JUDGMENT D. N. Jha, J. - This appeal has been directed by the State against the order passed by Sri. B. B. Khare. Temporary Civil and Sessions Judge, Hardoi acquitting Ram Bharosey accused respondent of an offence punishable under Section 18 (a) (i), (a) (ii) and (b) read with Section "27 of the Drugs and Cosmetics Act. 2. The facts giving rise to this appeal are that on May 24, 1968 the Inspector of Drugs, Lucknow Region, Lucknow visted the shop of respondent Ram Bharosey situate in Beniganj at about 1. p.m. and found that a drug named "Anandkar" (Batch No. 1204) had been stocked for sale in his shop. 3. The Inspector of Durgs Sri P. Kamal collected samples of the said drug in presence of respondent Ram Bharosey and got the same sealed on the spot and handed over one sealed sample to respondent Ram Bharosey. A duplicate copy of Form 17 on which Ram Bharosey respondent acknowledged receipt of the said sealed sample from the Inspector is Ext. ka1. Another part of the sample was sent to the Government Analyst, U. P. for test. The Government Analyst reported that the sample of the drug was not of standard quality vide Ex. ka2. A duplicate copy of this report was sent to respondent Ram Bharosey vide letter of the Drua; 3 Inspector Ex. ka3 and a subsequent reminder Ext. ka4. 4. The Drugs Inspector also sought confirmation from the genuine firm named "Anandkar Karyalaya Private Ltd,Etawah" and the Secretary of the said firm confirmed vide letter Ext. ka5, that the sample obtained from the shop of respondent Ram Bharosey did not belong to his firm. He also enclosed a genuine carton of the drug named "Anandkar" manufactured by his firm for comparison. The Drug Inspector referred the case to the Assistant Drugs Controller, U. P. vide letter dated 11th September. 1968, office copy of which is Ext. ka7, for permission to launch prosecution. The Assistant Drugs Controller directed the Inspector to prosecute Ram Bharosey for the violation of the Act. This letter dated 23rd November, 1968 is Ext. ka8. In these circumstances the present complaint was filed in the Court. 5. The respondent Ram Bharosey, in his statement, denied that no such sample as alleged was ever taken from his shop. The Assistant Drugs Controller directed the Inspector to prosecute Ram Bharosey for the violation of the Act. This letter dated 23rd November, 1968 is Ext. ka8. In these circumstances the present complaint was filed in the Court. 5. The respondent Ram Bharosey, in his statement, denied that no such sample as alleged was ever taken from his shop. He further stated that he has been falsely implicated into this case by the Drugs Inspector on account of his displeasure. 6. The learned Magistrate after scrutinizing the evidence convicted the respondent Ram Bharosey having found him guilty of an offence under Section 18 (a) (i), (a) (ii) and (b) read with Section 27 of the Act. He sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 50/. In default of payment of fine he was ordered to undergo rigorous imprisonment for a fruther period of one month. 7. Ram Bharosey respondent aggrieved by the said order filed an appeal before the learned Sessions Judge, Hardoi. A preliminary point was raised before the learned Sessions Judge that P. Kamal, Drugs Inspector's authority to take sample under Section 22 (b) of the Act had not been established. The learned Sessions Judge vide order dated 27th February, 1970 directed the learned Magistrate to recall additional evidence on the point regarding the appointment and powers of P. Kamal, Drugs Inspector. 8. The learned Magistrate, after recording the evidence sent back the record to the learned Sessions Judge who thereafter decided the appeal. 9. The learned Sessions Judge, after discussing the various provisions of the Act, was of the opinion that the provisions of Section 23 (1) of the Act were mandatory and since the provisions had not been complied by the Drugs Inspector, the report of the Government Analyst could not be treated as conclusive evidence and thus relying on the case Dharam Deo Gupta v. State (A. I. R. 1958 All.865) held respondent Ram Bharosey not guilty of any offence and acquitted him. It is in these circumstances that the present appeal has been filed by State in this court. 10. It is in these circumstances that the present appeal has been filed by State in this court. 10. We have heard the learned counsel for the State and the learned counsel for the respondent at considerable length we are of opinion that the contention of the learned counsel for the State that the learned Sessions Judge fell into error on account of misinterpretation of law and the order of acquittal is unwarranted. In order to decide the appeal before us it is necessary to go through certain provisions of the Dugs and Cosmetics Act. Section 21 of the said Act empowers the Central or the State Government to appoint such persons as it thinks fit having the prescribed qualifications to be Inspectors for such areas as may be assigned to them and it also lays down that the powers and duties of the Inspector would be such as may be prescribed. Section 22 (1) of the Act gives the details of certain powers, the Inspector is authorised to exercise. Clause (b) of this subsection lays down that the Inspector may take sample of any drug which is being manufactured, or being sold or is stocked or exhibited for sale, or is being distributed. Section 23 lays down the procedure to be followed by Inspector. This section reads as under: "23 Procedure of Inspectors:(1) Where an Inspector takes any sample of a drug (or cosmetic) under this chapter he shall tender the fair price thereof and may require a written acknowledgment therefor, (2) Where the price tendered under subsection (1) is refused or where the Inspector seizes the stock of any drug (or cosmetic) under clause (c) of Section 22, he shall tender a receipt therefor in the prescribed form. (3) Where an Inspector takes a sample of a drug (or cosmetic) for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person whom he takes it and, in the presence of such persons unless he wilfully absents himself, shall divide the sample into four potions and effectively seal and suitably mark the same and permit such person to add his own seal mark to all or any of the portions so sealed and marked: Provided that where the sample is taken from premises whereon the drug (or cosmetic) is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that where the drug (or cosmetic) is made up in containers of small volume. instead of dividing a sample as aforesaid, the Inspector may and if the drug (or cosmetic) be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four as the case may be of the said containers after suitably marrking the same and, where necessary, sealing them. (4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and shall retain the remainder and dispose of the same as follows: (i) one portion or container he shall forthwith send to the Government Analyst for test or analysis; (ii) the second he shall produce to the court before which proceedings, if any, are instituted in respect of the drug (or cosmetic) and (iii) the third where taken, he shall send to the person, if any whose name, address and other particulars have been disclosed under Section 18A. (5) Where an Inspector takes any action under clause (c) of Section 22: (a) he shall use all despatch in ascertaining whether or not the drug (or cosmetic) contravenes any of the provisions of Section 18 and if it is ascertained chat the drug (or cosmetic) does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized; (b) if he seized the stock of the drug (or cosmetic) he shall, as soon as may be, inform a Magistrate and take his orders as to the custody thereof; (c) with out prejudice to the institution of any prosecution if the alleged contravention be such that the effect may be remedied by the possessor of the drug (or cosmetic) he shall on being satisfied that the defects have been so remedied, forthwith revoke his order under the said clause. (6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of subsection. (1) of Section 22, he shall as soon as may be inform a Magistrate and take his orders as to the custody thereof". Rule 55 of the Drugs and Cosmetics Rules provides for a form of the receipt for seized drugs this rule reads as under: A receipt by an Inspector for the stock of any drug seized under clause (c) of Section 22 of the Act, shall be in Form 16" Rule 56 provides: "Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate Such purpose in writing in Form 17 to the person from whom he tak it." No other provision is relevant so far as the present case is concerned. 11. The prosecution examined two witnesses in support of its case. P.W.1 P. Kamal, Drugs Inspector, P. W. 2 Sri Radhe Krishna Pande. (Evidence Omitted). * * * * 12 We have carefully gone through the statement of the Drugs Inspector and we are not in agreement with the findings of the learned Sessions Judge that there was any violation of the mandatory provision of Section 23 of the said Act. P.W.1 P. Kamal, Drugs Inspector, P. W. 2 Sri Radhe Krishna Pande. (Evidence Omitted). * * * * 12 We have carefully gone through the statement of the Drugs Inspector and we are not in agreement with the findings of the learned Sessions Judge that there was any violation of the mandatory provision of Section 23 of the said Act. The Inspector in his statement clearly stated that on 24th May, 1968 he had inspected the shop of the respondent in his presence and had found Anandkar medicine of batch No. 1204 which was displayed for sale. He took the sample of the said medicine full compliance of the provisions of the Drugs and Cosmetics Act and thereafter Ext. 1 was duly prepared on which signatures of the respondent were duly obtained. There is nothing in the crossexamination of this witness to suggest that he did not offer price for it. Nor is there any iota of suggestion that he acted in violation of the provisions of the Act in any manner. It is not the case of the respondent that the sample was obtained in contravention of the provisions of the Act. If price had not been paid by the Drugs Inspector the respondent certainly in his statement, would have said that he was not paid any price by the Drugs Inspector. On the contrary the case of the respondent is that no sample was taken from his shop. This is obviously false and baseless in view of Ex. ka1. In the absence of any crossexamination we do not agree with the findings of the learned Sessions Judge that in absence of Form No. 16 a presumption should be drawn that the Inspector had collected the sample without tendering price for the same. In our opinion it is sufficiently established that the Drugs Inspector had obtained the sample after due compliance of provisions of the Act. 13. Rule 55 provides for the issue of a receipt by the Inspector for the stock of any drug seized under clause (c) of Section 22 of the Act. It shall be in Form 16. In our opinion it is sufficiently established that the Drugs Inspector had obtained the sample after due compliance of provisions of the Act. 13. Rule 55 provides for the issue of a receipt by the Inspector for the stock of any drug seized under clause (c) of Section 22 of the Act. It shall be in Form 16. Section 22 (1) (c) provides: "enter and search at a 11 reasonable times, with such assistants, if any, as he considers necessary, any place in which he has reason to believe that an offence under this chapter has been or is being committed and order in writing the person in possession of any drug (or cosmetic) in respect of which the offence has been or is being committed not to dispose of any stock of such drug (or cosmetic) for a specified period not exceeding twenty days or, unless the alleged offence is such that the defect may be removed by the possessor of the drug (or cosmetic), seize the stock of such drug (or cosmetic)." The Drugs Inspector did not take any proceedings as envisaged. Consequently the finding of the learned Sessions Judge that there was no compliance of the mandatory procedure prescribed in Section 23 of the Act for taking the sample is wholly erroneous. We have carefully gone through the decision referred to in Dharam Deo Gupta v. State (A. I. R. 1958 All. 865). In this case a confidential letter was sent by one Sri P. S Ramchandran to B. D. Wadhwa, Assistant Drugs Controller informing him that the sample was found defective and asked him to arrange for the inspection of the firm in order to make sure that the firm was taking proper steps to test the injections in questions, The Drugs Inspector, Lucknow, who came to the premises of the firm on March 22, 1955, took into his possession the entire stock of the ampoules that were laying there and sealed them. The necessary sanction from the District Magistrate for the action was taken. In the Confidential letter it was written to the District Magistrate that it was necessary that the entire stock of the medicine should be taken in possession because the firm was likely to remove its defects. 14. The necessary sanction from the District Magistrate for the action was taken. In the Confidential letter it was written to the District Magistrate that it was necessary that the entire stock of the medicine should be taken in possession because the firm was likely to remove its defects. 14. After making this seizure and after the report from the Director, Central Drugs Laboratory, Calcutta, a notice to the firm Dharam Deo was issued in which it was mentioned that the sample had failad to pass the two tests. 15. In reply to the aforesaid notice the firm submitted an explanation. The explanation was found unsatisfactory and a complaint against Dharam Deo Gupta was filed. The plea of Dharam Deo was that he was not the manufacturer of the injection ampoules and that be had acquired this drug under a written warranty signed by the manufacturer to the effect that the ampoules did not in any way contravene the provisions of Section 18 that the drug while in his possession remained in the same state as when he acquired it. 16. It was contended firstly that the ampoules recovered from the premises of Dharam Deo Gupta's firm were not stocked and exhibited for sale. Secondly it was contended that if presumption is to be drawn against him with respect to the ampoules stoeked and exhibited for sale merely from the fact that they were recovered from the premises of the firm, even then the prosecution had failed to establish that they were below standard quality. Thirdly it was contended that even if these ampoules were held to be of a substandard quality, he could not be convicted because he was not the manufacturer of drug. 17. It was in these circumstances that A. N. Mulla, J. as he then was, held: ''A reading of this section makes it clear that the report of the Government Analyst is to be held to be conclusive only it is not challenged according to the procedure given in the section, This by itself proves that it is not conclusive evidence in the sence that it must be accepted. It is open to an accused person to rebut the report and it is open to a Court to reject the report, if the rebutal is satisfactory. It is open to an accused person to rebut the report and it is open to a Court to reject the report, if the rebutal is satisfactory. In other words the legislature, although it has denied the right of crossexamination to an accused and has also made this report admissible in evidence without the Government Analyst deposing on oath has provided an alternative procedure by which an accused can "defend himself. The basic right of an accused to defend himself is protected and the provisions of Section 25 of the Drugs Act, therefore, are intra vires of the Constitution. But at the same time the procedure mentioned above should be strictly followed and if reliance is to be placed upon the conclusive nature of the evidence of the Government Analyst, it should be produced only in the manner mentioned in Section 25 of the Drugs Act." It would thus be clear that the facts of the instant case stand on a different footing and the aforesaid decision would not apply to the present case. The learned Sessions Judge thus committed an error in recording acquittal of the respondent in view of the facts and circumstances mentioned above. 18 We, therefore, allow the appeal filed by the State and set aside the order passed by the learned Sessions Judge, Hardoi, Ram Bharosey respondent is convicted under Section 18 (a) (i), (a) (ii) and (b) read with Section 27 of the Drugs and Cosmetics Act and is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 50/. In default of payment of fine he shall undergo rigorous imprisonment for a further period of one month. He shall surrender forthwith to serve out his sentence. The compliance of the order shall be intimated to this court by the A. D. M. (J), Hardoi within two months.