Harbans Lal, J. - (1.) The petitioner was found in possession of oxyte tracyclne and chloraphenical capsules by the Drugs Inspector. On recovery having been effected prosecution under section 28 and 27-A of the Indian Drugs and Cosmetics Act (hereinafter to be called the Act) was launched against him. On assessing the evidence, the trial Magistrate came to the conclusion that the above mentioned two drugs which were of sub-standard quality were recovered from the attache-case of the petitioner and that the said drugs had faked labels attached to them. He was convicted under section 28 and 27-27-A of the Act and was sentenced to rigorous imprisonment for one year under section 28 of the Act and to rigorous imprisonment for two years under section 27-27-A. He was also awarded a fine of Rs. 1000.00. In appeal conviction by the trial Magistrate was not challenged. The sentence under section 28 of the Act was maintained. However, the sentence under section 27-A of the Act was reduced to one year's rigorous imprisonment and fine was also reduced from Rs. 1000.00to Rs. 50.00 on default of payment of fine he was to undergo rigorous imprisonment for 3 months. Regarding sentence prayer had been made on behalf of the accused for giving him the benefit of the Probation of Offenders Act and the benefit under section 360 of the Criminal Procedure Code. The trial Magistrate, however, did not agree and was of the view that the sale of substandard and adulterated drugs was a social evil and was a menace to the health of the society. Consequently, even if the petitioner was the first offender he was not entitled to any benefit either under the Probation of Offenders Act or under section 360 of the Criminal Procedure Code.
(2.) The perusal of the judgment of the Appellate Courts shows that the Appellate Court also did not think it fit to allow the benefit of Probation of Offenders Act. No reference, however, has been made to the benefit under section 360 of the Criminal Procedure Code.
(3.) According to the learned counsel for the petitioner, the order of the Appellate Court is liable to be set aside regarding sentence only on the ground that the Appellate Court did not take into consideration the provisions of Sections 360 and 361 of the Criminal Procedure Code. The trial Magistrate gave serious consideration to the provisions, namely, Probation of Offenders Act and also sections 360 and 361 of the Criminal Procedure Code. Although there is no reference to section 360 of the Code Criminal Procedure in the judgment of the Appellate Court but the matter has been discussed in substance. It thus appears that the Appellate Court had applied its mind to both the provisions. Once a conclusion is reached that the petitioner was rightly convicted for keeping in possession considerable quantity of two life-saving drugs of sub-standard quality with faked labels attached to the same and that the came were being taken for the purpose of sale, there can be no escape from the conclusion that he was guilty of the social offence and in such a case it will not be doing justice if a lenient view is taken and the benefit of Probation of Offenders Act or section 360 of the Code Criminal Procedure is given. In Chimanlal Jagjivandas Sheth Vs. State of Maharashtra 1975 D.C. 211 : 1975 (I) F.A.C. 374 : 1951-1977 F.A.C. (S.C.) 305 : for the recovery of absorbent cotton wool, roller bandages and other things the accused was held guilty and punished under the Drugs Act. In the Supreme Court prayer was made for reducing the sentence and taking the lenient view. It was held by their Lordships of the Supreme Court as under:- "An impassioned appeal was made for reducing the sentence imposed upon the Appellant. When a similar argument was advanced in the High Court, it pointed out that this was a gross case where large quantities of spurious drugs had been manufactured by the appellant and passed of as goods manufactured by a firm of repute. The appellant was guilty of an anti-social act of a very serious nature. In our view, the imprisonment of rigorous imprisonment for three months was more lenient than severe. There is no case for interference with the sentences. The appeal fails and is dismissed.";