P.N. Bakhi, J.

1. The Applicants were charged, for an offence punishable Under Section 18(a)(1) read with Section 27(b) of the Drugs and Cosmetics Act, 1940 by the City Magistrate, Jhansi on 25-10-1969. They filed a revision before the Additional District Magistrate, Jhansi which was dismissed on 29-7-1970. They have now come to this Court in revision.

2. The prosecution case is that the Inspector of Drugs, Jhansi Sri R.K. Arora inspected the premises of the Chandra Medical Stores on 9-10-1967 and took a few samples of the medicines from the said stores in the presence of Dr. Sita Ram Agrawal. He sent the samples to the Public Analyst, Lucknow in accordance with rules framed under the Drugs and Cosmetics Act. On analysis the Public Analyst declared one of the medicinces namely Liquor Iodi Mitis., B.P. to be sub-standard. Thereupon, the Drugs Inspector obtained instructions of the Controlling Authority viz., The Assistant Drugs Controller, U.P. for instituting a prosecution Under Rule 51(5) framed under the Drugs Act, 1940. On 22-2-1969, the Inspector of Drugs, Jhansi filed a complaint in the court of the City Magistrate, Jhansi against Dr. Sita Ram Agrawal, Sri Hari Ram Agrawal and Smt. Bimla Devi partners of M/S. Chandra Medical Stores and the firm M/S. Chandra Medical Stores, 81 Khataryana, Jhansi, through Dr. Sita Ram Agrawal. After recording evidence Under Section 202, Code of Criminal Procedure the City Magistrate was of Opinion that no case had been made out against Smt. Bimla Devi. She was accordingly discharged. The City Magistrate, however, found that a prima-facie case had been made out against the other three accused and accordingly he framed a charge as aforesaid against them. Hence the revision before the court below and before this Court, has been filed by Dr. Sita Ram Agrawal, Hari Ram Agrawal and M/S. Chandra Medical Stores, Jhansi.

3. I have heard counsel for the parties and have also perused the record of this case. Counsel for the Applicants has made three submissions before me.

4. He urges that the Controlling Authority had sanctioned the prosecution of Dr. Sita Ram Agrawal and M/S. Chandra Medical Stores, Jhansi only and therefore, the court below had no jurisdiction to take cognizance of the offence against Sri Hari Ram Agrawal. He also submits that the sample in question namely Liq. Iodi Mitis. B.P. should have been tested by the Government Analyst according to the standard and procedure) laid down in the Pharmacopoeia of India and that it should not have been judged from the standard of British Pharmacopoeia. Lastly, he has submitted that the sample taken by the Drugs Inspector was only 5 ml. where as according to the Pharmacopoeia of India atleast 10 ml. ought to have been taken for analysis and the deviation permissible in the quantity taken should not have been more than 10%. He submits that the constituents of such a small quantity are liable to be affected by atmospheric changes. I shall now examine the force of these arguments.

5. The relevant portion of Rule 51 of the Drugs Act and Rule 1940 reads as follows:

Subject to the insinuations of the controlling authority, it shall be the duty of an Inspector authorised to inspect premises licensed for the sale of drugs--Sub--Rule (5)--to institute prosecution in respect of breaches if the Act and Rules thereunder.

On the basis of this rule, it is argued that unless the Controlling Authority sanctions the prosecution, no complaint could be instituted against the accused persons.

6. I have considered; this submission very carefully but in my opinion, there is no force in it. It is noteworthy that the words used under this section are "Subject to the instructions of the Con-trolling Authority". The word instructions implies that the Drugs Inspector will consult the controlling authority in the performance of his duty mentioned therein. As to what these consultations will be and what instructions the controlling authority will give to him cannot from the basis of challenge in court of law. These instructions presumably would be for the guidance of the Drags Inspector in the performance of his duty. They cannot be extended to mean that Unless the Drugs Inspector obtains the sanction of the controlling authority for the purpose of instituting a prosecution of a person who contravenes the previsions of Drugs Act, the prosecution is not maintainable. In this connection reference, may be made to Section 32 of the Drugs and Cosmetics Act which runs as follows:

Cognizance of offences--(1) No prosecution under the Chapter shall be instituted except by an Inspector.

(2) No court inferior to that of a (sic) Magistrate or of a Magistrate of the first class shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this chapter. A plain reading of Section 32 clearly indicates that, what is required under this section to give jurisdiction to a Magistrate to take cognizance of an offence is, that the prosecution shall be instituted by an Inspector It is no where mentioned in this section that the courts shall not take cognizance of an offence unless sanction for prosecution has been obtained from the controlling authority. There are several enactments namely the Arms Act, the Prevention of Food Adulteration Act etc. in which sanction from a higher authority for initiation of proceedings is a pre-requisite for a court to take cognizance of an offence. The Code of Criminal Procedure itself contains Sections 195, 196(a), 197, 198 etc. which prohibit a court from taking cognizance of an offence except with the previous sanction of the higher authorities mentioned therein. For instance, Under Section 20, of the Prevention of Food Adulteration Act, no (sic) for an offence under that Act can be instituted except with the written (sic) of the Central Government or State Government or a local authority or a person authorised in this behalf. In the Drugs and Cosmetics Act, therein no corresponding provision, which could fetter prosecution of an accused, for an offence committed under that Act without the previous, sanction of higher authorities. In my opinion, therefore there is no substance in this submission made by learned Counsel for the Applicants.

7. With regard to second, submission made on behalf of the Applicants, a few relevant facts may be noted. According to the case for the prosecution the sample in question was taken from open bottle which was stocked and exhibited for sale in the shop of M/s. Chandra Medical Stores situate in 81, Khataryana, Jhansi. The Government Analyst reported these samples, to be not of the standard quality (sub-standard) vide his report No. D/521 dated 24-11-1967. This was a sample of Liq. Iodi Mitis. B.P. Batch No. 236 manufactured by the U.P. Drugs House (P) Ltd. Lucknow. In order to find out whether there was adulteration affected at the shop of the accused or whether it was the manufactures who was responsible for manufacturing a sub-standard, quality article, another sample of the same drug and of the same batch, was taken from the same premises, from a sealed bottle on 23-2-1968. This sample was also analysed by the Government Analyst, U.P. Lucknow and his report No. D/130 dated 25-3-1988 indicated that the second sample was of standard quality. Since the sample drwan from the sealed battle supplied by M/s. U.P. Drug House (P) Ltd. Lucknow had been found to be of standard quality, the responsibility for stocking and exposing for sale sub-standard sample of drugs drawn from the open bottle falls on the shoulders of the dealer. In this back ground, the point for consideration is whether the first sample taken from the open bottle stocked for sale in the shop of M/s. Chandra Medical Stores was sub-standard or not. Counsel for the Applicants suggests that the sample in question should have been tested from the standard provided in the pharmacopoeia of India. He has referred to second schedule of the Drugs Act which lays down the standard to be complied with by imported drugs and by drugs manufactured for sale, stocked or exhibited for sale or distributed. His contention is that Liq. Iodi Mitis which is a weak iodine solution has been included in the pharmacopoeia in India and therefore, the standard of identity, purity and strength prescribed in the Indian Pharmacopoeia would be applicable. It would be relevant at this stage to quote item No. 5 of Schedule 2:

5. Other drugs: (a) Drugs included in the Indian Pharmacopoeia. Standard of identity, purity and strength specified in the edition of the Indian Pharmacopoeia for the time being and such other standards as may be prescribed. (b) Drugs not included in the Indian Pharmacopoeia but which are included in any pharmacopoeia of any other country. Standards of identity, purity and strength specified for the drugs in the edition of such pharmacopoeia for the time being and such other standards as may be prescribed.

8. From a perusal of the label attached to the bottle from which the sample in question was taken, the drugs was described as Liq. Iodi Mitis B.P. This description makes it evident that it was desired by the manufacturers as well as by the sellers to exhibit to the public that the drug in question had been prepared in accordance with the standard laid down in British Pharmacopoeia. To my mind such an inference would be very reasonable. As such Clause (b) of item No. 5 of the second schedule would be applicable in the present case and the standard of identity, purity and strength specified for drugs in the British Pharmacopoeia is therefore applicable. In my opinion, therefore; the Public Analyst was quite justified in analysing the sample in question from the standard of British Pharmacopoeia. The accused cannot be allowed to represent to the public that the drug was manufactured according to the standard prescribed in the British Pharmacopoeia and subsequently change his stand on the commission of any offence, to claim that the drug should be judged from the standard of Indian Pharmacopoeia. I therefore, find no force in this submission made by the counsel for the Applicant.

9. So far as the last submission is concerned with respect to the quantity of sample taken for analysis, the learned Counsel pointed out that the minimum of 10 ml. should have been taken whereas in the present case only 5 ml. were taken. He has also urged that the maximum deviation and quantity prescribed in the Indian Pharmacopoeia is 10%. As I have mentioned above, it would not be the Indian Pharmacopoeia but the British Pharmacopoeia which would apply in the present case. As such I do not find any force in this submission. Moreover, the question as to the extent of evaporation, or atmospheric changes, to which the sample may be subjected, is a matter for evidence and cannot be considered at this stage. I do not wish to express any opinion thereon, as it may result in prejudice to the accused.

10. For the reasons given above, I do not find any force in this revision which is hereby dismissed. The record of the case shall be sent down to the court below atonce so that the trial may be proceeded with according to law. The interim order of stay is vacated.