IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.96 OF 2001 Between: The Drug Inspector, Chirala, Prakasam District, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant AND 1. Sri B. Muralidharan 2. Sri V. Veera Swamy 3. Sri V.B. Satyanarayana ..... Accused/Respondents The Court made the following: JUDGMENT: The criminal appeal under Section 378(4) (5) and (1) of Cr.P.C., 1973, is directed against the judgment, dated 15.12.1999, made in C.C.No.309 of 1995, on the file of the learned Additional Munsif Magistrate, Chirala, whereunder and whereby, the respondents herein who are A1 to A3, were found not guilty of the charges under Section 27(b)(ii) for contravention of Section 18(c) and under Section 27(d) for contravention of Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’). 2. Brief facts that are necessary for disposal of the prosecution case may be stated as follows: On 07.10.2004, P.W.1 took samples of the drug ‘Phenyle’ Black Disinfectant Fluid (emulsifying) Grade 3, Class A, type normal batch No.002, manufacturing date July, 1994, manufactured by A1 M/s. Bharath Products, South India, from A2 for the purpose of analysis and forwarded it to the Government Analyst, Drugs Control Laboratory, Hyderabad, along with Original Memo in Form No.18 bearing No.47/DI-CRL/94 dated 07.10.1994. On 18.10.1994, P.W.1 received a letter, dated 07.10.1994, along with an original purchase bill from A2 to that effect that A3 had sold the Phenyles under the bill No. 47/14 dated 13.09.1994. On 06.02.1995, P.W.1 received the certificate of test from the Government Analyst, Drugs Control Laboratory, Hyderabad, declaring the said drug ‘Phenyle’ batch No.002 as of not of standard quality since the said drug did not conform to the standards in respect of ‘Stability and Phenol Co-efficient’. After obtaining necessary permission, P.W.3 filed the complaint. 3. When the charges under Section 27(b)(ii) for contravention of Section 18(c) and under Section 27(d) for contravention of Section 18(a)(i) of the Act were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 3 and got marked Exs.P1 to P38 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused were examined under Section 313(b) Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral or documentary evidence was adduced. 6. The trial Court, after considering the evidence on record, came to the conclusion that Ex.P21-Analyst Certificate does not contain the protocols of test applied and accordingly acquitted the accused. Challenging the same, the present criminal appeal is preferred by the State. 7. Now the point for determination is whether the complainant proved its case beyond all reasonable doubt against the respondents/accused of the charges under Section 27(b)(ii) for contravention of Section 18(c) and under Section 27(d) for contravention of Section 18(a)(i) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned Counsel appearing for the Public Prosecutor contended that the evidence of P.Ws.1 and 2 would go to show that the sample was lifted from the shop of A2; that A1 has got a license to manufacture ‘Phenyl’; and that A2 and A3 are the license holders and when the sample of ‘Phenyl’ was sent to the Analyst, it was found to be not in conformity to the standards in respect of ‘Stability and Phenol Co-efficient’ and hence, the prosecution proved its case beyond all reasonable doubt. 9. There cannot be any dispute that there is a presumption under law that the accused are presumed to be innocent until the contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by the order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or inadmissible evidence was taken into consideration, normally the appellate Court is slow in reversing the findings of the trial Court. 10. The Analyst report is marked as Ex.P21 which go to show that the sample of ‘Phenyl’ Batch No.002 was not of standard quality since the said drug did not conform to the standards in respect of ‘Stability and Phenol Co-efficient’, and therefore, it was of substandard quality. Basing on the decision reported in AIR 1960 Allahabad 460 (V 47C 117), as Ex.P21 does not contain the protocols of the test applied, the accused were acquitted. 12. It is not in dispute that A1 has got a license for manufacturing ‘Phenyl’. P.W.1, who is the Drug Inspector, admitted that the Analyst report does not disclose the protocol of the test applied. The protocol test is essential to know with regard to the analysis conducted by the Analyst. The decision relied upon by the trial Court would go to show that where the report of the Public Analyst does not state the protocols of the test applied, it cannot be said to be a report in the prescribed form. If the accused do not know the protocols of the test applied, they would not be in a position to adduce the evidence to controvert the report by suggesting that the test applied was not a conclusive test or was not a correct test. The report cannot be treated as evidence of the case stated therein. Admittedly, the Public Analyst, who analysed the article of cosmetics, is not examined in the trial Court. Admittedly, Ex.P21 does not disclose the protocols of the test conducted by the Analyst. Therefore, the trial Court rightly acquitted the accused. The said order does not suffer from any infirmities so as to call for interference by this Court. Therefore, there are no compelling or substantial reasons to interfere with the order of the acquittal passed by the trial Court. Hence, the criminal appeal is devoid of merit and is liable to be dismissed. 13. Accordingly, the criminal appeal is dismissed confirming the judgment, dated 15.12.1999, made in C.C.No.309 of 1995, on the file of the learned Additional Metropolitan Magistrate, Chirala. _______________ (K.C. BHANU, J) Date: 2nd September, 2009 KL