Nesargi, J.-The State has filed this appeal challenging the correctness and legality of the judgment, of acquittal, dated 28th November, 1973, passed by the Judicial Magistrate, First Class (First Court), Bangalore City, in C.C. No. 2555 of 1971, acquitting the respondents who were accused-1, accuscd-3 and accused-4 respectively in the said criminal case of the offences under section 27 (b) read with section 18 (a) (i) and section 18 (a) (vi) and section 22 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the ‘Act’). 2. The prosecution case was that P.W. 2, Venkanna Gowda Rayanna Gowda Patil, was working as Assistant Drug Controller in Bangalore and had been appointed as Inspector under section 21 of the Act. The Manoji Drug House sells drugs in its shop. Apart from the drugs displayed in the shop, it was stocking drugs in its store room. On 17th July, 1970, P.W.2 went to the premises of accused-1 and found Liquid Paraffin I.P., Batch. No.1, repacked by M/s. Rajasthan Pharmaceutical and Farmalin LP., Batch No.1 stocked and exhibited for sale. He served notice on accused-3 who was present and took samples as provided in section 23 of the Act. He, of course, gave one sample of each to accused 3. He sent samples of the drugs to the Government Analyst for testing. The Government Analyst sent a report and a copy of it was supplied to the accused. Thereafter, P.W.1 Jayaram, Drugs Inspector appointed under section 21 of the Act for the local area of Bangalore Division, took up the matter on hand. P.W.2 issued prohibitory order under section 22 (c) of the Act and P.W.1 visited the premises of Accused-1 on 9th September, 1970 and served the prohibitory order. Again on 29th September, 1970, he served another prohibitory order by which, the period was extended. Again on 19th October, 1970, he served another prohibitory order issued by P.W.2 be in force even beyond 28th October, 1970. On 28th October, 1970, he went with two witnesses to the premises of accused-1. He directed that the stocks in regard to which prohibitory orders were issued, be produced before him. The stock was produced and it was found that the stock was short by 57 bottles in regard to liquid paraffin LP. 450 ML Batch No.1. He recorded a mahazar as per Exhidit P-8 in this behalf. He directed that the stocks in regard to which prohibitory orders were issued, be produced before him. The stock was produced and it was found that the stock was short by 57 bottles in regard to liquid paraffin LP. 450 ML Batch No.1. He recorded a mahazar as per Exhidit P-8 in this behalf. It was there after that he was transferred and one Hanumantha Rao was posted as Drug Inspector to this local area. Shri Hanumantha Rao filed the complaint in this case. 3. The accused have denied having committed the offences. Written statements have been produced by the accused apart from the examination of the accused under section 342 Criminal Procedure Code (old) made by the learned Magistrate. Their say is that these samples had been taken by P.W.2 on the respective dates and that a portion of the samples had been given to them. But, they had purchased the said stock from M/s. Rajasthan Pharmaceutical, who were the repackers and they did not know whether the drugs were or were not substandard. 4. The undisputed facts in this case are that P.W.2 was the Assistant Drug Controller in Bangalore and he visited the premises of accused-1 and took samples as narrated above. The samples were sent to the Government Analyst for testing and the Government Analyst tested the same and issued reports. The reports disclosed that the drugs were substandard. P.W.2 issued prohibitory orders section 22 (c) of the Act and P.W.1 served those orders on the accused. On 28th October, 1970, P.W.1 went to the premises of accused-1 to ascertain whether the stock in regard to which prohibitory order had been issued under section 22 (c) of the Act, was or was not intact. It was found that the stock was short by 57 bottles of liquid paraffin LP. 450 ML Batch No.1. P.W.1 was transferred and Hanumantha Rao, the then Drugs Inspector for this local area, fried the complaint. 5. It was found that the stock was short by 57 bottles of liquid paraffin LP. 450 ML Batch No.1. P.W.1 was transferred and Hanumantha Rao, the then Drugs Inspector for this local area, fried the complaint. 5. The learned Magistrate has held: (i) that P.W. 2 was not a properly appointed Inspector having powers to visit premises as that of accused-1 and take samples; (ii) P.W.2 retained with himself the seal affixed to the samples and hence there remained no guarantee that the seals affixed to the samples that were sent to the Government Analyst remained intact and those samples were the very same samples that had been taken in the presence of the accused; (iii) The burden was on the Prosecution to eliminate the defence available to the accused under section 19 of the Act and the prosecution had failed to do so; (iv) In regard to paraffin I.P. 450 Batch No.1, it was tested by the Central Drugs Laboratory and that Laboratory, has, in its report, opined that it was of acceptable quality therefore, no offence could be said to have been committed in regard to that drug; and (v) There is no evidence to show that P.W.1 had searched the whole of the premises of accused-1 on 28th October, 1970 to find out the missing 57 bottles of liquid paraffin LP. 450 ML Batch No.1 and there was no evidence to show that any of the accused had sc!d away those bottles hence no offence could be said to have been made out and further on, no investigation had been made to find out as to where those missing 57 bottles were. Hence, no offence under section 22 (c) of the Act had been established. 6. The learned State Public Prosecutor argued at length as against the above mentioned conclusions arrived at by the learned Magistrate. 7. Sri R. Shankarlal, the learned Advocate appearing on behalf of the accused, contended that there was no evidence produced in this case to establish that the said stock had been kept by the accused for sale in the said premises. Hence no offence under the provisions of the Act can be said to have been made out. In view of the undisputed set of facts narrated above by us, we are clearly of opinion that this argument cannot stand. Hence no offence under the provisions of the Act can be said to have been made out. In view of the undisputed set of facts narrated above by us, we are clearly of opinion that this argument cannot stand. Moreover the circumstances surrounding this point are overwhelming and they show that accused-1 firm was vending drugs in its shop and was stocking these drugs in its store room and further that the drugs, the samples of which were taken by P.W.2, were in the premises of accused-1 firm. Naturally, it flows from these facts and circumstances that these drugs must have been kept for sale. The total quantity of these two drugs is found mentioned in the three prohibitory orders issued by P.W.2 and served on the accused by P.W.1. When the large quantity mentioned therein is, taken into consideration, there cannot be any other inference but that the accused had stacked these drugs for sale in the premises of accused-1. 8. The next argument of Shri Shankarlal was that P.W. 2 was not an Inspector under the Act and had no powers enabling him to search the premises of accused-1 and take samples. The learned Magistrate has, in regard to such an argument advanced before him, held that no Notification showing that P.W. 2 had been appointed and was vested with powers to inspect premises such as that of accused-1 and take samples, had been produced by the prosecution. The record shows that a Notification issued by the State Government in the Gazette appointing all Assistant Drug Controllers as Inspector under section 21 of the Act, had been published in April, 1966 itself. It is undisputed that P.W.2 was, at that time, an Assistant Drug Controller. It is, therefore, manifest that P.W.2 had been validly appointed as an Inspector under the Act. Section 22 of the Act lays down the powers of such Inspectors. That provision clearly shows that the Inspectors so appointed are vested with the powers of inspecting any premises wherein any drugs is being manufactured etc., and taking samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale, or is being distributed and so on. That provision clearly shows that the Inspectors so appointed are vested with the powers of inspecting any premises wherein any drugs is being manufactured etc., and taking samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale, or is being distributed and so on. We have, therefore, no hesitation in holding that P.W.2 had been appointed as an Inspector under section 21 of the Act and his jurisdiction extended throughout the State of Karnataka and he had the powers to inspect the premises like that of accused-1 and take samples. The argument on behalf of the accused, which has found favour by the learned Magistrate, is that the said Notification does not show that the Assistant Drugs Controller had been vested with the power to take samples. Section 21 (2) of the Act provides that the powers which can be exercised by an Inspector and the duties which can be performed by him or class of drugs in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed. When the Notification does not make a mention of any such thing as contained in subsection (2) of section 21, it follows that all the powers mentioned in section 22 of the Act were vested in the persons who were appointed as Inspectors by the said Notification. Hence this argument has to fail. The reasoning of the learned Magistrate that another Notification prescribing particular powers as having vested in P.W.2 ought to have been issued by the Government and produced in the case cannot stand. 9. Shri Shankarlal advanced the very argument pertaining to P.W.1 retaining the seal with himself and which argument has found favour with the Magistrate. P.W.2 has, of course, sworn that after sealing the different samples and handing over the concerned portion of samples to the accused, he retained the seal with himself. This shows that if P.W.2 was so minded, he could have at any time before sending the samples to the Government Analyst, opened the seals tampered with the samples and re-sealed the samples with the same seal. This shows that if P.W.2 was so minded, he could have at any time before sending the samples to the Government Analyst, opened the seals tampered with the samples and re-sealed the samples with the same seal. This is exactly, in view of this position, that the learned Magistrate has concluded that there was no guarantee that the samples that were sent to the Government Analyst were in the same condition as they were when they were taken in the presence of the accused. We are unable to see any force in this argument of Shri Shankarlal and the reasoning of the learned Magistrate because the provisions of the Act make it abundantly clear that sufficient safeguards have been provided by making it incumbent on the Inspectors to hand-over one portion of the samples taken to the accused then and there. The accused have every right to controvert the report of the Government Analyst and adduce evidence to show that the report is not reliable. The accused have every right to get the samples given to them by the Inspector tested and thereby show that the sample that was sent to the Government Analyst could not have been in the very condition that it was when it was taken. 10. Section 19 of the Act reads as follows: 19 (1). Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale. (2) For the purposes of section 18, a drug shall not be deemed to be misbranded or to be below standard quality only by reason of the fact that- (a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug or to conceal its inferior quality or other defects; or (aa) in the process of manufacture or preparation any one or more of the prescribed colours have been used, although such use may not be provided for in any of the pharmacopoeias referred to in clause (h) of section 3; or (b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it: provided that this clause shall not apply in relation to any sale or distribution of the drug occurring after the vendor or distributor became aware of such intermixture. (3) A person not being the manufacturer of a drug or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves -(a) that the did not know, and could not with reasonable diligence have ascertained, that the drug in any way contravened the provisions of that section, and that the drug while in hispossession remained in the same state as when he acquired it; or (b) that he acquired the drug from a person resident in India under a written warranty in the prescribed form and signed by such person that the drug does not in any way contravene the provisions of section 18, and that the drug while in his possession remained in the same state as when he acquired it: Provided that a defence under clause (b) shall be open to a person only- (i) if he has, within seven days of the service on him of the summons, sent to the Inspector a copy of the warranty with a written notice stating that he intends to rely upon it and giving the name and address of the warrantor; and (ii) if he proves that he has, within the same period, sent written notice of such intention to the said warrantor." A plain reading of this section makes it crystal clear that the reasoning of the learned Magistrate that all this defence open to the accused ought to have been eliminated by the prosecution by producing cogent evidence to that effect is not sound. Section 19 (1) of the Act makes it plain that it shall be no defence to plead mere ignorance in regard to the nature or substance or quality of the drug in respect of which the offence has been committed and so on. If any defence under the provisions of section 19 of the Act is taken by the accused, the burden is on the accused to show to the Court that the facts and circumstances in support of such a defence are available in evidence. On the other hand we find in this case that taking of samples, handing over a portion of samples to the accused, serving of necessary notices and a copy of the report of the Government Analyst on the accused, have been done. On the other hand we find in this case that taking of samples, handing over a portion of samples to the accused, serving of necessary notices and a copy of the report of the Government Analyst on the accused, have been done. All that is stated in the written statements of the accused is that the accused had got the supplies of these drugs from Rajasthan Pharmaceutical who are packers and the accused were not aware that the drugs were sub-standard. This say of the accused is hit by section 19 (1) of the Act and that cannot amount to a valid defence in view of this provision. No other circumstances showing that the accused are entitled to the remaining pleas mentioned in section 19 of the Act are found on record. Hence, we do not agree with the learned Magistrate in his reasoning on this point. 11. The reasoning in regard to formalin LP. Batch No.1, that because the Central Drugs Laboratory has issued a report showing that it was of acceptable quality and such a report becomes conclusive in view of section 25 (4) of the Act, does not appeal to us. The opinion of the Government Analyst or the Director of the Central Drugs Laboratory cannot be conclusive evidence under section 25 (4) of the Act. What become, under section 25 (3) and section 25 (4) of the Act, conclusive evidence are the observations made by them after performing the protocol of tests. The observations made by the Central Drugs Laboratory are found in the report and those observations show that the said drug does not tally with the protocol of tests mentioned in the Pharmacopoea of India. Hence, in view of the provisions of the Act, it will have to be held that the drug formalin has been established to be sub-standard. The learned Magistrate was evidently wrong in holding that the opinion expressed in the report issued by the Director of Drugs Laboratory will also be conclusive evidence under section 25 (4) of the Act. 12. Shri Shankarlal, nextly took shelter under legal arguments. He pointed out that P.W.2 has nowhere stated in his evidence that when he took samples from the accused, he tendered fair price as required by him by section 23 (1) of the Act. 12. Shri Shankarlal, nextly took shelter under legal arguments. He pointed out that P.W.2 has nowhere stated in his evidence that when he took samples from the accused, he tendered fair price as required by him by section 23 (1) of the Act. The learned State Public Prosecutor drew our attention to the evidence of P.W.2 in this behalf and showed that P.W.2 had narrated that the accused did not give him a bill and he (P.W.2) had not paid any price for the samples taken by him. He nextly drew our attention to Exhibit P-12 which is Form No.17 under the Drugs and Cosmetics Rules, 1945, (hereinafter referred to as the ‘Rules’). He pointed out that it was mentioned by P.W.2 at the top right hand corner that P.W.2 had asked for the bill and that portion of it was signed by accused-3. He, on this basis urged that it will have to be held that P.W.2 had tendered fair price and, therefore, had complied with that part of the provisions found in section 23 (1) of the Act. The contention of Shri Shankarlal is that the tendering of fair price by the Inspector is mandatory as provided in section 23 (1) of the Act and when a mandatory provision is not followed, the only inference that follows is that taking of samples was not according to section 23 of the Act and hence the report of the Government Analyst on analysing such samples cannot be regarded as the report contemplated under the provisions of the Act. When that is so, such report cannot be conclusive evidence as provided in section 25 (3) of the Act. The learned State Public Prosecutor urged that though the word ‘shall’ is found used in section 23 (1) of the Act in regard to tendering of fair price, the provision ought not to be considered as a mandatory provision but should be construed as a directory one. The learned State Public Prosecutor urged that though the word ‘shall’ is found used in section 23 (1) of the Act in regard to tendering of fair price, the provision ought not to be considered as a mandatory provision but should be construed as a directory one. He nextly urged that even if it is construed that the provision is mandatory the Court should take into consideration all the provisions contained in section 23 of the Act in order to find out whether sample or samples had been taken under the said provision and if it is found by the Court that the necessary substance of all the provisions of section 23 had been followed regard being had to the fact that tendering of fair price under section 23 (1) of the Act, would not have any bearing in regard to the admissibility of the report of the Government Analyst, the Court should have held that even in such circumstances, the report of the Government Analyst would be conclusive evidence under section 25 (3) of the Act. 13. Shri Shankarlal relied on the decision in Mary Lazrado v. Slate of Mysore1 in support of his contention. ‘The said case was under the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the ‘Food Adulteration Act’). Rules 7 and 18 of the Food Adulteration Rules were considered. This Court held that the said rules were mandatory in view of the use of the word ‘shall’ and it was incumbent on the Food Inspector to follow all the mandatory provisions and he having not followed the mandatory provisions, the report of the Public Analyst did not become conclusive evidence. Reliance was placed by this Court on the decision in Rattan ‘Anmol Singh v. Atmaram2, the ratio laid down therein being "when the Law enjoins the observation of a particular formality it cannot be disregarded and the substance of the thing must be there". Reliance was also placed by this Court on the decision of the Gujarat High Court in State of Gujarat v. Shanaben3. This decision no doubt lends considerable support to the contention of Shri Shankarlal. 14. Reliance was also placed by this Court on the decision of the Gujarat High Court in State of Gujarat v. Shanaben3. This decision no doubt lends considerable support to the contention of Shri Shankarlal. 14. But, in Mangaldas Raghavji Ruparel v. State of Maharashtra4, the Supreme Court considered the provisions of section 11 of the Food Adulteration Act and held inspite of the use of the word ‘shall’ in the said section-that notice to be issued under section 11 of the Act, has no bearing on admissibility of Public Analyst’s report in evidence. This decision was followed by this Court in Laxman Sitaram Pai v. The State of Mysore5. The very same rules 7 and 18 were under consideration. It was held that there was sufficient compliance of the provisions of the said Act. 15. In Mangaldas Raghavji Ruparel v. State of Maharashtra4, the Supreme Court has, in regard to the notice contemplated under section 11 of the Food Adulteration Act, observed as follows: "The object of this provision is clearly to apprise the person from whom the sample is taken of the intention of the Food Inspector so that he may know that he will have the right to obtain from the Food Inspector a part of the commodity taken by a way of sample by the Food Inspector. This is with a view to prevent a plea from being raised that the sample sent to the analyst was of a commodity different from the one from which the Food Inspector has taken a sample. What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate. Once the report of the Analyst is placed on record at the trial it is admissible against all the accused persons.” It is to be remembered that in the said case, notice under section 11 had not been served on the other accused. Even then the Supreme Court held that the report of the Public Analyst was admissible in evidence against such accused also. 16. Even then the Supreme Court held that the report of the Public Analyst was admissible in evidence against such accused also. 16. Section 23 (1) of the Act reads as follows: “23 (1) Where an Inspector takes any sample of a drug under this Chapter he shall tender the fair price thereof and may require a written acknowledgment therefor.” As we understand the section, the primary object of providing that the Inspector should tender the fair price when he takes any sample of a drug, is to make it appear prima facie that the said drug had not (sic) been exhibited or stocked for sale. The other object appears to be that there should not be indiscriminate taking of samples of even costly drugs by inspectors. When these objects are taken into consideration, it is clear to our mind that this provision has no bearing in regard to the admissibility of the report of the Government Analyst. Therefore, the reasoning in Mangaldas Raghavji Ruparel v. State of Maharashtra1, amply applies to this case also. Hence the contention of Shri Shankarlal has to fail. Moreover we find that the undisputed facts show that the Inspector, viz., P.W.2 had complied with all the provisions of the remaining sub-sections right from subsection (3) onwards of section 23 of the Act. He had no occasion to act according to sub-section (2) of section 23 of the Act, because, it is nobody’s case that when he tendered the fair price, they had refused to accept it. These facts convince us that the ‘substance of the thing’ had been done by P.W.2 the Inspector. That is exactly how the Supreme Court has laid down in Rattan Anmol Singh v. Atma Ram2, in regard to compliance of mandatory provisions of law pertaining to procedure. 17. Even if it is assumed for the sake of argument that section 23 (1) of the Act is mandatory and it has; to be complied with, the question that still remains is whether it can be said under the facts and circumstances that there had not been compliance of that provision. 18. In Ram Labhaya v. Delhi Municipality3, the Supreme Court has considered the provisions in section 10 (7) of the Food Adulteration Act. 18. In Ram Labhaya v. Delhi Municipality3, the Supreme Court has considered the provisions in section 10 (7) of the Food Adulteration Act. Section 10 (7) of the Food Adulteration Act reads as follows: “Where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.” Their Lordships went into the legislative history and background of this provision and concluded that it was mandatory. Their Lordships after concluding as above, observed as follows: “We are of the opinion, particularly in view of the legislative history of section 10 (7), that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which section 10 (7) casts on the Food Inspector is to ‘call’ one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses." Therefore, even if the provisions in section 23 (1) of the Act are considered to be mandatory, this reasoning will have to be applied in regard to interpretation and understanding of the provisions. Hence to contend that every word of the provisions is to be literally followed before making the samples taken remain samples under section 23 of the Act, would not be correct. P.W.2 has sworn that he did not pay any price and the accused also did not give any bill. It is undisputed that he served Exhibit P-12 which is Form No.17 on Accused-3 and Accused-3 affixed his signature in its right hand top corner. It is written therein that bill was asked by P.W.2. P.W.2 has sworn that he did not pay any price and the accused also did not give any bill. It is undisputed that he served Exhibit P-12 which is Form No.17 on Accused-3 and Accused-3 affixed his signature in its right hand top corner. It is written therein that bill was asked by P.W.2. These facts show that P.W.2 has substantially complied with the provisions of section 23 (1) of the Act, because the facts show that P.W.2 asked for the bill only with a view to pay the amount that would be mentioned by Accused-3 in the bill. 19. The reasoning of the learned Magistrate that the prosecution had not produced any evidence to show, that the Inspector had searched the whole premises for missing 57 bottles of liquid paraffin LP. 450 ML. Batch No. 1, that he tried to trace as to where those 57 bottles would be available and further that the provisions of the Act did not provide that it was incumbent on the accused to produce the stock when asked for by the Inspector, does not make sense to us. It is undisputed that prohibitory orders were served on the accused on various dates prohibiting the accused from disposing of the stocks mentioned in the prohibitory orders. It is no doubt true that the prosecution has not produced evidence to show that the accused had sold away those 57 bottles. But, the manner of disposing of the 57 bottles would not be material while considering this provision of the Act. The very fact that 57 bottles were missing, shows that the burden was on the accused to explain how they came to be missing. No attempt to discharge the burden has been made. The only argument of Shri Shankarlal is that there might have been some mistake committed while counting the number of bottles as the stock of bottles was considerable. This argument has no legs to stand in view of the acknowledgments made by the accused as seen from the concerned prohibitory orders served on him. P.W.1 has sworn that he recorded a panchanama when he found that 57 bottles were missing. This is more than sufficient to establish that 57 bottles had been disposed of by the accused in contravention of the prohibitory orders served on him. 20. P.W.1 has sworn that he recorded a panchanama when he found that 57 bottles were missing. This is more than sufficient to establish that 57 bottles had been disposed of by the accused in contravention of the prohibitory orders served on him. 20. In view of the foregoing reasons, we hold that the prosecution has satisfactorily established the charge against the accused. We, therefore, allow this appeal and set aside the judgment of acquittal dated 28th November, 1973 passed by the Judicial Magistrate, First Class (First Court), Bangalore City, in C. C. No. 2555 of 1971. We convict the accused for having committed the offence punishable under section 22 (c) of the Drugs and Cosmetics Act, 1940. We also convict the accused for having committed the offences punishable under section 27 (b) read with section 18 (a) (i) and section 18 (a) (vi) of the Drugs and Cosmetics Act, 1940, on two counts. We sentence each one of the accused to pay a fine of Rs. 1,000 (Rupees one thousand) for the offence under section 22 (c) of the Drugs and Cosmetics Act, 1940, and Respondent-2 and Respondent 3 to undergo simple imprisonment for one month in default of payment of fine. We sentence each one of the accused to pay a fine of Rs. 1,000 (Rupees one thousand) for having committed the offences punishable under section 27 (b) read with section 18 (a) (i) and section 18 (a) (iv) of the Drugs and Cosmetics Act, 1940, for each one of the two counts. Respondent-2 and Respondent-3 will, in default of payment of fine, undergo simple imprisonment for one month.