NESARGI J. ( 1 ) IN this appeal by the State, the judgment of acquittal passed by the judicial Magistrate, I Class (IV Court), Bangalore, acquitting the three respondents, who were, accused 1, 3 and 4, in CC. 2287 of 1971 before the magistrate of the offences under S. 18 ( (c) punishable, under S. 27 (a,) (ii), under S. 18 (a) (i) punishable under S. 27 (b) and under S. 18a punishable under S. 28 of the Drugs and Cosmetics Act 1940 (hereinafter referred to as the 'act'), has baen challenged. ( 2 ) RESPONDENT 1 is a firm of which respondent 2 is a partner and respondent 3 is the manager. One more partner of the firm had also been arrayed as accused 2, but the trial did not proceed against him as he was absconding. ( 3 ) RESPONDENT 1 Admittedly holds a licence in the requisite form for re-packing of drugs. It has its premises as described in the cause title;. PW. 1 H. Jayaram, Drugs Inspector, visited the premises of respondent 1 with panchas including PW. 3 Srinivas and PW. 4 K. S. Anantha Rao on 27-2-1970 and inspected the premises. Respondent 3 was present in the premises. The premises were searched by PW. 1 in the presence of the panchas. They found, in an upstairs room, various packets of drugs manufactured by different manufacturers. PW. 1 asked respondent 3 to disclose the source of acquisition of these drugs. Respondent 3 could not produce any material disclosing the source of acquisition of these drugs. Those drugs were sorted out and a list was prepared. It was found that the the drugs consisted of 42 items and many of those items were not in the approved list appended to the licence issued to respondent 1. That disclosed to PW. 1 that respondent 1 had in his possession in his premises drugs in regard to which he had no licence to deal with. All these drugs had bean kept by him for distribution or purpose of sale. The panchanama ex. P3 with the list of the drugs was prepared and a receipt Ex. P4 issued. Respondent 3 signed on the panchanama and the list of the drugs and a copy of the list was furnished to respondent 3. All these drugs had bean kept by him for distribution or purpose of sale. The panchanama ex. P3 with the list of the drugs was prepared and a receipt Ex. P4 issued. Respondent 3 signed on the panchanama and the list of the drugs and a copy of the list was furnished to respondent 3. It is the prosecution case that out of these 42 items listed and seized, 33 items are not in the approved list appended to the licence issued to respondent 1. Respondent 3 could not disclose tha source of acquisition in regard to any of the items of the drugs seized. PW. 1 reported the seizure and obtained permission from the Magistrate to retain these seized 42 items of drugs with himself. Later, PW 1 issued a notice under S. 18a of the Act to respondent 1 as per the original of Ex. P5, calling upon it to disclose the source of acquisition of all the 42 items of drugs. No reply was received by PW. 1. Again oh 23-3-1970 PW. 1 sent a reminder as per the original of Ex. P6 calling upon respondent to disclose the source of acquisition of the drugs seized. On 16-4-1970 a reply as per Ex. P7 sent by respondent 3 was received by PW. 1; by Ex. P7, signed by respondent 3, respondent 1 denied the seizure and alleged that the drugs referred to in Ex. PS were not at all in his possession and hence the question of disclosing the source of acquisition of those items did not arise. Then on 25-9-1970 as per Ex P8 PW. 1 made an application to the Court for permission to take samples from the seized drugs in order to get the samples analysed by the Govt Analyst to find out whether they were of the standard prescribed by the Pharmacopeia of India. Permission was granted by the Court. On 8-10-1970 he secured the very same panchas and in their presence and in the presence of respondent 3, opened the seals on the boxes of drugs and took samples in 4 items of the seized drugs. A mahazar Ex. P9 was prepared and it was signed by respondent 3 as per Ex. P9 (a ). Form 17 was issued to respondent 3 as per copies Exs. PIO and P11. Respondent endorsed on Exs. P10 and P11 for having received copies. A mahazar Ex. P9 was prepared and it was signed by respondent 3 as per Ex. P9 (a ). Form 17 was issued to respondent 3 as per copies Exs. PIO and P11. Respondent endorsed on Exs. P10 and P11 for having received copies. Samples taken were also given to respondent 3 at that time. The samples were sent to Govt Analyst for analysis and report. The Govt Analyst sent his reports which reached the, office of pw. 1 on 31-10-1970. As per these reports it was found that sodium bromide ip. Batch 1 was of sub-standard. That disclosed that an offence under s. 18 (a) (i) punishable under S. 27 (b) of the Act had been committed by the respondents. PW. 1 was transferred from Bangalore and! D. Hanumantha rao PW. 2 was transferred to Bangalore and posted as Drugs inspector. He ultimately filed a complaint before the Court alleging that the respondents had committed the above narrated offences. ( 4 ) RESPONDENTS 1 and 2 have simply denied the prosecution case. Respondent 3 has in his statement recorded under S. 342 Crpc (old) has contended that PWs. 1, 3 and 4 had visited the premises as narrated by them on 27-2-1970 and went to the upstairs room. He was sent for and he also went there. Some dealwood boxes had appeared there and they were taken away. Later on he was asked to affix his signatures on some prepared documents and he affixed his signatures. Further on he has contended that after some days, he was again sent for and asked to furnish his signatures on prepared documents and he obliged PW. 1 by affixing his signatures. In short, his defence is that the 42 items of drugs seized from the premises were not at all in the premises but had been some how planted without his knowledge and that the seizure was not effected in his presence but he was simply made to affix his signatures on certain documents which had been kept prepared and this process was adopted by pw. 1 on two occasions. In regard to the allegations made about the licence having been issued to respondent 1 and the approved list appended thereto and respondent 2 being a partner of respondent 1 and the other absconding accused also being a partner and respondent 3 being the Manager of respondent 1, there is no dispute. 1 on two occasions. In regard to the allegations made about the licence having been issued to respondent 1 and the approved list appended thereto and respondent 2 being a partner of respondent 1 and the other absconding accused also being a partner and respondent 3 being the Manager of respondent 1, there is no dispute. ( 5 ) THE learned Magistrate acquitted the respondents on considering the legal aspects as well as the aspect in regard to the seizure of the drugs. He has held that the prosecution had failed to establish that PW. 1 and pw. 2 were appointed as Drugs Inspectors in Bangalore and that PW. 1 had the necessary power to effect seizure of the drugs from the premises of respondent 1. He has also held that the evidence of PWs. 3 and 4, the two panchas, varied in material particulars in regard to their presence at one and the same time in the premises and the drugs having been seized in their presence and therefore the prosecution had failed to establish satisfactorily that the said drugs had been seized from the premises of respondent 1. It is on the bans of these conclusions that he has acquitted the respondents. ( 6 ) FW. 1 H. Jayaram has sworn that he was appointed as Drugs inspector and his area of operation was Bangalore division. He was later transferred to Gulbarga, whereupon PW. 2 D. Hanumantha Rao was posted as Drugs Inspector in his place. PW. 2 has sworn that he was working as drugs Inspector in Bangalore Division from 2-11-1970 and he, in that capacity, filed the complaint before the Court. The learned Magistrate has, in this behalf, concluded that the prosecution has not produced the orders of appointment and the necessary notification issued by the Govt in regard to the empowerment of these two officers with powers of Drugs Inspectors, therefore the prosecution has not proved that PW. 1 was the Drugs Inspector and he had necessary powers to seize the drugs from ther premises and pw. 2 had the necessary power to file the complaint. He has also observed in this connection that when PW. 1 had seized the drugs it was PW. 1 alone who ought to have filed the complaint and not PW. 2 therefore the complaint itself is incompetent. 2 had the necessary power to file the complaint. He has also observed in this connection that when PW. 1 had seized the drugs it was PW. 1 alone who ought to have filed the complaint and not PW. 2 therefore the complaint itself is incompetent. These aspects have been already considered by this Court in Crl App 168/74, disposed of on 13-9-1974 (1975) 2 Kar. L. J. 17. . That case arose out of a judgment passed by the Judicial Magistrate, I Class (I Court), bangalore City acquitting the accused therein of the offences under Ss. 18, (a) (i) and 18 (a) (vi) read with S. 27 (b) of the Act. It is hence clear that the legal aspects involved in the case on hand have been dealt with and the said decision rendered by this very Bench covers these aspects. It has been held that in view of the notification being available in the Govt Gazette, the very same Drugs Inspectors have been appointed as Drugs Inspectors and they had the necessary powers. The question whether PW 2 who had succeeded PW. 1 was competent or not to file the complaint in regard to the offences unearthed by PW. 1, was also considered and it has been held that he had such a power and the complaint filed by him is competent in law. We, therefore, do not consider it necessary once again to go into those legal aspects in detail. The decision in Crl App 168 of 1974 (1) acts as a precedent. ( 7 ) THE main question that remains for consideration is whether the prosecution has satisfactorily proved that PW. 1 had in fact seized these 42 items of drugs from the premises of respondent 1 on 27-2-1970. * * * * * * therefore, the conclusions of the learned Magistrate cannot be sustained on the facts and circumstances obtaining. ( 8 ) IT is hence clear that the prosecution has satisfactorily established that PW. 1 seized these 42 items of drugs from the upstairs room of the premises of respondent 1 in the presence of respondent 3 on 27-2-1970, after observing the procedure prescribed under the provisions of the Act. ( 9 ) SRI A. K. Lakshmeswar argued that the cross-examination of pws. 1 seized these 42 items of drugs from the upstairs room of the premises of respondent 1 in the presence of respondent 3 on 27-2-1970, after observing the procedure prescribed under the provisions of the Act. ( 9 ) SRI A. K. Lakshmeswar argued that the cross-examination of pws. 1, 3 and 4 discloses that the boxes containing the seized drugs, which had been allegedly sealed and over which labels bearing the signatures of the panchas had been pasted, could be opened without disturbing the? labels and tampered with. A reading of the evidence of three witnesses shows that a suggestion has been made to this effect and PW. 1 has answered that suggestion by saying that the boxes could have, been opened only at the, cost of the) seals. Sri Lakshmeswar replied that PW. 1 had admitted that he had retained the seal with himself and that showed that even it 1, the seals had been disturbed, he could have repealed the boxes without disturbing the labels and moreover PWs. 3 and 4 were always amenable to him. We are not impressed by this reasoning advarced by Sri Lakshmeswar. We find from Form 17, which bears the signature of respondent 3 that the, boxes were opened in the presence of respondent 3 and samples were taken in his presence and a set cf samples were also furnished along with Form 17 to respondent 3 on 8-10-1970. When that is so, it is difficult to accept this contention because if the, labels had been disturbed, respondent 3 would have immediately protested and filed necessary application before the concerned Magistrate. He would havo also as a fact included such an averment in his statement recorded under S. 342 Crlpc (old ). It is, therefore, clear that it is only an aftqr-thought on the part of tha defence. ( 10 ) SRI A. K. Lakshmeswar argued that according to, S. 23 (1) of the act, the price of ther drugs had to, be paid whenever samples were taken for analysis and it is not the case of the prosecution that PW. 1 at any time paid the price cither on 27-2-1970 or on 8-10-1970 and hence the report of the Govt Analyst is inadmissible in evidence. 1 at any time paid the price cither on 27-2-1970 or on 8-10-1970 and hence the report of the Govt Analyst is inadmissible in evidence. The object underlying s. 23 (1) of the Act has been gone into in detail by this Court in the above cited decision in Crl App 168 of 1974 (1 ). It has been held therein that nonpayment of price by itself does not make the report of the Govt Analyst inadmissible in evidence. Hence this contention has to fail. ( 11 ) THE list attached to Ex. P3 in regard to the 42 items of drugs seized on 27-2-1970 from the premises of respondent 1 in the presence of respondent 3 when compared with the approved list which forms part of the licence issued to respondent 1 shows that 33 items out of the 42 items seized do not find a place in the approved list. Therefore, it will have to be held in regard to these 33 items that respondent 1 had kept these 33 items of drugs in his premises for distribution or sale without having a valid licence,. It is no doubt, respondent 1 is only a re-packer and holds a licence for that purpose. S. 3 (f) of the Act lays down that :" (f) manufacture in relation to any drug or cosmetic includes any process or part of a process for making, altering, omamenting, finish ing, packing, labelling,. . . . . . . . . . "a plain reading of this section makes it crystal clear that a re-packer is also a manufacturer. Re-packing is also manufacturing for the purpose of the Act. Hence the offence; under S. 18 (c) punishable, under S. 27 (a) (ii) of the Act is complete. The respondents are therefore liable to be punished for the same. ( 12 ) OUT of the samples sent to the, Govt Analyst for analysis and report, one sample pertaining to sodium bromide IP. Batch 1 appears at item 13 in the list found attached to the P3, the panchanama for the seizure of the 42 items of drugs seized on 27-2-1970. The charge against the respondents in regard to one of the drugs being of sub-standard, pertains only to this item 13 namely Sodium Bromode, IP. Batch 1. The relevant report of the Govt Analyst is at Ex. P16. The charge against the respondents in regard to one of the drugs being of sub-standard, pertains only to this item 13 namely Sodium Bromode, IP. Batch 1. The relevant report of the Govt Analyst is at Ex. P16. It discloses that the protacals of the test was as prescribed by Pharmacopeia of India page 669, 1966 Edn He has opined that the loss of drying found was at 11. 63% w/w, while the pharmacopeia of India prescribed that it should not be, more than 5% w w. In view of this finding he concluded that the said sample did not conform to IP. standard with respect to loss in drying This report conclusively establishes that this item was of sub-standard. Hence it will have to be held that the prosecution has satisfactorily established an offence under s. 18 (a) (i) punishable under S. 27 (b) of the Act against the respondents and the respondents are, liable to be punished for the same. ( 13 ) PW. 1 has sworn that on 27-2-1970 itself he called upon respondent 3 to disclose the source of acquisition of the seized items of drugs and respondent 3 failed to disclose the source of acquisition and further he was unable to produce any invoices or bills to show that he had acquired the said items from such and such manufacturers of drugs. Ex. P7 which is admittedly the reply sant by respondent 1 and signed by respondent 3 to the reminder issued by PW. 1, shows - that the contention of the respondents was that they were not liable to disclose ther source of acquisition of those items on the ground that they were not at all seized from their possession. It is absolutely clear that the respondents have failed to disclose the source of acquisition of these drugs, namely the 42 items seized. Ss. 18a and s. 24 of the Act read as follows :" 18a: Disclosure of the name of the manufacturer:-Every person, not being the manufacturer of a drug or cosmetic or his agent tor the distribution thereof, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic. 18a and s. 24 of the Act read as follows :" 18a: Disclosure of the name of the manufacturer:-Every person, not being the manufacturer of a drug or cosmetic or his agent tor the distribution thereof, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic. "s. 24: Persons bound to disclose place where drugs or cosmetics are manufactured or kept.-Every person for the time being in charge of any premises whereon any drug or cosmetic is being manufactured or is kept for sale or distribution shall, on being required by an Inspector so to do, be legally bound to disclose to the Inspector the place where the drug or cosmetic is being manufacured or is kept, as the case may be. S. 18a deals with disclosing of source of acquisition of drugs by a person not being the manufacturer of a drug or cosmetic, if required by the Inspector of Drugs. In regard to the 33 items which are proved to be not in the approved list, respondent 1 cannot be the manufacturer within the definition of the term as found in the Act because he had no licence to re-pack these items of drugs. That means that the offence contemplated by S. 18a punishable under S 28 of the Act has been satisfactorily established against the respondents. In regard to the remaining items namely 9 in number, respondent 1 is a manufacturer because the said items are found in the approved list, which is a part of the licence issued to respondent 1, for re-packing and hence S. 24 of the Act applies and therefore it will have to be held that he has committed the very same offence under the Act. Both these counts of offences are punishable under S. 28 of the Act. The respondents are liable to be convicted and punished for the same. Both these counts of offences are punishable under S. 28 of the Act. The respondents are liable to be convicted and punished for the same. ( 14 ) THE offence contemplated in S. 18 (c) of the Act is punishable under S. 27 (a) (ii) of the Act which reads as follows : s. 27: Pcnality for manufacture, sale etc of drugs in contravention of this chapter.-Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes- (a) any drug- (i) * * * (ii) without a valid licence as required under Cl (c) of S. 18 shall be punishable with imprisonment for a term which shall not be leas than one year but which may extend to ten years and shall also be liable to fine. Provided that the Court may, for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. A reading of this provision makes it manifest that a sentence of imprisonment as well as fine is mandatory. If the Court feels that there are any special reasons to impose a lesser sentence, it must record such special reasons in writing. Sri A. K. Lakshmeswar argued that the sentence of imprisonment, though made mandatory by a statute, cannot be imposed on a company or a partnership firm and therefore by virtue of S. 34 (1) of the Act no sentence of imprisonment can be imposed on any of the respondents for having committed those offences. He relied on the decision in State of Maharashtra v. Joseph Anthony Pereira 73 Bom. L. B. 613. . Cls. (1) and (2) of S. 34 of the Act have been considered in the said decision. It is held therein that a sentence of imprisonment cannot be imposed on a company or a firm and therefore inspite of the provisions of Section 27 of the Act, it would not be legal to impose a sentence of imprisonment on a company. (1) and (2) of S. 34 of the Act have been considered in the said decision. It is held therein that a sentence of imprisonment cannot be imposed on a company or a firm and therefore inspite of the provisions of Section 27 of the Act, it would not be legal to impose a sentence of imprisonment on a company. It is also held therein that whenever any person is convicted by virtue of Section 34 (1) of the act for such an offence committed by the company, only a sentence of fine can be imposed on him as S. 34 (1) contemplates and lays down that such a parson can be convicted accordingly, meaning thereby, according to the punishment imposed on the company itself. In Anath Bandhu samanta v. Corpn of Calcutta ILR. (1954) 1 Cal. 403. it is laid down that where the, only punishment is imprisonment the limited company cannot be proceeded against, though under the Indian Penal Code, definition of the, ward 'person' includes any company or association or body of persons, whether incorporated or not. In this view of the 'position in law, it is to be held that sentence of imprisonment, though made mandatory under S. 27 (a) of the act, cannot be imposed, on respondent 1. Sec. 34 (1) of the Act reads as follows :" S. 34 (1): Where an offence under this Act has been committed by a company every person who at the time the offence; was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed withqut his knowledge or that he exercised all due diligence to prevent the commission of such offence. "it is undisputed that respondent 3 is the Manager of respondent 1 and respondent 2 is the partner of respondent 1. It is proved that respondent 3. was actively managing the affairs of respondent 1 and was found in the premises of respondent 1 when PWs. "it is undisputed that respondent 3 is the Manager of respondent 1 and respondent 2 is the partner of respondent 1. It is proved that respondent 3. was actively managing the affairs of respondent 1 and was found in the premises of respondent 1 when PWs. 1, 3 and 4 visited the premises and seized the drugs in question on 27-2-1970, and he received the copies of all documents, namely panchanama, list of drugs seized, Form 16, Form 17 and also the samples, as required by the Rules. In view of the fact that respondent 3 is admittedly ther manager of the company it follows that respondent 2. is responsible for the conduct of the company and respondent 3 was in charge of the business of the company. Neither respondent 2 nor respondent 3 has taken up the plea available to them as laid down in the proviso to S. 34 (1) of the Act. Therefore, by virtue of S. 34 (1) of the, Act, it will have to be held that both respondents 2 and 3 are, deemed to be guilty of these offences commited by respondent 1 and are liable to be punished accordingly. ( 15 ) SEC. 34 (2) of the Act reads as follows :" 34 (2) : Notwithstanding anything contained in sub-sec (1) where an offence under this Act has been committed by a company and it is proved that the oftence has been committed with the consent or connivance Off, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be, guilty of that oftence and shall be liable to be proceeded against and punished accordingly. "a plain readnig of this section which commences with a non-obslante clause makes it abundantly clear that if the prosecution establishes satisfactorily that he offences committed by the company had been committed with the consent or connivance of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The words shall also be deemed to be guilty' provide a particular stress. The words shall also be deemed to be guilty' provide a particular stress. These words, when read with non-obstante clause at the commencement of the provision, leave no doubt in our mind that irrespective of such director, manager, secretary or other officer of the company being found guilty of ther offence committed by the company by virtue of S. 34 (1) of the Act, they shall also be deemed to be guilty by virtue of S. 34 (2) of the Act. The only interpretation possible is that if it so happens that if the very person who is be deemed to be guilty of the offence; committed by the company, by virtue) of S. 34 (1) of the Act, is also found to have consented or connived in the commission of the offence, he becomes guilty of the offences as if he also, had himself committed the oftence independently of the company. It, therefore, follows that he will have to ba punished tor the offence so deemed to have been committed by him, because of the fiction in law introduced by this provision. ( 16 ) IT has been satisfactorily established by the evidence of PWs. 1, 3 and 4 and the stand taken by respondent 3 that respondent 3 was the manager of respondent 1, he was conducting the business of respondent 1 and he was present when 42 items of drugs were seized, he received copies of the panchanama and the list, he endorsed on the relevant documents and he received Form 17 and the samples from PW. 1. He is the sole manager, managing the affairs of respondent 1. He has replied to the notice issued by PW. 1 calling upon respondent 1 to disclose the source of acquisition of the item of drugs seized. All this material proves that respondent 3 has either consented or connived in the commission of these offences by the company. Hence S. 34 (2) of the Act applies to respondent 3. In this view of the matter, respondent 3 has to be convicted and punished for having committed the offences himself by virtue of 9. 34 (2) of the Act. ( 17 ) FOR the foregoing reasons, we are of opinion that the conclusions of the learned Magistrate cannot be sustained. In this view of the matter, respondent 3 has to be convicted and punished for having committed the offences himself by virtue of 9. 34 (2) of the Act. ( 17 ) FOR the foregoing reasons, we are of opinion that the conclusions of the learned Magistrate cannot be sustained. We allow this appeal and set aside the judgment of acquittal passed by the Judicial Magistrate, i Class, (IV) Court in CC. 2287/71. We convict the respondents for having committed offices under Ss. 18 (c), 18 (a) (i) and 18a, punishable, under ss. 27 (a) (ii), 27 (b) and 28 of the Act. We sentence them to pay a fine of rs. 2000 each, on each cne of the counts. In default of payment of fine, respondents 2 and 3 will undergo simple imprisonment for 3 months for each non-payment of fine. We further convict respondent 3 by virtue of S. 34 (2) of the Act for having committed the above narrated three counts of offences. We sentence him to undergo simple imprisonment for 3 months on each count and to pay a, fine off Rs. 500 on each count and in default, of payment of fine, to undergo simple imprisonment for one month for each non payment of fine. We direct that the subtantive sentences passed on respondent 3 are to run concurrently. --- *** --- .