JUDGMENT Onkar Singh, J. - This is an appeal by the State from an appellate order dated 25-5-72 passed by Civil and Sessions. Judge, Sitapur, acquitting the respondent Sarkar Bahadur Jaiswal of the offences under section 18/27 of Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act). The respondent was prosecuted before Sub-Divisional Magistrate Sitapur for the above offences. The learned Magistrate found that the offences have been established and convicted and sentenced the respondent to one year's R. I. and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo R. I for six months. The respondent went in appeal and the learned Civil and Sessions Judge allowed the appeal and reversed the order of conviction and sentence passed by the learned Magistrate and acquitted the respondent. 2. The facts giving rise to this appeal are as follows. On 12-9-1966 P. W. 1 Sri K. S. Selot, Inspector of Drugs, Lucknow, inspected the premises of M/s. Gupta Brothers & Co. at Sitapur. This firm deals in drugs under a licence. The respondent who is a salesman of the firm was present at the shop. Sri K. S. Selot Inspector of Drugs collected a sample of the drug Choloramphenical Capsules U.S.P., Batch No. 50, manufactured by M/s. Acichem Laboratories Bombay-60 under the provision of Section 23 of the Act. This sample was divided into four parts and one part was given to the respondent. One portion was sent to the Govt. Analyst for analysis. The sample was reported to be misbranded, adulterated and not of standard quality. In fact no Choloramphenical was found in the capsules. On receipt of the test report the Inspector of Drugs Sri K.S. Selot wrote a letter Ext. Ka-5 dated 27-4-1967 to the respondent informing him that the sample of drug which was collected from him on 12-9-1966 has been declared to be not of standard quality by the Central Drug Laboratory Calcutta and the sample was misbranded and adulterated contravening Section 18 read with Section 27 of the Act. The respondent was required to show cause and ex plain within 28 days from the date of the receipt of the letter as to why legal action as provided under the law should not be taken against him. A true copy of the test report of the above drug was also enclosed along with the letter. The respondent was required to show cause and ex plain within 28 days from the date of the receipt of the letter as to why legal action as provided under the law should not be taken against him. A true copy of the test report of the above drug was also enclosed along with the letter. Ext. Ka-6 is the reply of the respondent to the effect that the aforesaid sample was purchased in sealed packages from M/s. Bharat Medicinhouse, 27 Aminabad Park Lucknow under their Invoice No. 3065 dated 10-9-1966. An attested copy of the said invoice was also attached along with the letter. Ex. Ka-6 A is the attested true copy of the invoice on the record. After the receipt of this reply Sri K. S. Selot, Inspector of Drugs, Lucknow, wrote a letter Ext. Ka-7 dated 13-10-67 to M/s. Bharat Medicinhouse intimating them that a sample of Choloramphenical Capsules was drawn from M/s. Gupta Brothers & Company, Greek Ganj, Sitapur, on 12-9-66 and sent for analysis. The sample was declared to be misbrand-ed, adulterated and not of standard quality, It further mentioned that a show cause notice was issued to M/s. Gupta Brothers & Company, Greek Ganj, Sitapur, for stocking for sale and selling misbranded drugs. M/s. Gupta Brothers & Co. have informed in turn that they had purchased those capsules from M/s. Bharat Medicinhouse vide your invoice No. U.P. 3065 dated 10-9-1966. Bharat Medicinhouse acknowledged the letter by means of Ext. Ka-8 dated 3-11-67 and intimated to the Inspector of Drugs, Lucknow, that the samples taken by him on 12-9-1966 from M/s. Gupta Brothers & Company, Sitapur, were not theirs as they had sent the documents to the party for delivery under registered cover vide postal receipt No. 0430 dated 12-9-66 and it was not possible that the consignment could be delivered without the document of the same date. It was further mentioned that Choloramphenical Capsules which were supplied by them was brand of Medichem Laboratories, Bombay with batch No. 48. After the receipt of this reply a complaint was filed before the learned Magistrate which resulted in the conviction of the respondent. On appeal, however, the learned Civil & Sessions Judge Sitapur set aside the conviction and sentence of the respondent and acquitted him. 3. In the trial court the defence of the respondent was based upon Section 19(3) of the Act. On appeal, however, the learned Civil & Sessions Judge Sitapur set aside the conviction and sentence of the respondent and acquitted him. 3. In the trial court the defence of the respondent was based upon Section 19(3) of the Act. His defence was that he acquired the durg or cosmetic from a duly licensed manufacturer, distributor or dealer thereof and that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it. 4. We have heard the learned Govt. Advocate and the learned counsel for the respondent and we are of opinion that for the reasons hereinafter given this appeal should be allowed. 5. The main question which requires to be considered in this case is whether the respondent has substantiated his defence that he had purchased the drug Choloramphenical Capsules U. S. B. Batch No. 50 manufactured by M/s. Acichem Laboratories, Bombay 60 from Bharat Medicinhouse, 27 Aminabad Park, Lucknow. The defence of the respondent was that he had purchased the sealed packages of Choloramphenical Capsules from M/s. Bharat Medicinhouse, 27 Aminabad Park, Lucknow under their Invoice No. 3065 dated 10-9-1966. An attested true copy of the said invoice has been filed by the respondent which is Ext. Ka-6. A of Ext. Ka-6 would show that 5 X 100 Capsules Choloramphenical of No. 48 X h 1970 was supplied by Medicinhouse, 27 Aminabad Park Lucknow, to M/s. Gupta Brothers Company Sitapur. It is clear from this invoice that the Batch No. of the drug Choloramphenical Capsules supplied by Bharat Medicinhouse was 48. The letter Ext. Ka-8 of Bharat Medicinhouse further shows that Choloramphenical Capsules which were supplied by it was brand of Medicinhouse Laboratories and not from M/s. Acichem Laboratories Bombay-60. It is, therefore, clear that the defence of the respondent that he had purchased the drug Chloloramphenical Capsules, of which sample was taken by the Inspector of Drugs, from Bharat Medicinhouse is not correct. In this connection we may also examine the oral evidence led by the parties in this case. It is, therefore, clear that the defence of the respondent that he had purchased the drug Chloloramphenical Capsules, of which sample was taken by the Inspector of Drugs, from Bharat Medicinhouse is not correct. In this connection we may also examine the oral evidence led by the parties in this case. P.W. 1 Sri K.S. Selot, Inspector of Drugs, has stated that he took sample of the drug Choloramphenical Capsules U.S.P. Batch No. 50 manufactured by M/s. Acichem Laboratories Bombay-60 from an open jar P.W. 3 Sri G.C. Rastogi who is the proprietor of Bharat Medicinhouse Lucknow stated that he had supplied Choloramphenical Capsules Batch No. 48 manufactured by M/s. Medichem Laboratories Bombay to M/s. Gupta Brothers & Co. Sitapur. He categorically denied to have supplied Choloamphenical Capsules Batch No. 50 manufactured by M/s. Acichem Laboratories Bombay-60. The statements of P.W. 1 and P.W. 3 are supported by the original invoice copy of which Ext. Ka-6A has been filed by the respondent. The respondent examined D.W. 1 Shabuddin, Proprietor of Laxmi Transport, D.W. 2 Nabi Ahmad an employee of the Gupta Brothers and D.W. 3 R.C. Shukla to prove that a consignment from M/s. Bharat Medicinhouse was delivered to M/s. Gupta Brothers & Company on 12-9-66. D.W. 3 and R.C. Shukla stated that in his presence the Inspector of Drugs took some capsules by opening a sealed package and to the same effect was the testimony of Nabi Ahmad D.W. 2, an employee of M/s. Gupta Brothers and Company, Sitapur. Their statements are falsified by the fact that the drug Choloramphenical Capsules Batch No. 50 manufactured by M/s. Acichem Laboratories Bombay-60 of which a sample was taken by the Inspector of Drugs, was taken by the Inspector of Drugs, was not supplied by Bombay Medicinhouse but they had in fact supplied Choloramphenical Capsules Batch No. 48 manufactured by Medichem Laboratories Bombay-60, of which a sample was taken by the Inspector of Drugs, was not supplied by Bombay Medicinhouse but they had in fact supplied Choloramphenical Capsules Batch No. 48 manufactured by Medichem Laboratories Bombay. Thus their statements that the Inspector of Drugs had forcibly opened a sealed package in their presence and had taken sample out of it are belied by the testimony of P.W. 1 and P.W. 3 and the documents on record. The lower appellate court which accepted this plea of the respdt. Thus their statements that the Inspector of Drugs had forcibly opened a sealed package in their presence and had taken sample out of it are belied by the testimony of P.W. 1 and P.W. 3 and the documents on record. The lower appellate court which accepted this plea of the respdt. that the drug was purchased from Bharat Medicinhours failed to notice the Batch Number of the drug and the name of its manufacture. Learned lower appellate court did not carefully scrutinise the evidence of the witnesses in the light of the documents on record. The finding of the lower appellate court, therefore, that the sample was taken from the sealed consignment, Capsules U.S.P. Batch No. 50 manuctured by M/s. Acichem Laboratories Bombay-60 which according to the report of the Public Analyst was not of standard quality and was misbranded and adulterated. In fact the capsules did not contain any Choloramphenical. 6. Coming to the defence of the respdt. we may now examine the pleas which are open to him under section 19 (3) of the Act. It reads as under : - "19 (3) - A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves - (a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and (c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it." We have already held that the respondent as a salesman of M/s. Gupta Brothers & Company, Sitapur, sold the sample of Choloramphenical Capsules U. S. P. Batch No. 50 manufactured by M/s. Acichem Labourtatories Bombay-60 to the Inspector of Drugs. He has failed to prove that this drug was purchased by M/s. Gupta Brothers & Company Sitapur from Bharat Medicinhouse Lucknow. No evidence has been led by the respondent that the sample was purchased from M/s. Medichem Labouratories Bombay and that it was a genuine and not a spurious drug. Under sub-clause (3) (a) of Section 19 of the Act the respdt. No evidence has been led by the respondent that the sample was purchased from M/s. Medichem Labouratories Bombay and that it was a genuine and not a spurious drug. Under sub-clause (3) (a) of Section 19 of the Act the respdt. was required to prove that he had acquired the drug from a duly licensed manufacturer, distributor or dealer thereof. An attempt was made by the respondent to prove that he had purchased the drug from a licensed dealer, that is, Bharat Medicinhouse, but he has failed to prove the fact. On the other hand, it has been clearly established that what he had purchased from the Bharat Medicinhouse was not the same drug but of a different batch and made by a different manufacturer. 7. As regards the other defence of the respdt. that he 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 his possession remained in the same state as when he acquired it, it must be said that the burden lies on the respondent to prove these ingredients before he can claim the protection of that section. It appears that a stockist or seller of a drug is entitled to the defence under Sub-sec. (3) of Section 19 of the Act, but mere ignorance on the part of the respondent that he was unaward of the nature or the substance or quality of the drug is no defence. The prosecution is simply required to prove, in order to establish contravention under section 18 of the Act, that the accused had sold or exhibited a drug which was not of standard quality or which was adulterated or a misbranded drug. It was not necessary for the prosecution to establish that the respondent had done so intentionally, wilfully or with a guilty mind. The moment the ingredients of Section 18 of the Act are established, the prosecution is entitled to ask for an order of conviction to be recorded. If the accused wants to get rid of the effect of the prosecution evidence, then it is for him to establish the defences which are open to him under Sub-sec. (3) of Section 19 of the Act. If the accused wants to get rid of the effect of the prosecution evidence, then it is for him to establish the defences which are open to him under Sub-sec. (3) of Section 19 of the Act. One of the ingredients is that the accused did not know that the drug in any way contravened the provisions of Section 18 of the Act. The second ingredient is that he could not, with reasonable diligence, have ascertained that the drug in any way con traversed the same provision. The third ingredient is that the drug, while in his possession, remained in the same state when he acquired it. It was held in State v. Harilal Jethalal, A.I.R. 1963 Gujarat 36, that all the three ingredients are cumulative and all of them must be established to substantiate the defence. If any one of the ingredients is missing then the defence did not come to be established. It was further observed that :- "The object of the Legislature in enacting the relevant provision of the law on the subject is quite explicit. The interests of the public have got to be adjusted as against the inconvenience which may be caused to a dealer in medicine. The Legislature in its wisdom has taken the view that the menace to the public health is so great that if any spurious drug is found with any person dealing with such drugs, then, the burden of proving that he was in possession of such drug under the circumstances mentioned in Section 19(3) is upon him and if he fails to discharge the burden, then, the law must take its own course and, though, otherwise, he may not have any hand in the matter except that he stocked or sold the drug, he would be criminally responsible for such stocking and selling. It is not merely enough for a person to show that he had purchased a drug from a recognised dealer or in the open market. If he has done so he will certainly lay a foundation for his defence. But, if his defence does not carry him beyond this, it is not a vaild defence. It is not merely enough for a person to show that he had purchased a drug from a recognised dealer or in the open market. If he has done so he will certainly lay a foundation for his defence. But, if his defence does not carry him beyond this, it is not a vaild defence. In addition to this, when making the purchase, it is duty of the seller or a stockist to inspect reasonably the drug including the outward trappings in which the drug is contained so that thereby spurious articles do not come to be placed in the market and he does not become even unconsciously an agent for passing off spurious drugs to the consumers." In the present case, the respdt. has failed to prove that he had purchased the drug in question from a recognised dealer or in the open market and has failed to lay a foundation for his defence. Under the circumstances we have come to the conclusion that the respondent has failed to establish his defence under section 19 (3) of the Act. In that view of the matter, in our judgment, the view taken by the learned Sub-Divisional Magistrate was correct and the respondent was wrongly acquitted by the learned Civil & Sessions Judge, Sitapur. 8. The result is that the appeal is allowed and the order of acquittal dated 25-5-72 passed by the learned Civil & Sessions Judge, Sitapur, is set aside and the respondent is convicted of the offence under sections 18/27 of the Act. The order of the Sub-Divisional Magistrate Sitapur dated: 25-3-72 is restored convicting and sentencing the respondent to one year's R. I. and to pay a fine of Rs. 500/- within two months under sections 18/27 of the Act. In default of payment of fine the respondent shall further undergo R. I. for six months. 9. The respondent is on bail. He shall surrender and serve out the sentence awarded to him. His bail bounds are cancelled and sureties discharged. 10. The Sub-Divisional Magistrate, Sitapur shall submit compliance report within two months from today.