JUDGMENT By the Court.-This is the Complainant-Drugs Inspector's appeal against the acquittal of the accused under Section 18 (c) read with Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940 (Act for short) by the learned JMFC Panaji by judgment/order dated 30.3.2002. 2. The parties hereto shall be referred to in the names as they appear in the cause title of criminal case No. 155/87/C. 3. The undisputed facts which could be said to have been proved by the complainant with his own evidence, the documents produced by him and the witnesses examined in support of his case could be stated as follows datewise:- The accused made an application on or about 16.10.1986 for the grant of a licence in Form 19 of the Drugs and Cosmetics Rules, 1945 (Rules, for short) in the name of Mahalsa Distributors and paid a licence fee of Rs.80/-. The Office of the Drugs Controller, Panaji by letter dated 30.12.1986 called upon the accused to submit some documents. The accused by reply dated 30.12.1986 informed the said Drugs Controller that he would be submitting the documents, but subsequently the matter of obtaining a licence as applied for was not pursued by the accused. The Goa Medical College published a tender notification bearing No.5/86 dated 30.4.1986 for supply of certain drugs and medicines to their hospital pharmacy. The accused offered his quotation for the supply of sutures in the name of Mahalsa Distributors by his letter dated 5.6.1986 for about 22 drugs (sutures) and made an earnest money deposit of Rs.300/-. The accused was awarded two orders against the said tender notification No. 5/86 and accordingly the accused supplied initially three items vide invoice dated 21.11.1986 (Exh. PW 1/C) valued at Rs. 672/- and thereafter another item by invoice dated 9.1.1987 valued at Rs.238.50 (Exh. PW 1/N). Both the said invoices issued by the accused in the name of the said Mahalsa Distributors did not bear any drug licence number. The accused was paid the sum of Rs. 672/- vide cheque dated 9.1.1987 and Rs. 238.50 vide cheque dated 16.2.1987 which cheques the accused deposited in his account with UCO Bank, panaji and the said amounts were duly credited to the current account No. 604 of the accused in the name of Mahalsa Distributors held by the accused in the said UCO Bank, Panaji (Exh. PW 1/O). The accused when questioned under Section 313. 238.50 vide cheque dated 16.2.1987 which cheques the accused deposited in his account with UCO Bank, panaji and the said amounts were duly credited to the current account No. 604 of the accused in the name of Mahalsa Distributors held by the accused in the said UCO Bank, Panaji (Exh. PW 1/O). The accused when questioned under Section 313. Cr PC. 1973 admitted having supplied the said sutures to the Goa Medical College in the sum of Rs. 672/- and Rs. 238.50. respectively. The accused obtained a licence on or about 28.3.1987 from the Addl. Drugs Controller for the State of Karnataka, Bangalore in the name of M/s. Acme Medical Supplies in respect of the premises situated at Rajajinagar, Bangalore. The said licence was in Form 21-B and clearly mentions that the competent person in-charge is Shri L.N. Vaidya. The Goa Medical College published on or about 20.4.1987 another tender notification No. 4/87 and the accused by his letter dated 25.5.1987 in the name of Mahalsa Distributors offered his quotation for 18 drugs under List A. 30 drugs under List B and for other suturing materials and thereafter made an earnest money deposit of Rs.500/- and Rs. 400/by drafts dated 21.5.1987 and 26.5.1987 issued by UCO Bank, Panaji. The accused was awarded tender for the supply of 500 bottles of Inj. Peritoneal Dialysis Solution in Acetate 1000 ml. bottle manufactured by Health Line, 500 bottles of Inj. Peritoneal Dialysis Solution in Lactate 1000 ml. bottle manufactured by Health Line, 150 cans of Cidex Solution (5 ltrs. can); 20 cans of Cidex Solution (2 ltr. can) and 100 boxes of Sigmalog Autoclave Labels. The first two items were delivered personally by the accused on 27.7.1987 in the hospital pharmacy of the Goa Medical College with a promise that he would bring the bill/invoices in the afternoon period of 27.7.1987, but the accused did not turn up. In fact what was actually delivered in lieu of item No.2 above, was Pedilyte-I with 1.5 Dextrose Infusion Solution for Peritoneal Dialysis. The reason for the accused not turning up on that day probably was because on 27.7.1987 itself there was a news item on daily "Herald" (Exh. PW 3/A) stating that Mahalsa Distributors had supplied drugs to Goa Medical College without a drug dealer's licence ... etc. and because of the said news item that the complainant along with the Asst. The reason for the accused not turning up on that day probably was because on 27.7.1987 itself there was a news item on daily "Herald" (Exh. PW 3/A) stating that Mahalsa Distributors had supplied drugs to Goa Medical College without a drug dealer's licence ... etc. and because of the said news item that the complainant along with the Asst. Drugs Controllers had visited the Goa Medical College and inspected their documents. It appears that ill date not only the accused did not, produce the invoices in respect of the supply of drugs made by the accused on 27.7.1987. but the accused has also not been paid for the same. The complainant initially issued orders under Section 22 (1)(c) of the, Act to the pharmaceutical chemist of the Goa Medical College requiring them not to dispose of the stock in their possession for a period of 20 days and thereafter on 11.8.1987 the complainant seized the stock in Form 16 and under a panchanama. There is no dispute that some of the drugs which were seized and supplied under both tenders were drugs as defined under the Act. The case of the accused was that the said drugs were directly supplied to the Dean of Goa Medical College by Health Line Pvt. Ltd., Bangalore under invoice Nos. 313 and 314 dated 21.7.1987 through Shri Varamahalaxmi Roadways. The accused when examined under Section 313, Cr PC. 1973 produced copies of the said three receipts at Exhs. DW 1/A and DW 1/B and further stated that he had not directly supplied the said seized drugs to Goa Medical College, Bambolim though he had licence to send the said drugs throughout the country namely licence No. 21-B. The accused stated that the drugs were directly supplied to avoid double taxation in both the States and it is the Goa Medical College which also requested him to supply directly to them. The accused stated that he did not visit Goa Medical College, Bambolim at any time as the drugs were supplied to Goa Medical College Hospital, Bambolim as he was not personally doing any business of supplying the drugs to' GMC Bambolim nor he was storing any drugs in Govinda Building in the name of Mahalsa Distributors. The accused stated that he did not visit Goa Medical College, Bambolim at any time as the drugs were supplied to Goa Medical College Hospital, Bambolim as he was not personally doing any business of supplying the drugs to' GMC Bambolim nor he was storing any drugs in Govinda Building in the name of Mahalsa Distributors. The accused stated that there was no name board displayed there and he had given the address to avoid double taxation and for convenience and in good faith. The accused further stated that the case was filed with malafide intention and in order make him lose his business. 4. Section 18 of the Act provides that from such dates as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf, (a) (b) (c) manufacture for sale or for distribution. or sell or stock or exhibit or offer for sale or distribute any drug or cosmetic, except under and in accordance with the conditions of the licence issued for such purpose under this Chapter. 5. Section 27 of the Act deals with penalties and provides that whoever, himself or by any other person on his behalf, manufactures for sale or for distribution or sells or stocks of exhibits or offers for sale or distributes, (a) ……. (b) any drugs, - (i) …….. (ii) without a valid licence as required under clause (c) of Section 18 shall be punishable with imprisonment for a term which shall not be less than one year. but it may extend to three years and with fine which shall not be less than Rs. 5000/- Provided that the Court may, for any adequate or special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and a fine of less than Rs. 5000/-. 6. The contention of Shri Sardesai, the learned P.P. appearing on behalf of the complainant is that the accused had supplied the drugs in the name of Mahalsa Distributors and the said Mahalsa Distributors had no licence either to sell or distribute the said drugs and therefore the prosecution had proved that the accused had committed the offences for which he was charged. 7. 7. On the other hand, Shri Naik, the learned advocate of the accused submitted that the prosecution did not make out a case either of sale or of offer for sale and in this context Shri Naik placed reliance on the case of Poppatlal Shah v. The State of Madras, AIR 1953 SC 274 , Shri Naik next submitted that (he accused had supplied the said drugs as an agent of M/s. Acme Medical Supplies as well as Health Line Pvt. Ltd. who had licence issued under the Act and therefore the accused did not commit any offence. Shri Naik has next referred to Section 182 of the Indian Contract Act, 1872 which defines an "agent" as a person employed to do any act for another or to represent another in dealings with third persons. Further. Shri Naik has submitted that the prosecution has not proved that the ownership of the said drugs was transferred to the Goa Medical College. In reply it has been submitted by Shri Sardessai, learned P.P. that even an agent is required to get a licence in order to sell or distribute drugs. 8. In the case of Poppatlal Shah v. The State of Madras, AIR 1953 SC 274 . The Hon'ble Supreme Court observed that the expression "sale of goods" is a composite expression,. consisting of various ingredients or elements. Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is not completed or concluded unless the purchaser becomes the owner of the property. 9. In the case of Mohd. Shabbir v. State of Maharashtra, AIR 1979 SC 564 the Supreme Court was dealing with Sections 27 and 18 of the Act and it was observed that Section 27 postulated three separate categories of cases and no other. (1) manufacture for sale: (2) actual sale: (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied. Section 27 of the Act would not be attracted. 10. In the case of State of Karnataka v. M/s Kannika Stores, Mysore and others, 1994 Cri LJ 743, a Division Bench of the Karnataka High Court was dealing with the expression "offer for sale" in Section 18 (a) of the Act and it observed that the term "offer for sale" would mean displaying articles in a shop so as to make a customer know that they were available for purchase. It is the manner of keeping or exhibiting them in a shop, which is relevant to see if they were really offered for sale. 11. In my opinion, the submissions made on behalf of both the parties cannot be accepted. The decisions cited on behalf of the accused and referred to by me hereinabove are also not attracted to the facts of the case at hand. 12. It would be of some significance to refer to Rule 62 of the rules which provides that if drugs are sold or stocked for sale at more than one place, separate application shall be made and a separate licence shall be issued, in respect of each such place: Provided that this shall not apply to itinerant vendors who have no specified place of business and who will be licensed to conduct business in a particular area within the jurisdiction of the licensing authority. 13. No doubt the accused pleaded that he was an agent of M/s Acme Medical Supplies as well as M/s. Health Line Pvt. Ltd. and produced the said three receipts (Exh. DW 1/A and DW I/B). but the accused apart from producing xerox copies of the said receipts, did not examine anyone to support the contents of the same. The said receipts on the face of it show that the consignment or the drugs mentioned therein was sent to the Dean of the Goa Medical College. It is difficult to accept whether the Dean, Goa Medical College would have at all accepted any drug for which the Dean had not placed any order. The said receipts on the face of it show that the consignment or the drugs mentioned therein was sent to the Dean of the Goa Medical College. It is difficult to accept whether the Dean, Goa Medical College would have at all accepted any drug for which the Dean had not placed any order. In fact, a suggestion to this effect was categorically denied by the complainant further stating that the Goa Medical College had not placed any order in favour of the said company for the said drugs. As already stated, the Goa Medical College had invited tenders and it is pursuant to the said tenders that the drugs were supplied to the Goa Medical College. The contention that no sale was made out cannot be accepted. As already stated as far as the first tender No.5/36 is concerned, the accused has not only admitted having supplied the drugs, but even accepted the price for the same. As far as the second tender No. 4/87 was concerned, the drugs were already supplied to the Goa Medical College by the accused as stated by the complainant and the witnesses examined in support of the complaint and not only that, the said drugs were even subsequently used by the Goa Medical College. That the accused has not obtained the price for the same is an entirely different matter and probably the accused did not wish to receive the price for the same because of the controversy which came to light pursuant to the said report published in the said newspaper. In my view there was a complete sale of the drugs by the accused as far as both the tenders were concerned in respect of the drugs supplied by the accused. Although it has been submitted on, behalf of the accused that he is the agent of M/s Acme Medical Supplies, one does not know what is the legal entity or identity of M/s Acme Medical Supplies or whether the accused himself is the person, doing the business in the name of M/s Acme Medical Supplies as he was also doing the business in the name of M/s Mahalsa Distributors. However, what is significant to note is the admission made more than once by the complainant himself. The complainant stated that a person holding a drugs licence under the Act could supply the drugs anywhere in India including Goa Medical College. However, what is significant to note is the admission made more than once by the complainant himself. The complainant stated that a person holding a drugs licence under the Act could supply the drugs anywhere in India including Goa Medical College. Likewise Shri Sardessai, learned Public Prosecutor conceded that some of the parties who had applied for tenders were from Bombay, Ahmedabad, Gujarat, etc. and that the said parties could have supplied the drugs to Goa Medical College on the basis of the licence held by them issued at those places by the respective Drug Controllers. If that is the case, I fail to understand as to how the accused could not have supplied the drugs to Goa Medical College in the name of M/s Acme Medical Supplies. The accused did have a licence in the name of M/s Acme Medical Supplies and it was specifically mentioned on the said licence that the person in-charge was L.N. Vaidya. Licence, in my opinion, is something personal and it was given to Shri L.N. Vaidya by the licensing authority at Bangalore. In my opinion, the accused could have certainly supplied the drugs to Goa Medical College under the said licence in Form 21-B though he had submitted the tender in a different name of Mahalsa Distributors. It is not the case of the complainant that M/s Acme Medical Supplies or for that matter M/s Mahalsa Distributors have any different identity than that of the accused, both apparently being proprietary concerns of the accused. Complainant does not say they are separate entities. In Court's opinion the accused committed no offence when he supplied the drugs in the name of M/s Mahalsa Distributors when he had a licence to supply the same in the name of M/s Acme Medical Supplies. However, Court must hasten to add that the accused had no licence at all when he supplied the drugs relating to the first tender No. 5/86 while he had a licence relating to the second tender No. 4/87. 14. In the above view of the matter, the accused certainly deserved to be given the benefit of doubt as far as the supply of drugs relating to second tender No.4/87, is concerned. The accused deserves to be convicted regarding the supply of drugs without a licence relating to the first tender No. 5/86. 15. 14. In the above view of the matter, the accused certainly deserved to be given the benefit of doubt as far as the supply of drugs relating to second tender No.4/87, is concerned. The accused deserves to be convicted regarding the supply of drugs without a licence relating to the first tender No. 5/86. 15. The learned JMFC did not at all consider the facts in their proper perspective nor the law applicable to them. 16. The appeal therefore deserves to succeed and the judgment/order acquitting the accused deserves to be set aside. Consequently the accused is hereby convicted under Section 18 (c) read with Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940 (as far as the supply of drugs of the first tender No. 5/86 is concerned and which supply the accused admitted having been made by him). Appeal allowed. 2ND SEPTEMBER, 2004. 17. Shri Sardessai, the learned P.P. has left the matter of sentencing the accused to the discretion of the Court. Shri Naik, the learned counsel of the accused has submitted that the accused be dealt under Section 3 of the Probation of Offenders Act, 1958 and in support of the submission. Shri Naik has placed reliance on the case of Isher Das v. The Slate of Punjab, AIR 1972 SC 1295 . 18. In the case of Isher Das (supra) the Supreme Court has observed that the provisions of the Probation of Offenders Act point to the conclusion that their operation is not excluded in the case of persons found guilty of offences under the Prevention of Food Adulteration Act. Assuming that there was reasonable doubt or ambiguity, the principle to be applied in construing a penal act is that such doubt or ambiguity should be resolved in favour of the person who would be liable to the penalty. It has also to be borne in mind that the Probation of Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act. As the legislature enacted the Probation of Offenders Act despite the existence on the statute book of the Prevention of Food Adulteration Act, the operation of the provisions of Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactment i.e. Prevention of Food Adulteration Act. As the legislature enacted the Probation of Offenders Act despite the existence on the statute book of the Prevention of Food Adulteration Act, the operation of the provisions of Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactment i.e. Prevention of Food Adulteration Act. Indeed, as mentioned earlier, the non obstante clause in Section 4 of the Probation of Offenders Act is a clear manifestation of the intention of the legislature that the provisions of the Probation of Offenders Act would have effect notwithstanding any other law for the time being in force. The decision in the case of Ramaji Missir v. State of Bihar, AIR 1963 SC 1088 was also referred to wherein the Supreme Court had held that while dealing with the Probation of Offenders Act its beneficial provisions should receive wide interpretation and should not be read in a restricted sense. 19. That was a case where the accused was less than 20 years of age and had appeared to be in a repentant mood. The said accused could have been punished in that case with imprisonment for a term which could not be less than six months, but which could extend to six years and with fine which would be not less than Rs.1000/-. It was also a case where in terms of proviso to Section 16 (1) of the Prevention of Food Adulteration Act the Court could for adequate and special reasons to be mentioned in the judgment. impose a sentence of imprisonment for a term of less than six months or of fine of less than Rs.1000/- or of both imprisonment for a term of less than six months and fine of less than Rs. 1000/-. 20. Section 3 of the Probation of Offenders Act 1958 would be applicable to offences which are punishable with imprisonment for not more than two years, or with fine or with both in addition to the other offences of IPC mentioned therein. In my opinion, this would also not be a fit case to invoke the provisions of Section 4 of the Probation of Offenders Act, 1958. It has been submitted on behalf of the accused that the accused is over 65 years of age and at present he is doing social work by teaching Yoga, art of living, etc. In my opinion, this would also not be a fit case to invoke the provisions of Section 4 of the Probation of Offenders Act, 1958. It has been submitted on behalf of the accused that the accused is over 65 years of age and at present he is doing social work by teaching Yoga, art of living, etc. The accused has in his favour all but mitigating circumstances. This is a case where the accused did apply for licence, but did not pursue it in right earnest and thereafter supplied drugs of the value of Rs.910.50. The accused thereafter did obtain a licence from Bangalore. This was way back in the year 1986 and the accused, as already stated, is no longer in the said business. The Supreme Court in the case of Umrao Singh v. State of Haryana, AIR 1981 SC 1723 has stated that in appropriate cases sentence lower than the minimum prescribed can be awarded. In my view, considering the totality of the facts and circumstances of the case and the fact that at present the accused is no longer in the said business and has devoted his life to social work, the ends of justice will be met by imposing a token sentence against the accused. The accused is therefore hereby sentenced under Section 18 (c) read with Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940 to undergo one day's simple imprisonment till rising of the Court and to pay a fine of Rs. 100/-. 2]. The accused has undergone the said sentence. The accused to pay the fine before the trial Court within thirty days.