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Chunilal Vallabhaji Gandhi Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1060 of 1958
Judge
Reported inAIR1959Bom554; (1959)61BOMLR807; 1959CriLJ1429; ILR1959Bom1336
ActsDrugs Act, 1940 - Sections 3, 18, 21, 32, 32(1), 33, 33(1) and 33(2); Bombay Drugs Rules, 1946; General Clauses Act, 1897 - Sections 3(19) and 24; Drugs (Amendment) Act, 1955 - Sections 12; Code of Criminal Procedure (CrPC) (Amendment) Act, 1955 - Sections 251A; Central Drugs Rules, 1945
AppellantChunilal Vallabhaji Gandhi
RespondentState
Appellant AdvocateM.J. Gordhandas, Adv.
Respondent AdvocateV.H. Gumasta, Asstt. Govt. Pleader
Excerpt:
.....(xi of 1955), section 15 -- general clauses act (x of 1897), sections 24, 3(19) -- whether bombay drugs rules, 1946, stood repealed on amendment of section 33(1) of drugs act by act xi of 1955.;the bombay drugs rules, 1946, did not stand repealed on the amendment of section 33(1) of the drugs act, 1940, by the drugs (amendment) act, 1955, but must be deemed to have been re-enacted and to have remained in force under the amended section 3(1) of the act by virtue of section 24 of the general clauses act, 1897, till they were repealed by fresh rules framed by the central government in 1957. - - 3. the learned magistrate held that the vivigan ointment and menthostrine pain balm were drugs' within the meaning of the drugs act, 1940 and that the prosecution initiated against the appellant..........month. against the order of conviction and sentence this appeal has been preferred.2. c.n. patel, drugs inspector, received information on 19th october 1956 that the appellant who was trading in the name of 'vivigan products corporation' at kandivli was manufacturing drugs without obtaining a licence under the drugs act, 1940. patel then lodged a complaint with the kandivli police station against the appellant for contravention of section 18(c) of the drugs act. the police officer raided the place occupied by the appellant and attached under a panchanama certain articles found on the premises, at the time the son and daughters of the appellant were also found present and taking part in the manufacture of vivigan ointment and menthostrine pain, balm. the appellant was arrested on 20th.....
Judgment:

1. The appellant was convicted by the Presidency Magistrate, 27th Court, Mulund, Bombay, of an offence under Section 18(c) read with Section 27 of the Drugs Act, 1940, and sentenced to pay a fine of Rs. 250/- and in default of payment of fine to suffer simple imprisonment for one month. Against the order of conviction and sentence this appeal has been preferred.

2. C.N. Patel, Drugs Inspector, received information on 19th October 1956 that the appellant who was trading in the name of 'Vivigan Products Corporation' at Kandivli was manufacturing drugs without obtaining a licence under the Drugs Act, 1940. Patel then lodged a complaint with the Kandivli Police Station against the appellant for contravention of Section 18(c) of the Drugs Act. The Police Officer raided the place occupied by the appellant and attached under a panchanama certain articles found on the premises, At the time the son and daughters of the appellant were also found present and taking part in the manufacture of Vivigan Ointment and Menthostrine Pain, Balm. The appellant was arrested on 20th October 1956 and on 22nd February 1957 a charge-sheet was filed against the appellant, his son and his two daughters for offences under Sections 18(a)(i), 18(a)(iii) and 18(c) read with Section 27 of the Drugs Act, 1940 as amended by Section 12 of the Drugs Act, 1955. With the charge-sheet was lodged in court a complaint addressed to Magistrate and signed by Patel. The Presidency Magistrate, 27th Court took cognizance of the offences and framed a charge against the appellant, his son and two daughters on the assumption that the offences were to be tried in the manner of a warrant case under the procedure prescribed by Section 25A of the Criminal Procedure Code as amended by Act 26 of 1955. After the evidence of the witnesses for the prosecution was recorded, the Prosecutor appearing on behalf of the State applied that as the procedure followed by the Magistrate was inappropriate a new charge be framed against the accused. The learned Magistrate acceded to the request. He held that the procedure prescribed by Section 25A was inappropriate in view of the provision contained in Section 32 of the Drugs Act. The learned Magistrate then considered the evidence led by the prosecution ignoring the charge which was initially framed, and held that, a prima facie case was made out against the appellant and that no case was made out against the other three accused. He, therefore, framed a fresh charge for the offence under Section 18(c) read with Section 27 of the Drugs Act, and proceeded to try the appellant.

3. The learned Magistrate held that the Vivigan Ointment and menthostrine Pain Balm were drugs' within the meaning of the Drugs Act, 1940 and that the prosecution initiated against the appellant was not 'bad' even though under Section 33 of the Act no rules were framed by the Central Government at the date of the offence under the Drugs Act as amended by Act 11 of 1955. On the view taken by him, the learned Magistrate convicted the appellant and sentenced him as stated earlier.

4. In this appeal Mr. Gordhandas, who appears on behalf of the appellant, has raised four contentions: (i) that the learned Magistrate had no jurisdiction to entertain the proceedings against the accused because it was not instituted by an Inspector under the Drugs Act; (ii) that even though under Section 18(c) of the Drugs Act the manufacture for sale, or sale, or stocking or exhibiting for sale or distribution of any drug, except under, and in accordance with the conditions of, a licence issued for such purpose was penalised, no rules having been framed for the issue of a licence under the Drugs Act 1940 as amended by Act 11 of 1955, the appellant could not be convicted of manufacturing for sale a drug without a licence; (iii) that there was no evidence on the record to show that Vivigan Ointment was a 'drug' within the meaning of the Drugs Act, 1941; and (iv) that the charge framed against the appellant was vague. In our view, there is no substance in any of these contentions.

5. As we have already observed, C.N. Patel filed an information before the police at Kandivli and obtained the assistance of the Sub-Inspector in charge of that police station for raiding the place occupied by the appellant. On the record also there is a complaint addressed to the Presidency Magistrate, at Borivli, by C.N. Patel, who has described himself as a Drugs Inspector appointed under Section 21 of the Drugs Act complaining that the appellant had contravened the provisions of Section 18(a)(i), 18(a)(iii) and 18(c) of the Drugs Act and had thereby rendered himself liable for punishment under Section 27 of the Act as amended by Section 12 of India Act 11 of 1955, and praying that process be issued against the appellant and others and that they be dealt with according to law. This complaint, it is not disputed, was filed with the charge-sheet lodged in court by the police. Section 32 of the Drugs Act, in so far as it is material, provides by the first Sub-section: 'No prosecution under the Chapter (Chapter IV) shall be instituted except by an Inspector.' Mr. Gordhandas submits that in this case prosecution was not instituted by an Inspector and that the Presidency Magistrate had no jurisdiction to entertain the proceeding and to issue process against the appellant, and that the proceeding having been in its inception entertained without jurisdiction, the conviction of the appellant cannot be sustained. We are unable to hold that the prosecution in this case was not instituted by an Inspector. There was before the learned Presidency Magistrate a complaint by an Inspector under the Drugs Act charging the appellant with having committed offences under Sections 18(a)(i), 18(a)(iii) and 18(c) of the Drugs Act. That complaint having been filed in court, it cannot be said that the prosecution against the appellant was not instituted by an Inspector. It is true that the complaint was accompanied by a charge-sheet filed by the police, but, that charge-sheet may be regarded as superfluous. As a complaint was filed by an Inspector under the Drugs Act, the prosecution was competently entertained by the Presidency Magistrate, and the fact that the complaint was accompanied by a charge-sheet under the signature of the Inspector of Police did not render the prosecution instituted as otherwise than by an Inspector.

6. By Section 33(1) of the Drugs Act before it was amended by Act 11 of 1955 it was provided that the State Government may, after consultation with the Board and after previous publication by notification in the official Gazette, makes rules for giving effect to the provisions of Chapter IV and by Sub-section (2) (e) of Section 33 provision was made prescribing the forms of licences for manufacture, sale or distribution of drugs. It appears that the Central Government had framed certain model rules under the Drugs Act which were called 'the (Central) Drugs Rules, 1945,' and those rules were bodily adopted by the State of Bombay in 1946.' It was provided by Rule 2 thereof that Rule 2 and Parts V to XII of the Drugs Rules, 1945, including the connected forms and schedule, shall apply to the State of Bombay as they applied to the State of Delhi, provided that all references in the said Rules to the Central Government, Government or Chief Commissioner shall be deemed to be references to the State Government. Evidently the rules must be regarded as framed by the State Government and not by the Central Government.

7. Section 33 of the Drugs Act, 1940, was amended by Section 15 of India Act 11 of 1955, and the first Sub-section of Section 15, in so far as it is material, provides that the Central Government may, after consultation with the Board and after previous publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of Chapter IV. There is no dispute that after India Act 11 of 1955 was enacted, the Central Government did not immediately frame rules in exercise of the powers conferred by Section 33 of the Drugs Act, 1940, as amended by Act 11 of 1955. Mr. Gordhandas contends that on the amendment of the Drugs Act 1940 by Act 11 of 1955, the rules framed by the Bombay Government called the Bombay Drugs Rules, 1946, stood repealed; and no fresh rules having been framed by the Central Government, there was no authority which was competent in that behalf to issue a licence, and if their was no authority competent to issue a licence, the appellant could not be regarded as having infringed the provisions of Section 18(c) of the Drugs Act which penalised the manufacture for sale, or sale, or stocking or exhibiting for sale or distribution of any drug except under and in accordance with the conditions of a licence. It is urged that Section 18(c) postulates the existence of a licensing authority which can competently grant a license, and if there be no licensing authority, the manufacture for sale, or sale, or stocking or exhibiting for sale or distribution of any drug without a licence cannot be regarded as effectively penalised by the provisions of Section 18(c). We do not think that it is necessary in this appeal to deal with this argument because, in our judgment, the contention that on the enactment of Act 11 of 1955, which amended Section 33(1) of the Drugs Act, 1940, the rules framed by the State of Bombay stood repealed cannot be accepted.

8. Section 24 of the General Clauses Act X of 1897, in so far as it is material, provides:

'Where any Central Act ..... is, after the commencement of this act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, rule, form or bye-law, made or issued under the repealed Act ..... shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted.....'

9. The rules which were framed by the State of Bombay in 1946 were repealed by fresh rules framed by the Central Government in 1957, and the question is whether since the amendment of Section 33(1) the rules framed by the Bombay Government must be deemed to have remained in force till they were repealed or superseded.

10. Section 3(19) of the General Clauses Act, X of 1897, defines 'enactment' as inclusive of

'a Regulation .. and any Regulation of the Bengal, Madras or Bombay Code, and ..... any provision contained in any Act or in any such Regulation as aforesaid.'

It is evident from this definition that even a part of an Act is deemed to be an enactment within the meaning of the General Clauses Act. When, therefore, the Legislature has provided that rules framed under an enactment, which is repealed and reenacted with or without modification, shall, unless they are inconsistent with the provisions of the re-enactment, continue in force and be deemed to have been made or issued under the provisions so re-enacted, it must mean that the rules framed by the Bombay State must be deemed to have been re-enacted under the amended Section 33(1) of the Drugs act. It is undisputed that under the Bombay Drugs Rules, 1946, provision is made in Chapters VI and VII for granting licences for manufacture, sale or distribution of drugs. It cannot, therefore, be held that there was at the material date when the offences are alleged to have been committed by the appellant no lawfully constituted licensing authority.

11. We are also unable to agree with the contention that Vivigan Ointment is not a drug within the meaning of the Drugs Act. The prosecution examined one H.H. Banerji Director of the Central Drug Laboratory Calcutta Banerji produced before the court the formula submitted by the appellant to the Drug Controller in 1954 and renewed in the year 1955. Every drug set out in the formula is an allopathic drug. It may be that some of these drugs may also be used in the Ayurvedic or Unani systems of medicine. But the definition of the word 'drug' in Section 3(b) Drugs Act is inclusive of

'all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine.'

Mr. Gordhandas has fairly, and in our judgment rightly, conceded that the medicines and substances set out in the formula submitted by the appellant to the Director of the Centrla Drug Laboratory are not exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine. The medicines or substances which are set out in the formula must accordingly be regarded as drugs within the meaning of the Drugs Act, 1940, as amended by Act 11 of 1955.

12. The appellant had addressed a letter, dated 16th March 1956 to the Drugs Controller for the State of Bombay, on which reliance was placed by Mr. Gordhandas. It was contended by Mr. Gordhandas that it was the case of the appellant that Vivigan ointment was an exclusively Ayurvedic medicine or a preparation according to the Ayurvedic system of medicine. There is, however, on the record no evidence whatever to support that contention; and the letter on which reliance has been placed is so obscure that it is difficult to appreciate its purport. The appellant is stated to have written to the Drugs Controller that he was 'very much annoyed' and was 'compelled to divert' all his activities towards Unani and Ayurvedics which he believed were 'very much desired and encouraged by the leaders of the nation, shifting the same to some other State, perhaps to Calcutta,' It is difficult to understand what was intended by this statement. In any event, our attention has not been invited to any evidence on the record of the case which supports the view that the medicines or substances which are used for the preparation of Vivigan Ointment and Menthostrine Pain Balm are exclusively used or prepared for use in accordance with the Ayurvedic or Unani system of medicine.

13. In our view, there is no substance in the contention that the charge was in any manner vague.

14. We are of the view that the learned trial Magistrate was right in convicting the appellant: for the offence under Section 18(c) read with Section 27 of the Drugs Act. The sentence imposed upon the appellant cannot be regarded as excessive. We, therefore, confirm the order of conviction and sentence passed against the appellant and dismiss the appeal.

15. Appeal dismissed.


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