N.N.Sharma - (1.) THIS appeal is directed against the order dated 10-8-1977 by Sri P. N. Chaubey, II Additional Sessions Judge, Deoria in Sessions Trial No. 3 of 1975 by which appellant was convicted under section 27 of Drugs and Cosmetics Act No. XXIII of 1940 (hereinafter referred to as the 'Act') and sentenced to two years' rigorous imprisonment; a fine of Rs. 1,000/- was further imposed on appellants in default of payment of fine he was to undergo 3 months simple imprisonment.
(2.) APPELLANT was further convicted under section 28 of the aforesaid Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100/- in default he was to undergo simple imprisonment for one month. All the sentences of appellant were ordered to run concurrently. Prosecution story, briefly stated is that appellant is proprietor of M/s. Jagdish Medical Store, Kasia, district Deoria. It was on 21-10-1972 at about 1 P. M. that Drug Inspector visited the said store. Appellant happened to be present at that store. Drug Inspector served notice Form No. 17 (Ex. Ka-1) on appellant and secured acknowledgment receipt from him (Ex. Ka-2). The sample was divided into four portions and each was sealed according to rules. One sample was made over to the appellant and another, which was subsequently produced in court is Ex. 1. One portion of this sample was sent to Government Analyst, GDL Calcutta for test and analysis under clause (1) of section 23 of the said Act alongwith the letter Ex. Ka-3. Remaining stock of Neurobion Merck from the medical store of the appellant was seized and is Ex.-2 for which receipt Ex. Ka-4 was prepared. This copy of receipt was made over to the appellant. Inspector also sent a letter to ADM Kasia, for custody of seized stock (Ex. Ka-5). He received report of Government Analyst (Ex. Ka-6) dated 20/21-7-1973 which runs as below :- "Description-Red coloured liquid in amber glass ampule. Gives positive tests for Vitamins B1, B6 and red Boaltar dye identified as Amaranth. Authentic sample of batch No. 26371 obatined from the manufacturer does not contain any red coaltar dye. Assay Found/ml. Claim/ml. Method. Thiamine Hydrochloride : 15 mg. 33 mg. U. S. P. XVIII, p-913 Pyridoxine Hydrochlorides : 35.3 mg. 33 mg. U. S. P. XVIII, p. 166. Cyanocobalamin: 179,82 mg. 333 mg. M. S. P. Reason for declaring the sample as not a standard quality- Remarks J-The sample does not conform to claim in respect of Thiamine Hydrochloride and Cyanocobalamin content. N. B.-The sample is partly adulterated and is considered misbranded under section 17B (c) (ii) of the Drugs and Cosmetics Act." It was on 6-8-1973 that Inspector sent a letter, copy of which (Ex. Ka-8) is on record along with copy of the report Ex. Ka-6 to the appellant to show cause against his prosecution within 28 days from the receipt of the letter. No cause was shown. Inspector seat a letter to Joint Director of Drugs Controller U. P. Lucknow for sanction of prosecution of appellant vide Ex. Ka-9. Ex. Ka-10 is letter from Swasthya Sewa Avam Pariwar Niyojan Nideshak, U. P. to the Assistant Drugs Controller for procuring sanction for prosecution. Drug Inspector submitted complaint in the court of Judicial Magistrate, Kasia. Magistrate committed appellant to the Court of Sessions.
(3.) IN his statement appellant denied the sampling and also alleged that as he failed to oblige Durg INspector by paying the usual bribe so he has been falsely involved in the case. Prosecution in support of their case examined Drug Inspector Sri K. S. Selat, Sri Ram Kumar Tewari PW 2 and Sri Kaushal Kishore Srivastava, Drug Clerk in the office of the Chief Medical Officer, Deoria, PW 3. No evidence was adduced in defence.;