JUDGMENT N.N. Sharma, J. 1. This appeal is directed against the order dated 10-8-1977 by Sri P.N. Chaubey, II Additional Sessions Judge, Deoria in Sessions Trial No. 3 of 1975 by which appellant was convicted under section 27 of Drugs and Cosmetics Act No. XXIII of 1940 (hereinafter referred to as the 'Act') and sentenced to two years' rigorous imprisonment; a fine of Rs. 1,000/- was further imposed on appellants in default of payment of fine he was to undergo 3 months simple imprisonment. 2. Appellant was further convicted under section 28 of the aforesaid Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100/- in default he was to undergo simple imprisonment for one month. All the sentences of appellant were ordered to run concurrently. Prosecution story, briefly stated is that appellant is proprietor of M/s. Jagdish Medical Store, Kasia, district Deoria. It was on 21-10-1972 at about 1 P.M. that Drug Inspector visited the said store. Appellant happened to be present at that store. Drug Inspector served notice Form No. 17 (Ex. Ka-1) on appellant and secured acknowledgment receipt from him (Ex. Ka-2). The sample was divided into four portions and each was sealed according to rules. One sample was made over to the appellant and another, which was subsequently produced in court is Ex. 1. One portion of this sample was sent to Government Analyst, GDL Calcutta for test and analysis under clause (1) of section 23 of the said Act alongwith the letter Ex. Ka-3. Remaining stock of Neurobion Merck from the medical store of the appellant was seized and is Ex.-2 for which receipt Ex. Ka-4 was prepared. This copy of receipt was made over to the appellant. Inspector also sent a letter to ADM Kasia, for custody of seized stock (Ex. Ka-5). He received report of Government Analyst (Ex. Ka-6) dated 20/21-7-1973 which runs as below:- "Description-Red coloured liquid in amber glass ampule. Gives positive tests for Vitamins B1, B6 and red Boaltar dye identified as Amaranth. Authentic sample of batch No. 26371 obatined from the manufacturer does not contain any red coaltar dye. Assay Found/ml. Claim/ml. Method. Thiamine Hydrochloride : 15 mg. 33 mg. U.S.P. XVIII, p-913 Pyridoxine Hydrochlorides: 35.3 mg. 33 mg. U.S.P. XVIII, p. 166. Cyanocobalamin: 179,82 mg. 333 mg. Gives positive tests for Vitamins B1, B6 and red Boaltar dye identified as Amaranth. Authentic sample of batch No. 26371 obatined from the manufacturer does not contain any red coaltar dye. Assay Found/ml. Claim/ml. Method. Thiamine Hydrochloride : 15 mg. 33 mg. U.S.P. XVIII, p-913 Pyridoxine Hydrochlorides: 35.3 mg. 33 mg. U.S.P. XVIII, p. 166. Cyanocobalamin: 179,82 mg. 333 mg. M.S.P. Reason for declaring the sample as not a standard quality- Remarks J-The sample does not conform to claim in respect of Thiamine Hydrochloride and Cyanocobalamin content. N.B.-The sample is partly adulterated and is considered misbranded under section 17B (c) (ii) of the Drugs and Cosmetics Act." 3. It was on 6-8-1973 that Inspector sent a letter, copy of which (Ex. Ka-8) is on record along with copy of the report Ex. Ka-6 to the appellant to show cause against his prosecution within 28 days from the receipt of the letter. No cause was shown. Inspector seat a letter to Joint Director of Drugs Controller U.P. Lucknow for sanction of prosecution of appellant vide Ex. Ka-9. Ex. Ka-10 is letter from Swasthya Sewa Avam Pariwar Niyojan Nideshak, U.P. to the Assistant Drugs Controller for procuring sanction for prosecution. Drug Inspector submitted complaint in the court of Judicial Magistrate, Kasia. Magistrate committed appellant to the Court of Sessions. 4. In his statement appellant denied the sampling and also alleged that as he failed to oblige Durg Inspector by paying the usual bribe so he has been falsely involved in the case. Prosecution in support of their case examined Drug Inspector Sri K.S. Selat, Sri Ram Kumar Tewari PW 2 and Sri Kaushal Kishore Srivastava, Drug Clerk in the office of the Chief Medical Officer, Deoria, PW 3. No evidence was adduced in defence. 5. Learned trial judge recorded the conviction and sentences aforesaid. 6. I have heard learned counsel for parties and perused the record. A perusal of section 23 of the said Act shows the procedure to be pursued by Drug Inspector at the time of sampling:- "23. Procedure of Inspector (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 acknowledgement therefor. A perusal of section 23 of the said Act shows the procedure to be pursued by Drug Inspector at the time of sampling:- "23. Procedure of Inspector (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 acknowledgement therefor. (2) Where the price tendered under sub-section (1) is refused, or where the Inspector seizes the stock of any drug under clause (e) of section 22, he shall tender a receipt therefor in the prescribed form. (3) Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. Provided that where the sample is taken from premises whereon the drug is being manufactured, it shall be necessary to divide the sample into three portions only." 7. As regards sampling there is statement of Drug Inspector, PW 1 who testified about his visit to this store in that noon. Appellant was present at the shop and disclosed that he was proprietor of the store. Inspector seized two samples. One sample was of Neurobion Merck, batch No. 26371 and another was of injection Strpto. 8 ampules of Neurobion were seized and divided in 4 portions and each was separately sealed up. Each portion was separately labelled; one was made over to the appellant who was asked to sign them, one portion was sent for analysis. He further testified that a sum of Rs. 19.20/- was paid to appellant vide receipt Ex. Ka-2 which was attested by one Ram Kumar Tewari. On receipt of the report of Government Analyst appellant was informed vide letter Ex. Ka-8 and the complaint was filed. Ram Kumar Tewari PW 2 who resides in Gorakhpur testified that on that day he had gone to this shop to procure order for supply of medicines and sale of medicines, and this sample was seized by Drug Inspector is his presence vide receipt Ex. Ka-2 which was signed by him. 8. Ka-8 and the complaint was filed. Ram Kumar Tewari PW 2 who resides in Gorakhpur testified that on that day he had gone to this shop to procure order for supply of medicines and sale of medicines, and this sample was seized by Drug Inspector is his presence vide receipt Ex. Ka-2 which was signed by him. 8. On behalf of appellant it was successfully argued before me that signatures of Sri Ram Kumar Tewari a chance witness on this receipt are forged. He was not present at the time of sampling; he did not reside in Kasia; he was resident of Gorakhpur. He was amenable to the influence of Drug Inspector and even the signatures made by him appear to have been made in different ink. This contention seems weighty in view of the fact that in his own statement or document prepared by Drug Inspector on that day no mention was made of the fact that this sampling was done in presence of Ram Kumar Tewari or Ram Kumar Tewari was actually present at the time of sampling. Had it been so his name must have been mentioned in Ex. Ka-1 by Drug Inspector himself and he must have testified about his presence. 9. This is the main infirmity about non observance of the rule as provided by Section 23, sub-section (3) of the Act, which cannot be lightly glassed over. 10. The next infirmity is that there is no cogent evidence about the supply of the copy of the report of the Government Analyst by Inspector to the appellant as provided by section 25 of the aforesaid Act. It reads as below:- "25. Reports of Government Analyst-(1). The Government Analyst to whom a sample of any drug has been submitted for test or analysis under subsection (4) of section 23 shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt, thereof shall deliver one copy of the report to the person from whom the sample was taken (and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18-A) and shall retain the third copy for use in any prosecution in respect of the sample. (2) The Inspector on receipt, thereof shall deliver one copy of the report to the person from whom the sample was taken (and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18-A) and shall retain the third copy for use in any prosecution in respect of the sample. (3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken (or the person whose name, address and other particulars have been disclosed under section 18-A), has, within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report." In his statement Inspector testified that he has sent the report of Analyst to appellant through registered post. However, appellant has denied it. It was obligatory on the part of the Inspector to have established the supply of the copy of the report to appellant as required by section 25 (2) aforesaid. The mere fact that after several years the copy was supplied to appellant in the court at the stage of hearing cannot cure the defect as the valuable right of the appellant to have the sample tested or analysed in the Central Durgs Laboratory as provided under section 25 (4) of the said Act, has been denied to him. There has also been non-observance of section 18 (1) of the said Act. 11. Learned counsel for the State vehemently argued before me that letter Ex. Ka-8 cannot be regarded as bogus. The supply of copy of the report at the stage of trial was enough. 12. I do not subscribe to this view. When the Drug Inspector procured writing of appellant at time of sampling, he should have carefully preserved the postal receipt and the acknowledgment due in proof of the supply of copy of report of Government Analyst to appellant. Government Analyst has not been examined in this case and under such circumstances his report cannot be held as conclusive as the non-observance of the said provisions have operated to the manifest disadvantage of appellant. Government Analyst has not been examined in this case and under such circumstances his report cannot be held as conclusive as the non-observance of the said provisions have operated to the manifest disadvantage of appellant. It was held in Dharma Deo Gupta v. State, AIR 1958 Allahabad 870:- "The report of the Government Analyst is to be held to be conclusive only if it is not challenged according to the procedure given in the section. This by itself proves that it is not conclusive evidence in the sense 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 rebuttal is satisfactory. In other words the Legislature, although it has denied the right of cross-examination 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 intravires 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 procured only in the manner mentioned in Section 25 of the Drugs Act. The basic rights can be abridged only in the manner prescribed and in no other manner. In this respect I find that this report was not obtained according to the prescribed procedure. The repeater: reference, to Section 23 in Section 25 makes it quite clear to me that it is only when a sample is taken under the provisions of Section 23 (3) of the Drugs Act that the report submitted by the Government Analyst can foe given this finality. The repeater: reference, to Section 23 in Section 25 makes it quite clear to me that it is only when a sample is taken under the provisions of Section 23 (3) of the Drugs Act that the report submitted by the Government Analyst can foe given this finality. Section 23 (3) of the Drugs Act runs as follows:- "Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked." In the instant case Drug Inspector did not testify that the signatures of appellant were procured on labels or any writing was procured from him about the supply of the report of Government Analyst and under such circumstances the report of the Government Analyst without his examination cannot be taken as conclusive as was held in Drugs Inspector v. M/s. Chimanlal and Company, AIR 1968 Madhya Pradesh (Full Bench) 238, which reads as below:- "The Government Advocate contends that it is not necessary that the Government Analyst should be examined and his report can be taken as evidence. We are not at all in agreement with this interpretation of Section 25 (3). Section 25 has to be read along with Section 22 of the Act which describes the powers of Inspectors. Under Section 22 (b) the Inspectors are authorised to take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed. It is after taking samples that the Inspector has to send them to the Government Analyst. Section 23 speaks of procedure how the Inspector would take samples. It is after observing all these formalities, that Section 25 (3) comes into operation." 13. No other point was argued before; me. 14. In the result, appeal is allowed. Conviction and sentences recorded by learned trial Judge are set aside and the appellant is acquitted of all the charges under sections 27 and 28 of the said Act. It is after observing all these formalities, that Section 25 (3) comes into operation." 13. No other point was argued before; me. 14. In the result, appeal is allowed. Conviction and sentences recorded by learned trial Judge are set aside and the appellant is acquitted of all the charges under sections 27 and 28 of the said Act. Appellant is on bail and need not surrender to his bonds which are discharged. Appeal allowed.