IN RE: J.S. MATHEWS Vs. STATE

JUDGEMENT

(1.) THE appellant who is manager of the show rooms of Messrs. Spencer and Company, Limited, Madras, has been convicted by the Chief Presidency Magistrate under Rule 81(4) of the Defence of India Rules read with Clause 11 of the Drugs Control Order, 1943, and has been sentenced to a fine of Rs. 5,000, and in default to two months' rigorous imprisonment.

(2.) THE case against the appellant in brief is this: On the 10 th October, 1945, a tin of Glaxo was needed for a sick girl named Rajam aged one year. P.W. 2 who was a neighbour was approached by the girl's father. P.W. 2 made enquiries in the market, but as he was not able to get it and on learning that there were stocks at Messrs. Spencer and Co., he approached a medical practitioner, Dr. A. Narasinga Rao (P.W. 1) and obtained from him a medical certificate, Ex. P -1. Ex. P -1 merely states without mentioning the name of the parent of the child or even the fact that it was required for a child, that Glaxo and Glucose -D were essential as diet for P.W. 1's patient. It was not mentioned in that certificate that the patient was a child one year old. P.W. 2 who is a clerk in the office of the Special Assistant Commercial Tax Officer went with P.W. 3, the Special Assistant Commercial Tax Officer himself, to Messrs. Spencer and Co., at about 3 p.m. P.W. 3 remained outside while P.W. 2 went in and met the accused. The accused is admittedly a European who is employed in Messrs. Spencer and Co., and is not a salesman at the counter but is occupying a higher position as manager of the show rooms. Presumably he is not conversant with Tamil except knowing a few simple words. P.W. 2 says that he showed the medical certificate, Ex. P -1 to the accused and asked him for a tin of Glaxo. According to P.W. 2, the accused asked him merely whether the certificate was addressed to Messrs. Spencer and Co., and on his reply in the negative the accused told him in Tamil, "No. Go." P.W. 2 admittedly spoke to the accused in Tamil although he knew English fairly well, being a cleric in a public office. Immediately after obtaining the negative reply from the accused, P.W. 2 went to P.W. 3 who was stationed just outside, and both of them returned to the accused, and P.W. 3 questioned the accused why he had refused to sell a tin of Glaxo to P.W. 2. P.W. 3 disclosed to him his official capacity, and thereupon the accused informed him forthwith that he had refused to sell for two reasons, namely, that the age of the patient was not given in Ex. P -1, and the certificate was not addressed to Spencer and Co. The third reason which the accused gives that he did not understand the Tamil words which were spoken by P.W. 2 was not according to P.W. 3 given out to him then. Immediately after this statement, P.W. 3 checked the stock of Glaxo in the shop and found that there was substantial stock available. He also examined P.W. 2 and the accused and recorded their statements, Exs. P -2 and P -3. In his statement, Ex. P -3, the accused gave out that after seeing the doctor's certificate produced by P.W. 2 he refused to supply because the age of the patient was not given therein and the certificate was not addressed to Messrs. Spencer and Co. Upon these facts the accused was prosecuted under Clause 11 of the Drugs Control Order read with Rule 81(4) of the Defence of India Rules.

(3.) CLAUSE 4 of the Drugs Control Order provides that no person shall carry on the business of a retailer at any place in British India except under and in accordance with the conditions of a valid licence. Under Clause 7 the licensing authority may specify in the licence the conditions subject to which it is issued and the licensee is bound to comply with those conditions. Clause 11 provides that no retailer shall refuse to sell any drug without reasonable cause. In Clause 11, there are four categories of persons mentioned, namely, manufacturer, importer, wholesaler and retailer and Messrs. Spencer and Co., are, for the purposes of this case, retailers. The accused in his individual capacity does not fall under any of these categories. He could, therefore, be only prosecuted as the manager of the retailer company by invoking the aid of Rule 122 of the Defence of India Rules. Under that rule if the person contravening any of the provisions of the rule is a company or other body corporate, its manager shall be deemed to be guilty of such contravention unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. Rule 122 has not been expressly referred to in the charge. Although express reference is not necessary, the charge should at least have indicated that the person who contravened the provisions of the rules, was the company or the body corporate and that the accused was being held liable in respect of that act in his capacity as manager of the company. In the preamble, in describing the accused, the designation of manager of Spencer and Co. is no doubt used. But in the body of the charge, there are no words to indicate that it was the company that was being charged through its manager, the accused, with reference to the principle of liability enacted in Rule 122 of the Defence of India Rules. It is urged for the defence that this defect in the charge has caused material prejudice to the appellant. I am not satisfied, however, that on that account there has been any serious prejudice caused, since as far as I am able to see, the prosecution proceeded in all its stages as if it was directed against the company itself and the accused was not in any manner handicapped in his defence, by reason of the defective charge. The error might be held to have been cured by Section 537, Criminal Procedure Code.