ORDER
K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Additional Sessions Judge, Cuttack upholding the conviction and sentence of the petitioner under Section 27(a) (i) and (ii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the 'Act').
2. Prosecution case relevant for disposal of the revision is stated below. The petitioner is the power of attorney holder of his wife Arunbala Swain who is the owner of Biraja Medical Agency, with a valid licence under the Act and the rules framed thereunder having the shop premises at Tala Telenga Bazar of Cuttack town. On 13-2-1978 the house of one Surendranath Sahu at Badambari was jointly raided and inspected by the Drugs Inspector (P.W. 1) and a Sub-Inspector of Police of Sadar Police Station (P.W. 3) and a huge quantity of drugs in the shape of patent medicines, vials of injections and ampules were seized from the said premises from the possession of the petitioner in the presence of the witnesses as per seizure list (Ext. 1). The petitioner had no licence under the Act and the rules framed thereunder either for storage or for storage for sale of the drugs in the said premises which had been rented out to him for the purpose of residence. Some of the drugs were suspected to be substandard and so out of them Zobromin Injection of vitamin B1, B6 and B12 was sent to the Government Analyst who in Ext. 6 reported that the drug was not of standard and acceptable quality because the red liquid in rubber capped glass vial contained suspended particles visible in ordinary daylight with unaided eyes. Therefore, P.W. 3 submitted a charge-sheet dated 31-7-1978 against the petitioner for having committed offences under Section 27(a) (i) and (ii) of the Act enclosing a prosecution report signed by P.W. 1 on 27-7-1978 and received at the police station on 31-7-1978 against the petitioner for having committed the aforesaid offences.
3. The petitioner in his defence raised the plea that the drugs were kept at the shop premises in Tala Telenga Bazar and were not seized from his possession in his residential house at Badambari. The raiding party took the drugs and himself to the police station.
He had no knowledge that any drug was of substandard quality.
4. The charge against the petitioner runs as follows:
That you on or about the 13th day of Feb. 1978 at Badambadi, under Madhupatna Police-station, Cutiack, were found to have stored for sale the drugs which were not of standard quality and were stocked in an unlicenced premises in contravention of Section 18(a) (i) and (c) of the Drugs and Cosmetics Act, and thereby committed an offence punishable under Section 27(a) (i) and (ii) of the Drugs and Cosmetics Act and within my cognizance.
Both the learned courts below concurrently found that the drugs as per seizure-list (Ext. 1) were seized from the residence of the petitioner at Badambari which he had taken on rent from one Surendranath Sahu. For storage of drugs in the said premises he had no valid licence under the Act and the rules framed thereunder. The drugs seized from his possession had been stocked for sale. One of the drugs namely, Zobromin was found to be of substandard quality. Therefore, the petitioner contravened the provisions of Section 18(a) (i) and (ii) of the Act and accordingly he was convicted thereunder and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/- in default, to undergo rigorous imprisonment for a further period of two months.
5. I have carefully considered the materials available on record. It was not disputed that the petitioner had taken the house of Surendranath Sahu at Badambari on rent and was living there. According to his defence, the medicines were not seized from the aforesaid residential premises but were taken from the shop premises at Tala Telenga Bazar. The evidence of P.Ws. 1 and 3 who were associated with the search and seizure and that of P.W. 2 who was an attesting witness to the seizure list (Ext. 1) conclusively proves that a huge quantity of medicines were found in the residential house of the petitioner at Badambari and were seized as per seizure list (Ext. 1). He had not produced any document to show that he had obtained a licence for storing the medicines in the said premises. It will again appear from the evidence of P.Ws. 1 and 3 that a vial of Zobromin Injection which had been seized from the said premises was sent for examination to the Government Analyst who in Ext. 6 reported that it was not of standard and acceptable quality as defined in the Act because suspended particles were detected in the liquid. In view of the aforesaid evidence, I am of the view that the concurrent findings of fact recorded by the learned courts below are unassailable.
6. Mr. S. P. Misra, learned Counsel for the petitioner, urged that the order of the learned Judicial Magistrate by which he took cognizance of the offences against the petitioner was not in accordance with law being violative of Section 32 of the Act and so the prosecution and the conviction of the petitioner was vitiated. According to him, a charge-sheet was submitted by the Sub-Inspector of Police (P.W. 3) and subsequently to remove the legal defect a prosecution report signed by P.W. 1 was submitted in court. Therefore, the order of cognizance based on the charge-sheet submitted by the police was legally impermissible.
7. According to the mandate of Section 32 of the Act, no prosecution for commission of an offence punishable under Section 27 and other provisions of Chap. IV shall be instituted except by an Inspector of Drugs. In other words, cognizance of an offence punishable under the Act can only be taken when a prosecution report is submitted by an Inspector of Drugs and not otherwise. In this case, investigation was carried by the Sub-Inspector of Police, Sadar Police Station, Cuttack (P.W. 3) with the assistance of P.W. 1, so much so that the seizure of the medicines was made as per Ext. 6 in the presence of both. The charge-sheet signed by P.W. 3 on 31-7-1978 was forwarded to the court along with the prosecution report submitted by P.W. 1. The prosecution report is Ext. 17 which was signed on 27-7-1978 and was sent to the Sadar Police Station on 31-7-1978. So it is patent that the prosecution report duly submitted by the Inspector of Drugs (P.W. 1) found its way to the court of the Judicial Magistrate along with the charge-sheet. It cannot, therefore, be said that a prosecution report by the Inspector of Drugs in consonance with the provisions of Section 32 was not submitted in the court of competent jurisdiction.
8. Argument was advanced before the learned Judicial Magistrate that in the absence of a prosecution report by the Inspector of Drugs he was not competent to take cognizance of the offence. After hearing both parties the learned Judicial Magistrate passed an order on 8-11-1978, whereby, he stated the facts and came to the conclusion that the prosecution report of the Inspector of Drugs was very much before him and so treating it as a complaint he was entitled to take cognizance of the offences and try the case according to warrant procedure which he actually did. This order was not challenged in the court of revision.
9. In order to meet the contention of the learned Counsel it is first necessary to refer to a Division Bench decision of the Bombay High Court reported in : AIR1959Bom554 Chunilal Vallabhaji v. State. The facts of the case are almost identical to the facts of the present case. In that case, the Drugs Inspector received information that the appellant (accused) who was trading in the name of 'Vivigan Products Corporation' at Kandivli was manufacturing drugs without obtaining a licence under the Act and so he lodged a complaint with the Kandivli Police Station against the appellant for contravention of Section 18(c) of the Act. The Police officer raided the place occupied by the appellant and attached under a Panchanama certain articles found on the premises. The appellant was arrested and a charge-sheet was filed against him and some other members of his family for offences under Sections 18(a) and (i) and (iii) and 18(c) read with Section 27 of the Act. Along with the charge-sheet was lodged in the court a complaint addressed to the Magistrate duly signed by the Inspector of Drugs. The Magistrate took cognizance of the offences and framed charges against the accused persons and tried the case in the manner of warrant procedure. On these facts one of the contentions raised before their Lordships of the Bombay High Court was the Magistrate had no jurisdiction to entertain the proceedings against the accused persons because it was not instituted by an Inspector under the Drugs Act. Repelling the contention their Lordships held as follows:.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.
The decision of the Bombay High Court was followed by a Division Bench of the Delhi High Court in a case reported in ILR (1969) Del 286 State v. Moti Lal. In that case a Drugs Inspector made a report to the Station House Officer of a Police Station to the effect that the accused had stocked for sale drugs without any licence. After investigation the police made a report for prosecution of the accused. Amongst the papers attached to the police report was also a complaint made by the Drugs Inspector. The complaint was addressed to the Magistrate and besides containing allegations against the accused contained a prayer 'that the accused be tried according to law and suitably punished'. It was held by their Lordships as follows:
The record of the case clearly shows that the complaint of the Drugs Inspector was one of the documents attached to the police report. In that report particulars of its annexures were given. These referred not only to the 'original writing' of the Drugs Inspector comprising of one sheet but to the complaint which was described as having three sheets. The report made by the Drugs Inspector is hand-written and comprises of one sheet only while the complaint addressed to the Magistrate (Exhibit PS) is a typed document having three sheets. It is also signed by the Drugs Inspector. It cannot, therefore, be said that the complaint was not before the Magistrate when orders for summoning the accused were passed.
In : AIR1969AP99 Public Prosecutor v. Hatam Bhai in case under the Act, it was contended before a learned single Judge of the Andhra Pradesh High Court that if search and seizure was made by a Drugs Inspector not appointed for the area where the premises searched were situate, cognisance under Section 32 was illegal and the trial was vitiated. The learned Judge held:
This provision of law makes it abundantly . plain that failure to properly conduct the investigation into an offence cannot vitiate a trial or 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 cognisance 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 or a complaint filed by an Inspector who was not competent to conduct the investigation can at best be only an irregularity which is curable under Section 537, Cr. P.C.
10. Now reverting to the case in hand it is clear that the report of the Inspector of Drugs (P. W. 1) containing the brief facts of the case against the petitioner and the offences he was alleged to have committed was addressed to the court of the learned Sub-Divisional Judicial Magistrate, Cuttack which was the court of competent jurisdiction. This prosecution report was enclosed with the charge-sheet and was very much before the court on the day cognizance of the offences was taken. Therefore, in view of the principle laid down by their Lordships of the Bombay High Court and the Delhi High Court with which I entirely agree, I hold that cognizance having been taken on the basis of the prosecution report filed by the Inspector of Drugs, the charge-sheet being superfluous, and the case having been tried according to the warrant procedure, no fault can be found with the legality of the order of cognizance and so there was no violation of the mandate of Section 32 of the Act. The contention is, therefore, without any merit.
11. The learned Counsel next urged that according to Section 22 of the Act only Inspector of Drugs is authorised to inspect premises and seize drugs and other articles. According to him, seizure of drugs by the Sub-Inspector of Police (P.W. 3) was illegal and in violation of Section 22. It is true that Section 22 has authorised Inspector of Drugs to make search of premises and seize drugs and other materials. There is, however, no prohibition in Section 22 or in any other section of the Act prohibiting a Police Officer to enter into any premises for search and seizure of drugs. On the other hand, in exercise of general powers search and seizure under Sections 90, 100 and 102 of Cr. P.C. a police Officer can enter into any premises for search if he would apprehend that any Act in force is being violated therein and also can seize incriminating articles. As a matter of fact, from the facts of the case of Chunilal Vallabhaji Gandhi (1959 Cri LJ 1429) (Bom) (supra) it appears that a Police Officer along with the Drugs Inspector had raided the place occupied by the appellant of that case and attached certain articles found in the premises under a Panchanama. No legal objection was taken on the ground that search and seizure made by the Police Officer was illegal nor did the learned Judges of the Bombay High Court found that the procedure adopted by the Police Officer was in contravention of Section 12 of the Act. In : AIR1963SC665 Chimanlal Jagjivandas v. State of Maharashtra, the facts were that a Sub-Inspector of Police accompanied by the Drugs Inspector raided the appellant's building and found large quantities of absorbent cotton wool, roller bandages, gauze and other things being stored and manufactured. Neither legal objection was raised nor any notice of the raid being undertaken by the Sub-Inspector of Police was taken by their Lordships of the Supreme Court. In this view of the matter, I am unable to persuade myself to hold that search of the petitioner's residential premises and seizure of drugs by the Sub-Inspector of Police (P.W. 3) in the presence of the Inspector of Drugs (P.W. 1) was illegal for which the prosecution was vitiated.
12. The next contention of the learned Counsel was that under Section 15(3) of the Act the report of the Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive only if the sample of the drug was collected by a Drug Inspector and sent to the Government Analyst for analysis. In the present case the sample of Zobromin Injection was neither collected nor sent by the Inspector of Drugs (P.W. 1) to the Government Analyst and so no presumption under Section 25(3) of the Act can be raised in respect of the report (Ext. 6). Therefore, in order to prove the report (Ext. 6), the Government Analyst ought to have been examined as a prosecution witness and in the absence thereof Ext. 6 was neither proved nor duly admitted into evidence and so prosecution must be deemed to have failed to prove that Zobromin Injection was not of standard quality. The contention suffers from two fallacies because of the following facts. First, the drug was collected and seized in the presence of the Inspector of Drugs (P.W. 1) and second, by original of the letter (Ext. 3/4) the Inspector of Drugs had sent the sample to the Government Analyst for the purpose of analysis. There is also no finding of the learned courts of fact that the rules with regard to packing and labelling of the sample were not followed by the Inspector of Drugs (P.W. 1). In view of the above factual position it cannot be held that there was infraction of the provisions of Section 25 and so in order to prove Ext. 6 it was not necessary to examine the Government Analyst. On the other hand, presumption under Sub-section (3) of the said section can be raised to hold that the report signed by the Government Analyst (Ext. 6) is evidence of facts stated therein and is of conclusive nature. This being the position, the report of the public Analyst as per Ext. 6 to the effect that Zobromin Injection was not of standard quality must have to be accepted.
13. The learned Counsel next urged that mere stocking of drugs is not an offence under Section 27(a) (i) or (ii) for contravention of Section 18(c) of the Act. The contention is well supported by a decision reported in : [1979]1SCR298 Mohd. Shabbir v. State of Maharashtra, in which the expressions used in Section 18(c) and 27(a) (i) and (ii) of the Act were interpreted and it was held that the prosecution must prove affirmatively that the accused was manufacturing drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. Possession simpliciter of the drugs does not appear to be punishable under any of the provisions of the Act. The facts in the context of which the aforesaid principle was laid down were that the appellant of that case was caught by the Senior Railway Sub-Inspector, Bhusawal Railway Station with 17 Plastic containers containing 17,000 white coloured tablets. Except the above fact nothing beyond was proved by the prosecution to show that the appellant had stocked the tablets for sale. But the facts of the present case are different. The petitioner is the power of attorney holder of his wife who has a valid licence under the Act and the rules framed thereunder and has a shop at Tala Telenga Bazar named and styled as 'Biraja Medical Agency' for sale of medicines. The premises from which the medicines were seized were in his occupation. It cannot, therefore, be said that it was a case of stocking of drugs simpliciter. Inference can be reasonably drawn from the above facts that the petitioner had stocked the medicines in his residential house for sale of the same according to his convenience in the medicine shop at Tala Telenga Bazar. The above view finds support from a decision reported in 1972 Cri LJ 1546 (Andh Pra) Public Prosecutor v. Mahaveer Prasad, Chinnappa Reddy, J. (as he then was) held that seizure of enormous quantity of drugs from the accused can lead to the inference that it was stocked for sale in contravention of Section 18(a)(vi). Therefore, the plea of stocking of drugs simpliciter is not available to the petitioner.
14. Undoubtedly the learned Counsel put in great labour and assailed the judgments passed by the learned courts below from several fronts, but to no avail. As discussed the contentions do not find support from law and precedents. It was a clear case in which a huge quantity of medicines was found stocked for the purpose of sale by the petitioner in the premises for which a licence under the Act and the rules framed thereunder had not been obtained. One of the items was not of standard quality. Therefore, the petitioner squarely contravened Section 18(a) (i) and (c) punishable under Section 27 of the Act. It is indeed a dangerous practice of storing medicines in a premises unknown to the authorities and without a valid licence. To stock for sale substandard medicine is hazardous endangering the life of human beings. In this context the punishment awarded to the petitioner is light and does not call for interference.
15. In the result, the criminal revision is dismissed.