- (1.) THIS is an application under Section 561-A of the Code of Criminal Procedure. The facts leading to the presentation of this application. briefly stated, are as follows.
(2.) FOUR Packets of 100 Prednisone tablets were kept at the shop of M/s. Mishra Brothers Kanpur. when on 22nd February. 1966, Shri G. R. Jain Inspector of Drugs. Kanpur Region, collected all those four packets from the shop of M/s. Mishra Brothers and sent the same to the Central Drugs Laboratory, Calcutta, for analysis and report. The report received from the Director. Central Drugs Laboratory. Calcutta, was that the tablets were not of standard quality, Sri G. R. Jain, therefore, lodged a complaint against Ram Shanker. partner of M/s. Mishra Brothers. Kanpur. under Section 27 of the Drugs and Cosmetics Act Act XXIII of 1940 (hereinafter referred to as the Act ). The City Magistrate, Kanpur, by his order dated 27-5-1959 convicted the applicant under Sections 18 (a) (i) (a) and 18 (a) (ii) (a) of the Act and sentenced him to one month's rigorous imprisonment and also to a fine of Rupees 500/- or in default to further one month's rigorous imprisonment. The appeal preferred by the applicant against the order of his conviction was dismissed by the Additional Sessions Judge. Kanpur, on 27th October, 1969 The applicant filed an application in revision against the order of the learned Additional Sessions Judge, dismissing his appeal. That revision application came up for consideration before a learned single Judge of this Court, who. by his order dated 30th April, 1971, dismissed the revision application.
(3.) THE main contention of the applicant is that he has been prejudiced very much as a result of the act of the Drugs Inspector in sending the sample direct to the Director of Central Drugs Laboratory. Calcutta, for analysis and obtaining a report from the Director before the prosecution was launched. Sri K. L. Mishra for the applicant has invited our attention to the provisions of Sections 23 and 25 of the Act, Section 23 of the Act provides that after taking the sample and dividing it into four parts and sealing all the parts in the presence of the dealer from whom the sample was taken the Inspector should send one sealed portion to the Government Analyst for test or analysis and produce the second portion to the Court before which proceedings, if any. are instituted in respect of the drug. The learned Counsel has also invited our attention to the provisions of Sub-section (41 of Section 25 of the Act. which reads as follows: Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under Subsection (3) notified his intention of adducing evidence in contravention of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug or cosmetic produced before the Magistrate under Sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the fact stated therein. ;