B.D. Gupta, J.
1. Applicant Jagat Prakash was the proprietor of a Medical Store at Shamli known as 'Singhla Medical Store'. On the 25th of May, 1968, Sri K. S. Selot, Drugs Inspector, Meerut Range, visited the said Medical Store and purchased a few cartons including carton Ext. 1 purporting to contain a drug described as 'Durabolin' for a sum of Rs. 54.25P. On examination by the Public Analyst the contents of the cartons, which were in ampules inside the cartons, were found to be spurious. The applicant was, therefore, sent up for trial for the offence punishable under Section 27 read with Section 18 of the Drugs and Cosmetics Act, 1940. The applicant pleaded not guilty. He admitted sale of the cartons in question to the Drugs Inspector. The assertion which he, however, made was that he had sold those cartons in the same condition in which they had been received by him as part of a consignment which had been supplied to him by Messrs. Martin and Harris (Private) Ltd., Lucknow. The applicant put himself in the witness-box under Section 342-A, Criminal Procedure Code and also examined his servant Salek Chand in defence. The trial Court convicted the applicant and sentenced him to simple imprisonment for one year and a fine in a sum of Rs. 1,000/-. The appellate Court maintained the conviction but modified the sentence by setting aside the sentence of imprisonment. The sentence of fine was, how-; ever, maintained. The applicant then approached this Court in revision. After hearing learned Counsel for the parties on a previous date, I considered it necessary to send for the original exhibits consisting of a carton sold by the applicant to the Drugs Inspector, as also a carton containing the genuine medicine. The aforesaid exhibits in original having been received, I heard the learned Counsel for the parties today and after scrutinising the material, I find myself unable to maintain the finding of conviction.
2. It is not in controversy that the applicant had placed an order with Messrs Martin and Harris (Private) Ltd., at Lucknow for supply of the drug in question and, further, that in pursuance of that order Messrs. Martin and Harris had, by parcel post, sent a consignment. In support of its case the prosecution examined among others one Mr. V. Kumar (P. W. 2) who had been the mediT cal representative of Messrs. Martin anci Harris since 1963. His evidence throws no light whatever on the question whether the eoods despatched by Messrs. Martin and Harris for delivery by post to the applicant were genuine. The applicant's defence as has been stated earlier, was that be sold to the Drugs Inspector cartons out of those received by him from Messrs. Martin and Harris. Sri V. Kumar (P. W. 2), during the course of his evidence, delivered to the Court a small carton containing one ampule of the genuine 'Durabolin' manufactured by Messrs. Martin and Harris (Private) Ltd. This carton, according to his statement was a carton which the company (Messrs. Martin and Harris) supplied to doctors bv way of sample. In regard to carton exhibit I. which is of a much larger size and contains three ampules, the statement of Sri V. Kumar was that it was a carton of the larger size which was packed and despatched to chemists for purpose of sale. It is true that a careful comparison of the two cartons would disclose the printing, the paper of the carton containing three ampules somewhat inferior to that of the sample carton containing the ampule with the genuine medicine. It must at the same time, be noted that no carton by way of sample containing three ampules of the genuine medicine was placed before the Court and, therefore, it could not be said on the basis of the nature of paper and printing of the sample carton that the carton supplied by the Company containing three ampules of the genuine medicine was different from the carton which contained the ampules sold by the applicant to the Drugs Inspector. It must be noted here that it is not in controversy that the Batch number of the drug received by the applicant purported to be the same as the Batch number indicated by the Company as having been despatched by them. It is a matter of regret that the prosecution did not examine any employee of Messrs. Martin and Harris who may have made a statement to the effect that the drug despatched by the establishment of the Company at Lucknow to the applicant was genuine. There is thus nothing to belie the statement of the applicant read with that made by his servant that he supplied to the Drugs Inspector what he had received from Messrs. Martin and Harris in complete igno ranee of the fact that the contents of the carton were spurious. Clause (3) of Section 19 of the Drugs and Cosmetics Act provides as follows:-
A person not being a manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves-
(a) that he acquired the drug or cosmetics from a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and
(c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it.
3. Keeping in view the evidence led on behalf of the defence and the state of material placed on record on behalf of the prosecution. I have no doubt in my mind that in the circumstances of the case the applicant is fully protected by Clause (3) of Section 19 quoted above. It is not possible to hold that the applicant must have known that the contents of the carton sold by him to the Drugs Inspector contained ampules the contents of which were spurious. The statement of the applicant that he supplied to the Drugs Inspector what he had received from Messrs. Martin and Harris might very well be true,
4. Accordingly, this revision is allowed, the conviction of the applicant and the sentence awarded to him are set aside and he is acquitted of the charge on which he was tried. Such fine, if any, as may have already been realised from the applicant, shall be refunded to him.