance on the part of the accused person that he was 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 Section 18, is the fact that the accused had 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 had done so knowingly, wilfully or with a guilty mind. Therefore, the moment the aforesaid three ingredients of Section 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-section (3). There are two defences which are available to the accused under that, sub-section. Clause (b) of that subsection deals with the defence of the 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 Section 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 has led sufficient evidence or placed sufficient materials on the record from which it can be said that all the aforesaid three ingredients are satisfied.