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PETITIONER: T.   A. KRISHNASWAMY

       Vs.

RESPONDENT: STATE OF MADRAS

DATE OF JUDGMENT: 10/12/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR 1022            1966 SCR  (3)  31

ACT: Indian  Drugs  Act, 1940, s. 25(3)-Analyst’s  report-Not  in prescribed form-lf admissible.

HEADNOTE: The  appellant was convicted under s. 18 (a) (ii) and s.  27 of  the Drugs Act for having manufactured and exhibited  for sale  a  drug which did not contain the ingredients  in  the proportion mentioned in the label pasted on the container of the   drug.    The  prosecution  produced  in   evidence   a certificate  given by the Government Analyst.  In appeal  to this  Court, the appellant contended that in the absence  of the protocols, the report was not in the prescribed form and hence was not admissible in evidence. HELD : Rule 46 and Form 13 contemplate analysis and test  as two different things for otherwise both words would not have been mentioned, nor the word "or" been put between them.  It is  true that the rule and form require the protocols  of  a test should be stated but they do not require any  protocols to  be stated in the report of an analysis.  In the  present case the report only gave the result of the analysis; it did not  give  the result of any test; nor did it say  that  any test had been carried out.  Indeed, no dispute existed as to the components constituting the drug, the only dispute being as to the quantities in which they were so contained.   That being  so,  the report was in the prescribed  form  and  was fully admissible in evidence. [33 C-E] It  was  irrelevant to consider whether the  Analyst  should also  have carried out a. test.  Even if he should have  and did not, that would not prevent the report of the result  of the analysis from being admitted in evidence. [33 E-F] Raj  Kishan v. State of U.P. A.I.R. 1960 All  460,  referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 40 of 1964. Appeal  by special leave from the judgment and  order  dated April 24, 1963, of the Madras High Court in Criminal  Appeal

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No. 22 of 1961. R.   Thiagarajan, for the appellant. A.   Ranganadham   Chetty   and  A.  V.  Rangam,   for   the respondent. The Judgment of the Court was delivered by Sarkar,  J.  The  appellant  was  convicted  by  a   learned magistrate under s. 18 (a) (ii) read with s. 27 of the Drugs Act,  1940  for  having  manufactured  for  sale  and   also exhibited  for  sale  a drug known as OKSAL  which  did  not contain  the ingredients in the proportion mentioned in  the label pasted on the container of 32 the drug.  The magistrate sentenced him to pay a fine of Rs. 125  and  in  default of payment of the  fine,  to  rigorous imprisonment  for one month.  On appeal by the appellant  to the  Sessions Judge, that conviction was set aside  and  the appellant was acquitted.  On appeal by the State to the High Court of Madras, the judgment of the learned Sessions  Judge was set aside and the conviction and sentence passed by  the learned magistrate were restored.  Hence the present  appeal by special leave. The prosecution produced in evidence of the charge that  the drug  was misbranded within the meaning of s. 18  (a)  (ii), that is, its label bore a statement which was false as being at  variance with the components of the drug, a  certificate to  that effect given by the Government Analyst.  The  label stated that the drug contained Benzoic acid, Salicylic acid, Zinc Oxide and Boric acid in the proportions specified.  The report  of the Analyst showed that the drug did not  contain these  substances  in  the  proportion  indicated  but  were deficient  as  follows  : Benzoic Acid  by  15.5  per  cent, Salicylic acid by 25 per cent, Zinc Oxide by 25 per cent and Boric acid by 46.3 per cent. The  only question is whether this report was admissible  in evidence  to prove that the contends of the drug were so  at variance  with the statement on the label and therefore  the drug  had been misbranded.  Sub-section (3) of s. 25 of  the Act  states that the report of the public Analyst  shall  be evidence of the facts stated therein and such evidence shall be conclusive unless the accused person adduced evidence  to the  contrary in the manner laid down in it.  The  appellant produced no such evidence.  The report has however to be  in the form prescribed before it can be admissible in evidence. The  contention of the appellant is that the report was  not in such form and hence was not admissible in evidence.  This contention  was accepted by the Sessions Judge but  rejected by the other two courts below. Rule  46 of the rules made under the Act provides  that  the Government  Analyst  shall "after the test or  analysis  has been  completed forth with supply to the Inspector a  report in  triplicate  in  Form 13 of the result  of  the  test  or analysis together with full protocols of the tests applied". This  is the prescribed form of the report.  Head 7 of  Form 13  is  in these words : "Results of test or  analysis  with protocols  of  tests applied".  It appears  that  the  Drugs Inspector who obtained the samples from the appellant’s shop duly  forwarded  a part of these to the  Government  Analyst with  a  letter  stating that they were sent  for  "test  or analysis". 3 3 Now,  the report of the Analyst did not state the  protocols of  any test.  It is said that r. 46 and Form  13  indicated that the protocols of the tests applied had to be stated  in the  report.  The contention is that in the absence  of  the protocols the report was not in the prescribed form and  was

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hence not admissible in evidence.  It appears that protocols of test means the details of the process of test. The  question then is, do r. 46 and Form 13 require that  in the  present case the protocols of tests had to be stated  ? We  do not think they do.  Obviously, the rule and the  form contemplate  analysis and test as two different things,  for otherwise both words would not have been mentioned, nor  the word  ’or’ been put between them.  It is true that the  rule and the form require that the protocols of a test should  be stated.   They do not require any protocols to be stated  in the  report  of an analysis.  Now in the present  case  what the, report did was only to give the result of the analysis. It  did  not give the result of any test.  Nor does  it  say that  any  test  had been carried out.   Indeed  no  dispute exists as to the components constituting the drug, the  only dispute  being  as to the quantities in which they  were  so contained.   The report only stated the quantities  of  them found  on analysis.  That being so, in our view, the  report is  in  the  prescribed  form and  is  fully  admissible  in evidence. The  Inspector in his letter to the Analyst no doubt  stated that the sample was sent to him for "test or analysis".  But what  the Analyst did was only to make an analysis.   It  is irrelevant  to consider whether he should also have  carried out a test.  Even if he should have and did not, that  would not  prevent the report of the result of the  analysis  from being  admitted in evidence.  That report would  nonetheless be conclusive evidence under s. 25 (3) of the Act. Our  attention  was drawn to the case of Rai Kishan  v.  The State of Uttar Pradesh. (1) There it was observed that  when a report did not state the protocols of the test applied, it could not be said to be a report in the prescribed form.  It is  not clear from the judgment whether the report  in  that case purported to be the report of a test or of an analysis. If that case intended to hold that no report of an  analysis is  in  the  prescribed form where  the  protocols  are  not stated, we are unable to agree with it. The result is that this appeal fails and it is dismissed. Appeal dismissed. (1)  A.I.R 1960 All. 460. 34