PANDIAN Vs. MUTHUSWAMY

JUDGEMENT

(1.) THE two Appellants appeal against their conviction for offences under Section 10(a) read with Rule 7 (d) of G.O. Ms. 3031, Home dated 1st November 1958, framed under Section 16(1) of the Madras Prohibition Act, for alleged possession, without requisite medical prescription, of 1150 bottles of some Ayurvedic preparations containing an admixture of chloral hydrate, an intoxicating drug. Accused 1 is the owner of the shop. Accused 2 is his servant.

(2.) THE shop of Accused 1, situated at No. 26, Mambalam High Road in T. Nagar, was searched between 7 -30 P M. and 8 P. M. on 10th February 1968 In the presence of P. W. 2 and one Veerappan (not examined). Both Accused 1 and 2 were present. In the course of such search, P. W. 1 found 950 bottles (M. Order 1 series) each hearing a label marked "Usrabala Kashayara -product of Jothi Pharmacy, H O. Five Falls Road, Courtallam." Besides MO. 1 series, there were also 200 bottles (M.O. 2 series), each bearing a label marked "Amirtaathi Kashayam, Jothi Pharmacy, Five Falls Road, Courtallam" The company seals on all the bottles in M. O's. 1 and 2 series were found to be intact. P. W. 1's suspicion about the intoxicating nature of the colored contents of M. Os. 1 and 2 series, was roused. He seized all the bottles under a search list (Ex. P. 1) attested by P. W. 2. Five bottles from M. Order 1 series and another five bottles from M.O. 2 series, were picked out at random by P. W. 1. They were sealed in the presence of witnesses and the accused for being sent to the Chemical Examiner, Madras for purposes of chemical analysis. A copy of Ex. P. 1 was duly served on Accused I who refused to affix his signature in takes of service. Both the accused were arrested and taken to the police station. Ex. P2 is the first information report in Crime No. 436 of 1968. The ten samples bottles were sent on 13th February 1968 to the Chemical Examiner, Madras with a covering letter Ex. P. 3 for purposes of analysis. The report of the Chemical Examiner, Ex. P. 4, which was received on 14th June 1968, disclosed that the five bottles labeled "Amirthathi Kashayam" (M. Order 2 series) contained self -generated alcohol, glycerin, sugar, aromatic substance and chloral hydrate. The contents of the bottles were certified to be ayurvedic preparations containing an admixture of chloral Hydrate, the percentage of this ingredient being Order 7 and Order 8. The five bottles in M. Order 1 series labeled "Usarabala Kashayam" were found on analysis, to contain chloral hydrate (1. 0% and 1. 2%) and traces of aromatic substance. The contents were found to be free from alcohol. On the basis of the findings contained in Ex, P. 4, the charge was laid against both the accused under Section 10(a) read with Rule 7(d) of G. O. Ms. 3031 (Home) dated 1.11.1958, as the possession of M. Order 1 and M.O. 2 series was not covered by any permit or medical prescription. At this stage, I am bound to state that Ex. P. 4 was tendered in evidence by P. W. 1.

(3.) RULE 7(d) of the said G.O. reads as under: