M.H. Beg, J. - (1.) THE Applicant, who has been convicted Under Section 27(b) of the Drugs Act and sentenced to pay a fine of Rs. 300/ - , and, in default of payment of fine to undergo three months' S.I., prays for interference by this Court in revision.
(2.) THE Applicant runs a shop under the name of M/s. Ranjit Bros, and holds a licence for selling medicines (Ex. Ka 1). Under the terms of this licence, the Applicant is not allowed to either sell of stock or exhibit; for sale certain drugs listed in Schedule C falling under the classification Sera, Vaccines, and Antitoxins .On 10 -9 -1963, Sri R.K. Arora, PW 1 the Drugs Inspector, Agra, inspected the Applicant's shop and found certain violations of the Drugs Act (hereinafter referred to as the Act) and the rules made thereunder. He drew up a report (Ex. Ka 5) in which he set out the alleged violations which consisted of: (1) Keeping certain drugs stocked in an almirah inspite the expiry of the dates beyond which these medicines could not be used; (2) stocking of certain Vaccines and other drugs contrary to the terms of the licence; (3) failing to maintain the prescription register and drug register required by the rules under the Act. Both the courts below have accepted the prosecution case and affirmed the conviction and sentence of the Applicant who is also shown in the charge to have been previously convicted Under Section 27 of the Drugs Act and fined Rs. 100/ - on 9 -11 -1959. It has been contended vehemently by Mr. G.D. Srivastava, appearing on behalf of the Applicant that the sole evidence in this case is that of the Drugs' Inspector who did not carry out the search and seizure of the medicines in accordance with Section 103 Code of Criminal Procedure. Reliance was placed upon Section 22 of the Act which gives powers to Inspector who has to exercise these powers subject to the procedure given in Section 23 of the Act. Amongst the powers of the Inspector is a power to inspect any premises where drugs are being manufactured, the power to take samples of any drug which is being manufactured or sold or stocked or exhibited for sale, the power to enter all such places where he reasonably believes that an offence against the Act is being committed, and to seize the stock of such drugs, the power to examine records, registers and documents and to seize these if they furnish evidence of the commission of any offence. Section 22 Sub -section (2) reads as follows: The provisions of the Code of Criminal Procedure, 1898, shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued Under Section 98 of the said Code.
(3.) THE contention of Mr. Srivastava is that no seizure of medicine is possible without an entry of the premises and a search so that the provisions of Section 103 Code of Criminal Procedure ought to have been complied with. He relies on three decisions of this Court for contending that a violation of Section 103 Code of Criminal Procedure is an impropriety which would vitiate a conviction. The first of these is Sadlu v. Emperor : AIR 1934 All. 374. This is a case in which a police officer had chosen witnesses of questionable respectability deliberately. The next case, Bishnath Rai v. Rex : AIR 1950 All 147, was a case in which it was held that, in the absence of evidence to prove circumstances showing that compliance with Section 103 Code of Criminal Procedure was not possible, the violation would be enough to vitiate a conviction. Tittar and Anr. v. State, 1953 AWR 159= : AIR 1953 All. 506 lays down that evidence is liable to be reviewed in revision for a violation of Section 103 Code of Criminal Procedure. The latest decision of the Supreme Court in Sunder Singh v. State of Uttar Pradesh : AIR 1956 SC 411, however, lays down that the violation of Section 103 Code of Criminal Procedure only affects the weight of evidence of recovery and cannot affect the legality of the proceeding itself.;