ABDUL MOID Vs. STATE

JUDGEMENT

(1.) THE applicants in this revision are Abdul Moid, Abdul Majeed, Mohd. Amin and Mohd. Fareed, Messrs. Button House is also one of the applicants. It appears that this firm is an unnecessary party, simply because there is no order of conviction against the firm. The admitted facts of the case are that a firm known as Messrs Button House used to carry on the business of selling certain drugs and other articles in the locality known as Hazratganj in the city of Lucknow. The partners in this firm are Abdul Moid, Abdul Majeed Mohd. Saeed and Mohd. Amin. On 12-8-1971, the Drug Inspector purchased a drag named Boroline from the said business premises for a sum of Rs. 1. 50 and obtained a cash memo. The Inspector again visited the firm on 20-81971 and seized the remaining stock of the said drug which was being exhibited for sale and stock in the premises of the said firm. It is alleged that the said firm did not possess any licence to sell, stock or exhibit for sale the drug named as Boroline and it was also alleged that the price charged for the drug was in excess of the maximum retail price. A complaint was filed by the Drug Inspector on 20-3-1972 before the City Magistrate with the allegation that the firm and the partners had contravened certain provisions of the Drugs and Cosmetics Act of 1940, Drugs (Price Control) Order, 1970 and the Essential Commodities Act. The person who actually sold the drug was applicant Mohd. Fareed. It may be noted that one Mohd. Saeed was also prosecuted and convicted by the trial court but his appeal was allowed by the learned Ses-sions Judge, who, however maintained the conviction of the present applicants. The fine imposed by the trial court was reduced to Rs. 125a under the Essential Commodities Act and Rs. 375/- under the Drugs and Cosmetics Act.

(2.) IT seems to be admitted that one tube of Boroline was sold by Mohd. Fareed to the Drug Inspector for a sum of Rs. 1. 50 on 12-81971. It is also admitted that this tube was sold in the premises known as Messrs. Button House and the partners of this firm are Mohd. Saeed, Abdul Moid, Abdul Majeed and Mohd, Amin. Again it is further admitted that the firm had no licence for selling Boroline and that the price charged was in excess of the price noted on the tube plus taxes. The main point which was raised by the learned Counsel for the applicants was that Boroline was not a drug as defined by Section 3 (b) of the Drugs and Cosmetics Act, 1940. Sub-clause (1) of Clause (b) defines drug as medicine for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals. I need not refer to Sub-clause (2) because this relates to certain substances which are used for destruction of vermin or insects. The learned Counsel for the applicants argued that Boroline was essentially a cosmetic with antiseptic qualities and that it could not be used for treatment or prevention of any disease in human beings. It may also be, therefore, necessary to refer to the definition of Cosmetics in the said Act. A Cosmetic has been defined as an article which is intended to be rubbed, poured, sprinkled or sprayed or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance. It has now therefore to be found out whether Boroline is really meant to be used as a cosmetic or a drug.

(3.) A perusal of the carton and the leaflet enclosed will show that this article contains : (1) Boric Acid ; (2) Zinc Oxide ; (3) White petroleum Jelly and (4) anhydrous lanalyn I. R. The leaflet accompanying the tube says that Boroline can be used to cure minor sores on the ears and sores between toes. It can also be used to relieve minor skin injuries and to guard against possibilities of infection in cuts. Apart from these curative and preventive properties, Boroline can also be used to sooth dry skin and as protective against sun burns. The learned Counsel for the applicants, therefore, contended that prevention of infection was not the same thing as prevention of :