Skip to content


Public Prosecutor Vs. Hatam Bhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 565 of 1965
Judge
Reported inAIR1969AP99; 1969CriLJ368
ActsDrugs and Cosmetics Act, 1940 - Sections 21, 22, 23, 25 and 32(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 156(2), 190, 190(1) and 537
AppellantPublic Prosecutor
RespondentHatam Bhai and ors.
Appellant AdvocateP. Innayya Reddy, Adv. for ;Public Prosecutor
Respondent AdvocateB. Madhava Reddy, Adv. for ;Sharif Mohammed
Excerpt:
criminal - seizure - sections 21, 22, 23, 25 and 32 (1) of drugs and cosmetics act, 1940 and sections 156 (2), 190, 190 (1) and 537 of criminal procedure code, 1898 - appellant challenged acquittal of accused - drug inspector (di) seized medicines from accused's shop and on analysis found them misbranded - as per section 21 and 22 di had power to carry on search and seizure from shop of accused - act of 1940 does not prohibit appointment more than one inspector for any area - held, impugned seizure held to be valid. - - 3. on 3-7-1963, on getting information that the accused have been selling misbranded and spurious drugs like tincture iodine, eucalyptus oil, glucose powder and woodwards celebrated gripe water etc. these inspectors would enjoy the powers mentioned in the section.....1. this is an appeal from the judgment of the 4th city magistrate, hyderabad given on 16th march, 1965, whereby the learned magistrate acquitted the accused. 2. the essential facts are that the accused are the partners of the shop named and styled as 'fida hussain all hussain' medical and general stores, begum bazar, hyderabad. the accused held licence no. 117/62 in form 20-a and 148/62 in form 20-b issued on 1-1-1962 by the drugs controller, andhra pradesh. the accused deal in medicines manufactured by various firms. 3. on 3-7-1963, on getting information that the accused have been selling misbranded and spurious drugs like tincture iodine, eucalyptus oil, glucose powder and woodwards celebrated gripe water etc., the drugs inspector (p. w. 1) accompanied by p. w. 2 drugs inspector.....
Judgment:

1. This is an appeal from the judgment of the 4th City Magistrate, Hyderabad given on 16th March, 1965, whereby the learned Magistrate acquitted the accused.

2. The essential facts are that the accused are the partners of the shop named and styled as 'Fida Hussain All Hussain' Medical and General Stores, Begum Bazar, Hyderabad. The accused held Licence No. 117/62 in Form 20-A and 148/62 in Form 20-B issued on 1-1-1962 by the Drugs Controller, Andhra Pradesh. The accused deal in medicines manufactured by various firms.

3. On 3-7-1963, on getting information that the accused have been selling misbranded and spurious drugs like Tincture Iodine, Eucalyptus Oil, Glucose Powder and Woodwards Celebrated Gripe Water etc., the Drugs Inspector (P. W. 1) accompanied by P. W. 2 Drugs Inspector Nanded, and a Police Officer and Panchayatdars went to the shop of the accused at about 3 p. m. They sent one Suryakanth (P. W. 3) to purchase specimens of drugs. Accused 1 was at the counter and was at the counter and was selling medicines. P. W. 3 purchased Tincture Iodine, Eucalyptus oil, Woodwards Celebrated Gripe Water, Glucose Powder along with some other general goods and paid three currency notes of ten rupee denomination, each of which were initialled as M. V. R. by the Drugs Inspector P. W. 1.

4. After having purchased the above said drugs from the accused's shop, P. W. 3 signalled to P. W. 1 and the party who were waiting outside the shop at a distance. P. W. and the Party came and seized the goods which were purchased by P. W. 3. They seized also the three currency notes from the possession of the 1st accused and also bottles of the above mentioned medicines from the shop of the accused.

5. Samples of these medicines which were seized from the accused's shop were sent to the Government Analyst for analysis and report. The Woodwards Gripe Water sample was also sent to the concerned company in order to find out whether the drug was prepared by that company. The report of the Public Analyst showed that the drugs sold by the accused were misbranded and were not of standard quality and were not in conformity with the schedule to the Indian Drugs and Cosmetics Act (XXIII of 1940) hereinafter referred to as 'the Act' The accused therefore were charge-sheeted by P. W. 4 the Drugs Inspector under Sections 18(a)(i), 18(a)(ii) and 18(b) read with Section by 27 of the Act, The charge-sheet was filed under the signature of P. W. 4 on 18-4-1964.

6. The accused denied the charges, They contended that no medicine was seized from their shop nor the 1st accused sold any medicine to P. W. 3.

7. In support of the prosecution, eight witnesses were examined and several documents were marked. The accused did not produce any evidence nor did they mark any documents. Upon this material, the learned Magistrate found that the three accused are the partners of the firm of Messrs. Fida Hussain Ali Hussain, General Merchants, that the drugs were sold by accused 1 on behalf of the firm to P. W. 3 on the date when the occurrence took place that the drugs were seized and samples were sent to the Government Analyst and that the Government Analyst's report is that the Tincture Iodine, Woodwards Celebrated Gripe Water and Glucose Powder were not genuine, that they were of sub-standard quality, that the Gripe Water was not of the real Company and that the Company, Messrs. C. N. & Co., under whose name the bottles were labeled and sold was not in existence nor was it registered. The learned Magistrate however acquitted the accused solely on the ground that P. W. 1 was not the Drugs Inspector for Hyderabad City and the investigation which he carried on was illegal and therefore the proceedings before the Magistrate were not proper and valid. It is this view of the learned Magistrate that is now challenged in this appeal by the State.

8. The principal question to be answered in the appeal is whether the investigation conducted by P. W. 1 and the search and seizure which he carried on of the drugs and the samples which he sent to the Government Analyst for analysis are proper and legal, and if not, how does it affect the validity of the trial before the learned Magistrate.

9. In order to understand the implications of this question it is necessary to read some of the provisions of the Drugs and Cosmetics Act. Section 2(e) defines the 'Inspector' to mean '(I) in relation to Ayurvedic (including Sidha) or Unani drug, an Inspector appointed by the Central Government or a State Government or a State Government under Section 21' Section 21 authorises the Central or the State Government to appoint such persons as it thinks fit having the prescribed qualifications by a notification in the Official Gazette, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be assigned to them by the Central Government or the State Government, as the case may be Every Inspector according to that Section is a public servant within the meaning of Section 21 of the Indian Penal Code. His powers and duties would be those which may be prescribed. Section 22 lays down the powers of Inspectors. These Inspectors would enjoy the powers mentioned in the Section within the local limits of the area for which they are appointed. The Inspector can inspect any premises, take samples of any drug, enter and search. examine any record etc., or exercise, such powers as may be necessary, for carrying out the purposes of the said Chapter or the rules made thereunder. Section 23 lays down the procedure to be followed by the Inspectors when they take samples and send the same to Government Analyst, Section 25 relates to the report of the Government Analyst. Sub-section (3) of that Section which is more relevant for the purpose of this inquiry, reads as follows:

'(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18A has within twenty days of the receipt of a copy of the report, notified in writing to the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.'

The next relevant Section is Section 32, Under that Section, no prosecution under Chapter IV of the Act can be instituted except by an Inspector and no court inferior to that of a Presidency Magistrate or of a Magistrate of the first class try an offence punishable under the said chapter.

10. A careful and close reading of these provisions undoubtedly indicates that an inspector has to be appointed by the State Government by a notification if he fulfills the required qualifications. He has certain powers and duties under the Act and the Rules which include the power to inspect. carry on the search and seize goods and send the samples to Government Analyst apart from other powers and duties. The samples that are thus submitted to the Government Analyst are analysed by the Government Analyst and the report submitted by him would subject to certain things be conclusive proof of the facts mentioned therein. The Inspector has to follow certain procedure at the time of seizing the property, to the Government Analyst, Lastly, no prosecution can be initiated except by the Inspector.

11. In this case, the contention has been that P. W. 1 was appointed as Drugs Inspector for Hyderabad District which does not include the cities of Hyderabad and Secunderabad as a separate person was appointed for the twin cities. My attention was drawn to the Government notification issued in reference to their appointment. Exhibit P.36 dated 30-5-1963 According to the notification, one Sri B. V. Ramanarao was appointed as the Inspector for the twin cities of Hyderabad and Secunderabad, and P. W. 1 was appointed for Hyderabad District. Medak District and Mahaboobnagar District. Now, it is not seriously disputed that the Revenue District of Hyderabad includes the twin cities of Hyderabad and Secunderabad. In appointing P. W. 1 for the area of Hyderabad District no specific mention is made excluding the area of the twin cities of Hyderabad and Secunderabad, it would not be reasonable to exclude that area from the area of Hyderabad District for which area P. W. 1 was appointed. There is no justification for such construction. At least it is not clear from the notification. Given a plain meaning to the term, Hyderabad District, in my view it would include the twin cities of Hyderabad and Secunderabad. It may be that for the twin cities of Hyderabad and Secunderabad, there would be two Inspectors. The Act does not prohibit the appointment of more than one Inspector for the same area. I therefore do not agree with the contention that merely because Mr. Ramanrao was appointed for twin cities, I should hold that although P. W. 1 was appointed for the whole of Hyderabad District it excludes the area of twin cities of Hyderabad and Secunderabad. From that point of view the search and seizure made by P. W. 1 who also had obtained samples and sent them to Government Analyst would in no manner be called as illegal.

He was a person rightly appointed under Section 21 of the Act for the Hyderabad District which included the two cities. He therefore had power to carry on search. seize the drugs from the shop of the accused. obtain samples and send the same to the Government Analyst. Any report submitted by the Government Analyst on the basis of these samples cannot be said to be suffering from any infirmity. In any, case, the prosecution itself cannot be bad because it is not P. W. 1 who instituted the complaint but it is P. W. 4 who admittedly had been appointed for the twin cities of Hyderabad and Secunderabad at the time when the complaint was lodged with the trial Court. The lower Court therefore in my view, went wrong in treating P. W. 1 as the Inspector of Drugs for the Hyderabad District excluding the twin cities of Hyderabad and Secunderabad and in characterising his investigation as illegal.

12. Assuming that P. W. 1. the Inspector who was appointed for Hyderabad City, had carried on the Investigation in an area where he was not competent to investigate. I do no think because of that, the trial before the Court below could in any manner, be vitiated, Section 156(2) Cr. P.C. enjoins:

'No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.'

This provision of law makes it abundantly plain that failure to properly conduct the investigation into an offence cannot vitiate a trial of a case started on the report of an Inspector under Section 32(1) of the Act. The defect or illegality in investigation however serious it may be has really no direct bearing on the competence to take cognizance by the Court or on the procedure of trial. It is not possible to contend in view of clauses (a) to (c) of Section 190(1). Cr. P.C. that if the investigation is illegal or the report is invalid. the Court cannot take cognizance of such a case. Even the invalid report of a police officer may fall either under clause (a) or (b) of Section 190(1). Cr. P. C. It must be remembered that in any case cognizance taken on the basis of an invalid report is in the nature of an error in a proceeding antecedent to the trial and to such a case. Section 537 Cr. P.C. would be attracted, What must follow is that if cognizance is in fact taken by a Court on a report of the Inspector who was not competent to either investigate or institute criminal proceedings by way of report. there is very little doubt that the trial which followed cannot be set aside unless the Court is satisfied that the illegality committed in the course of an investigation or institution of the report is shown to have brought about a miscarriage of justice. Any investigation, therefore, carried on by an inferior officer where a superior officer alone was authorised to investigate or it was carried on by an inspector outside his area of jurisdiction who was not competent to conduct the investigation can at best be only an irregularity which is curable under Section 537, Cr. P. C.

It would not be right to regard the entire proceedings based on the report of an Inspector who was not competent to investigate as bad if the evidence which as tendered before the Court had been found to be uninfluenced by the irregularities and which independently leads to a particular conclusion. It is therefore, clear that the conviction or acquittal does not depend upon the question as to which particular officer actually conducted the investigation which resulted in the trial. That has to be determined wholly by the evidence that is given at the trial. I am therefore clearly of the view that the lower Court was not disentitled from trying this case which was brought before it on a report made in that behalf by P. W. 4 who was the Inspector for Hyderabad and Secunderabad cities. He may not have conducted the investigation himself but he was competent to lodge the complaint, Merely because P. W. 1 was not authorised to investigate in the area of Hyderabad city, the report filed by P. W. 4 does not suffer from any infirmity nor the cognizance taken on the basis of such report by the lower Court can be said to be bad in law.

13. That this view is correct is seen from the following decisions. In Shivbhat v. Emperor , AIR 1928 Bom 162, Fawcett, J., who spoke for the Bench said:

'I think the main thing to bear in mind is that a conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered. has, in the first place, been elicited by an Inspector or by a Sub-Inspector is of very minor importance and does not really affect the result of a trial, except to this extent: that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his enquiry is likely to be. I certainly can see, in a case of this kind no sufficient reason why the irregularity should not be held to fall under Section 537 Criminal P.C.'

14. In State Government M. P. v. Bhagirathi, AIR 1955 Nag 204 the learned Judges observed at page 206.

'The question in each case depends upon whether prejudice has been occasioned or is likely to have been occasioned due to the non-compliance. The question whether the evidence has been elicited by an officer not authorised to investigate does not appear to have much bearing on the merits of the case, the decision of which rests entirely on the evidence appearing against the accused at the trial. It is, therefore, not right to regard the entire proceedings based on the charge-sheet reported by an officer who was not competent to investigate to be bad if the evidence tendered has been found to be uninfluenced by the investigation and independently leads to a particular conclusion.'

Krishen Kumar v. The State, (FB), is to the same effect.

14A. Subba Rao, J., (as he then was) in State of U. P. v. Bhavgwant Kishore, : 1964CriLJ140 said at page 226:

'The question is not whether in investigating an offence the Police have disregarded the provisions of the Act. but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is therefore necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and where the accused has full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation there must be sufficient nexus either established or probabilized between the conviction and the irregularity in the investigation.'

15. H. N. Rishbud v. State of Delhi, : 1955CriLJ526 provides a complete answer to the contention that illegality in the investigation vitiated the trial. The said decision holds:

'........... where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.'

16. IN Kuruma v. The Queen, 1955 AC 197 their Lordships held:

'The test to be applied, both in civil and criminal cases in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained.'

17. What emerges from the above said discussion is that the validity of the trial does not depend upon the validity of the investigation conducted unless of course any irregularity or illegality in the matter of investigation results or is likely to result in miscarriage of justice. The evidence collected during an illegal investigation does not necessarily become inadmissible on that account if it is otherwise relevant. The Court can always scrutinise it by the same method as any other evidence is scrutinised. IF on the evidence adduced at the trial it can satisfactorily be made out that the accused has committed the offence the Court, in spite of irregularities in the matter of investigation would be justified in convicting the accused. On the other hand if the evidence given at the trial cannot independently make out the case and if the evidence is influenced by the improper investigation, the Court would naturally not convict the accused on such evidence. What was to be seen in cases of improper investigation is whether it has occasioned miscarriage of justice, or is it likely to cause prejudice to the accused. If the objection in regard to irregularity in investigation is taken at the earliest stage, it has to be of course set right.

18. Viewed in this background, the fact that the investigation was conducted by P. W. 1 outside the area of his jurisdiction as Inspector or the fact that it is he who took the samples of the it is he who took the samples of the medicines from the accused's shop and sent the same to the Government Analyst does not, in my view, in any manner vitiate the trial, nor does it make the report of the Government Analyst nonetheless a report under Section 25 of the Act. No fault therefore can be found with the report submitted by the Government Analyst nor can it be validly contended that the report filed by P. W. 4 because of the investigation carried on by P. W. 1 could not validly form the basis for taking cognizance by the Court. The Court was right in taking cognizance of the case on the report submitted by P. W. 4 Nothing particular was brought to my notice on the basis of which it could be said that miscarriage of justice was occasioned or there was likelihood of any prejudice being caused to the accused in the matter of their defence or leading evidence.

19. It is in this connection pertinent to note that no objection in regard to any irregularity in the conduct of investigation was brought to the notice of the Trial Court at a sufficient early stage. In Din Dayal v. State of U. P. : 1959CriLJ1120 it was held that all objections regarding the irregularity in an investigation ought to be raised at the earliest stage of the trial. I am therefore satisfied that since no objection was raised at a sufficiently early stage of the trial not it was shown that the irregularity caused by the investigation by P. W. 1 has in fact caused any prejudice to the accused in the matter of their defence or adducing evidence, the trial conducted by the learned Magistrate did not suffer from any infirmity. The lower Court, therefore in my view was entirely wrong in acquitting the accused only on the ground that.

'P. W. 1 had no jurisdiction over the area where the shop of the accused is situated. Hence there is no compliance of the strict provisions of law. The proceedings are not proper and valid.'

20. In this connection, I have also to consider whether the samples taken and sent by an unauthorised Inspector, assuming P. W. 1 to be so, could have been analysed by the Government Analyst under Section 25 of the Act and if he so analyses and submits a report what is the evidentiary value of such a report. It would not be, in my view, correct to argue that Section 23 comes into operation only when a sample is taken by an authorised Inspector. If it is taken by a person who is not an authorised Inspector, it cannot be validly contended that in such a case Sections 23 - 25 would not apply. Even if an unauthorised Inspector, of course, after following strictly the procedure laid down , gets the sample analysed from a Government Analyst and the Government Analyst sends the report signed by him, such a report, in my opinion, can certainly be substantive evidence of the facts mentioned therein and it is not necessary to examine the Government Analyst as a witness to prove his opinion.

21. Even if P. W. 1 who although following the procedure strictly had submitted the sample to the Government Analyst, was not authorised to exercise those powers in Hyderabad City, the sample submitted by him nevertheless would be deemed to have been submitted for the analysis under Section 23 and the special rule of evidence contained in Section 25(3) of the Act would apply to the report. The report would be conclusive evidence of the facts mentioned therein without any formal proof of the same. It is immaterial whether the Inspector is regarded as an officer or a private individual. What is important to bear in mind is that the safeguards which Section 23 of the Act provides, if compiled with, then there can be little doubt that the report submitted by the Government Analyst would be conclusive evidence of the facts mentioned therein.

22. I am fortified in my opinion by the following decisions. In Sawal Ram v. Emperor, AIR 1934 Cal 858 a Bench of the Calcutta High Court held:

'Even if the Sanitary Inspector who submits the samples to the Analyst is not authorised to exercise those powers in that particular place, samples submitted for analysis under the Act, and the special rules of evidence contained in Section 14 under which the Public Analyst's certificate is made admissible in evidence without formal proof will apply. It is immaterial whether the Sanitary Inspector, be he regarded as an official or as a private individual obtained possession of the samples in strict accordance with the provisions of the Act or not. What is important is that the safeguards which the Act lays down in Section 11 should be compiled with.'

23. In Mahindra Nath v. Jyotish Chandra, AIR 1937 Cal 60 a Bench of the Calcutta High Court held that the Sanitary Inspector could take samples and sent them to public analyst for examination by the provision of he Act, as a private individual under Section 9.

24. In this connection Raj Kishan v. State, : AIR1960All460 must also be noticed. In that case, M. C. Desai, J., observed:

'If it is taken by a person who is an Inspector for a certain purpose but not for the purpose of taking a sample, Sections 23, 24, 25 etc., will not apply and even if he gets the sample analysed by a Government Analyst and the Government Analyst sends his report signed by him, the report cannot be evidence of the facts stated therein. The Government Analyst may in that case be examined as a witness to prove his opinion by oral testimony but his report itself would not be evidence.'

For the reasons which I have already stated, with due respect to the learned Judge, I find it difficult to agree with this view. When the safeguards provided in Section 23 of the Act are rigidly followed and the samples taken are sent to the Public Analyst. I fail to see why the report signed by the Public Analyst cannot fall within the purview of section 25 and why the rule of evidence mentioned in sub-sec. (3) of S. 25 cannot be attracted to such a case. I would with due respect prefer to follow the two Calcutta Bench decisions referred to by me above. Since the accused as is required under sub-section (3) of Section 25 did not notify in writing to the Inspector or the Court that he intended to adduce evidence in controversion of the report, the lower Court was right in admitting the report in evidence and treating it as conclusive piece of evidence in regard t the facts mentioned in the said report. No arguments even before me, were advanced showing any violation of the procedure laid down in Section 23 while obtaining and sending the samples by P. W. 1.

25-37. (After considering the evidence the judgment proceeded)

38. It was contended before me that accused 2 and 3 cannot be held responsible as they did not sell any drug to P. W. 3 nor they could be deemed to have had any knowledge that any spurious drugs were made available for sale in their shop. It is not possible to accept this contention. They admitted that they are the partners in the said medical shop. It may be that they do not actually sit in the shop but being partners they are supposed to be aware of the medicines sold in the shop. It was not their case that in spite of their diligence, the 1st accused was carrying on trade in spurious drugs or that the trade was carried on without their knowledge. Section 34 enjoins that where an offence under this Act has been committed by a company, every person who at the time the offence was committed who was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. It was for the accused to specifically plead under the proviso to that section that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. That plea was not taken nor there is any proof in that behalf. According to the explanation attached to that section 'Company' includes a firm. Accused 2 and 3 being partners are therefore guilty of the offence by virtue of Section 34 of the Act.

39. No defence under the sub-section (3) of Section 19 also was taken. It was not the contention of the accused that they not being the manufacturers of the drugs they had acquired the drugs from a duly licensed manufacturer, distributor or dealer thereof or that they did not know and could not, with reasonable diligence, have ascertained that the drugs in any way contravened the provisions of the Act, and that the drugs while in their possession were properly stored and remained in the same state as when they acquired it, In all such cases, all that the prosecution is required to prove in order to establish the contravention of Section 18 is the fact that the accused has sold or exhibited for sale the drug which was not of standard quality or which was a misbranded drug. If the accused want to get rid of the effect of the prosecution evidence, then it is for them to establish the defences which are available to them under sub-section (3) of Section 19 of the Act. No such defence was taken. I do not therefore find any strength in the contention that accused 2 and 3 were not liable.

40. I do not find any substance in the contention that the medicines seized by P. W. 1 were with the police on the 3rd of July and since they were deposited in the Court only on 4th there was possibility of the medicines being substituted No such suggestion was put to any of the witnesses. It was not argued before the Court below: The evidence of P. Ws. 1, 3 and 4 rules out the possibility of any such substitution. The seized medicines were properly sealed is evident from, the evidence led in that behalf . The reports of the Government Analyst do not throw any doubt in regard to the seals of the material sent to him for analysis.

41. For the reasons already given, I would allow the appeal set aside the acquittal of the accused and find them guilty under Section 18(a)(i)(ii) and 18(b) read with section 27 of the Act and sentence each of them to pay a fine of Rs. 1000/- (one thousand) and in default to undergo vigorous imprisonment for two months.

JHS/D.V.C.

42. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //