Krishnaswamy Reddy, J.
1. The appellant Kanwarlal was convicted under Para 15 of the Drugs (Prices Control) Order, 1970 read with Section 7 (1) (a) (ii) of the Essential Commodities Act, and sentenced to imprisonment till the rising of court and to pay a fine of Rs. 500/. by the Second Presidency Magistrate, Madras.
2. The prosecution case is this: P.W. 1, Rajagopal, the Drugs Inspector visited M/s, Gawarlal & Co., at No. 3, Raghunayakalu Street, Madras of which the appellant was the proprietor on 29-4-1972, M/s. Gawarlal & Co., was dealing in drugs. P.W. 1. during his inspection, noticed from the sale register that the appellant had sold B, P. Batch No.-NR 37 at a higher price than the maximum retail price fixed by the manufacturer &s; per the provisions of Drugs (Prices Control) Order. P.W. 1 issued a show cause notice to the appellant under the original of ExL.P-1 on. 14-7-1973. The appellant sent a reply Ex. P-2 on 24/7/1072 stating that the manufacturer had not mentioned the retail price on the labels affixed to the Glycerine, fettles, that they did not know what the/ retail price was and. that, therefore, they sold the Glycerine at the price noted in the sale register which was verified by P.W. 1. In Ex. P-2, the appellant, also stated that they did not willfully or wantonly contravene para 15 of the Drugs Prices Control Order and requested P.W. 1, not. to take any action against them, assuring that in future they would conform to the provisions of,, the said order. Thereafter, P.W. 1 issued a show cause notice under the original of Ex. P-3 to Messrs. Scotch Pharmaceutical Works op 13-7-1972 asking them to that the maximum retail price fixed by them. P.W. 3 on behalf of the firm sent a reply Ex. P-4 on 21/7/1972 along with the price list Ex. P-5 stating that the retail price per bottle of glycerine was Rs. 7/-.
3. Since P.W. 1 was not satisfied with the reply sent by the appellant, he (P.W. 1) seized all the bill books from the Company of the appellant and filed a complaint against him. The bills seized from the appellant showed that he had sold 80 bottles of glycerin on 24-3-1972 at Rs. 8.75 p, per bottle and 20 bottles of glycerine on 24-3-1972, 26 bottles of glycerine on 25/3/1972 and 60 bottles of glycerine on 10/4/1972 respectively at Rs. 8.74 p. per bottle whereas the price fixed per bottle by the firm of P.W. 3 who waa the manufacturer of glycerine in Madras was Rs. 7/- per bottle. As per the manufacturer's price, glycerine should have been sold at Rs. 5.50 p. per bottle. The appellant was not having any retail licence.
4. When the appellant was examined, he admitted having sold the glycerine at the price stated by the prosecution. But he stated that there was no maximum price found on the label of the bottle and no price list was given to him and that he did not know the actual retail price for which glycerine should be sold
5. P.W. 3 the Partner of Messrs. Scotch Pharmaceutical Works stated that they have repacked the glycerine and supplied the same to the appellant as per vouchers Exs. P-12 to P-16. The appellant also admitted that he sold glycerine repacked by P.W. 3. P.W. 3 also stated that in all the bottles repacked by them, they have printed the maximum wholesale and retail price on the label. He swore that his company never sold glycerine without affixing the label showing the maximum wholesale and retail price-M. O. 2 the glycerine bottle which was seiied from the shop of the appellant was shown to P.W. 3. He identified that bottle as the bottle repacked by them. But, however, he stated that the label affixed in the said bottle does not show the maximum price fixed, P.W. 3 would say that they have affixed on M. O. 2 a label containing the maximum retail price and that it was found to have been removed from the label. There is no reason to disbelieve the evidence of P.W. 3 that the repacked bottles were supplied by the firm of P.W. 3 with labels showing the maximum retail price.
6. Even assuming that the labels did not contain the maximum price, the appellant being a dealer in drugs should not have sold the bottles when he did not find the retail price fixed on the labels of the bottles. It has been rightly pointed out by the learned II Presidency Magistrate that the appellant cannot have any excuse by saying that the price was not found on the labels. If that were so, he should not have sold them, He must have ascertained the price from whom he purchased the bottles and asked for the price list and should have also asked as to why the firm of P.W. 3 had omitted to print the retail price on the lables. On merits, there cannot be any doubt that the appellant sold the Glycerine bottles at a higher price and that he would be guilty of having sold at a higher price than the price fixed by the firm of P.W. 3 for the sale of a bottle of glycerine containing 400 grams.
7. The learned Counsel appearing for the appellant strenuously urged, as was done in the lower court, that glycerine is not a formulation and, therefore, para 15 (2) of the Drugs (Prices Control) Order shall not apply to glycerine, I do not find any substance in this point. Para 15 (2) of the Drugs (Prices Control) Order, 1970 is as follows:-
No dealer shall sell any formulation to a customer at a price exceeding the retail price of that formulation shown in the price list plus the local taxes payable if any.
8. There cannot be any doubt that there was a price list showing the retail price, approved by the Central Government. This list (Ex. P-5) was sent by P.W. 3 to P.W. 1.
9. The learned Counsel depends upon the statement made by P.W. 1 in his cross-examination that glycerine is a drug and it is not a formulation. But, however, he admitted that when there is a combination of one or more drugs, it would be a formulation and further stated that glycerine is also a formulation. I do not find any inconsistency in the evidence of P.W. 1. The evidence of P.W. 1 amounts to this: that glycerine is both a drug and a formulation.
10. Formulation' is defined under para. 2 (g) of the Drugs (Prices Control) Order, 1970 as under:
Formulation' means a medicine processed out of one or more bulk drugs with or without the use of any pharmaceutical aids for internal or external use in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals, but shall not include ... any medicine mentioned in, and processed and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic ... and Unani... etc.
11. Thus, it is clear that a formulation is one which is prepared with the use of pharmaceutical aid and sometimes without the aid of pharmaceutical aid and that the only ingredient necessary for a 'formulation' is that it must have been processed out of one or more bulk drugs.
12. 'Bulk drug' is defined in para. 2 (a) of the said order. It says that bulk drug is one which Is used for being processed into formulation.
13. Under Section 3 (b) (i) of the Drugs and Cosmetics Act, 1940, 'drug' is defined as follows:-
Drug' includes -(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals;
14. 'Glycerine' is used as a preservative in some pharmaceutical preparations. In the Drugs (Prices Control) Order, 1970, (1) Thymol Glycerine, and (2) Glycerine Suppositories, are mentioned as items of formulation. It is contended by the learned Counsel that 'glycerine' as such has not been included in the list of formulation and, therefore, according to him, 'glycerine' is excluded. The learned Counsel also pointed out that in the National Formulary of India which was printed in 1966, 'glycerine' does not find a place in the list of formulation, I am unable to agree with the learned Counsel. There cannot be any doubt that 'glycerine is a formulation which is processed out of the bulk drugs and it is used as a medicine for human beings. Even if there is any doubt about this, that doubt is set at rest by the approval of the Central Government of the price list of the firm of P.W. 3 where the manufacturer's price has been fixed. In the price list Ex. p-5, 'glycerine' is shown as one of the re-packed items, for which the maximum wholesale price is fixed at Rs. 5.50 p. and the maximum retail price is fixed at Rs. 7/-. Once the price list submitted by the manufacturer for particular item as 'glycerine' has been approved add when 'it i not challenged, it is not open for the appellant to say that 'glycerine1 will not come under the provisions of the Drugs (Prices Control) Order, 1970.
15. The next contention raised by the learned Counsel for the defence was that the appellant purchased the 'glycerine' sold by him from Mehta Chemical Industries, Bangalore, under invoice numbers 9777 dated 26/7/1972, 9581 dated 15/3/1972 and 9584 dated 17/3/1972 at the rate of Rs. 17/- per kilogram plus extra sales tax and the appellant purchased glycerine in drums and gave it to M/s. Scotch Pharmaceutical Works for repacking into small bottles, each containing 400 grams. This defence is only an afterthought. He had not raised this defence in the lower court; nor has he stated it in his reply Ex. P2 to P.W. 1. There is no substance in this contention. In the result, the conviction is confirmed.
16. But so far as the sentence is concerned, taking the circumstances of the case and the fact that to the show cause notice issued by P, W. 1, the appellant having assured that he would not repeat the offence and would comply with the provisions of the Act, I reduced the fine imposed on the appellant to Rupees 150/-. If the fine amount has been paid, the excess will be returned to the appellant.
17. The appeal is dismissed with the modification mentioned above.