TMI Blog1958 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Central Drug Laboratory are not exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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