STATE Vs. SHANTILAL CHHAGANLAL SAREIYA

JUDGEMENT

(1.) THIS is an appeal by the State against an order of acquittal recorded in favour of the respondent (original accused) Shantilal Chhaganlal Sareiya by the Metropolitan Magistrate, 28th Court, Esplanade, Bombay, on charges under Sections 18(a)(i) and (ii) and 18(b) read with Section 27 of the Drugs and Cosmetics Act, 1940, hereinafter referred to as 'the Drugs Act'.

(2.) THERE is no dispute that the respondent Shantilal is a proprietor of a concern under the name and style of Messrs. Vallabhji Bhika and Co., situate at Princess Street, Bombay 2, holding a valid licence for dealing in and selling drugs under the Drugs Act. According to the prosecution, at about the time of the commission of the offence, the Drugs Control Administration had received information that spurious Barbour's surgical linen thread was in circulation in Bombay market. The Drugs Inspector Kochar (P.W. 1) visited the shop of the respondent on December 4, 1971, when he came across stock of spurious Barbour's surgical linen thread in the shop. The respondent was present in the shop. Kochar served a prohibitory order on the respondent under Section 22(c) of the Drugs Act, prohibiting him from disposing of the stock of the said drug. On December 18, 1971, he lodged his complaint with the police. The police raided the shop of the respondent in the presence of punched. Kochar was also present. Samples were taken from the stock of Barbour's surgical linen thread kept by the respondent in his shop for sale. In course of time, a portion of the sample was sent to the Government analyst for analysis. The Government analyst Deshpande (p.w. 3) tested the sample. He found that the sample did not conform with the test for identification for silk and was found tot be cotton thread. The respondent was, therefore, prosecuted for stocking for sale sub -standard and misbranded drug. During the course of the investigation, it was found that the thread was purchased by the respondent from Messrs. Nadiad Surgical Co., Gujarat. That concern, however, did not hold any licence for manufacturing the drug. The respondent was, therefore, also prosecuted for stocking for sale a drug which was manufactured without a licence. It may be noted that another drug, viz., Pearsall is plaited and braided silk thread, was also seized from the shop of the respondent and a charge in respect of this drug levelled against the respondent was that he had stocked for sale this drug also which was manufactured without a licence.

(3.) THE learned trial Magistrate overruled the defence that Barbour's linen thread and Pearsall is plaited and braided silk thread were not found in the shop of the respondent and were in the lumber -room behind his shop. He held that the prosecution had proved that these two articles were found in the shop of the respondent. The learned trial Magistrate, however, accepted the defence that neither Barbour's linen thread nor Pearsall is plaited and braided silk thread was a drug under the Drugs Act. He did not, therefore, record a finding whether Barbour's linen thread was sub -standard or misbranded because, according to him, it was not a drug at all. He did not record any definite finding whether the Drugs Inspector Kochar's appointment was illegal. He also did not go into the question whether the respondent could be said to have stocked and exhibited Barbour's linen thread for sale. Mainly on the ground that neither of the two articles seized from the shop of the respondent was a drug under the Drugs Act, the learned trial Magistrate recorded an order of acquittal in favour of the respondent. It is this order that is being challenged in this appeal.