The applicant has filed this revision to impugn the order of the learned Additional City Magistrate dated 4th October 1969, by which he refused to order the return of 2577 packets of Quinine Ethyle Carbonate, seized by the Drug Inspector from the premises of the applicant on 11th June 1964. Accordingly a complaint was hied against Ismail, a director of the applicant company, under sections 10 (a) and 18 (a) (i) read with section 27 of the Drugs Act, 1940, before an Additional City Magistrate which ended in his conviction vide judgment dated 7th August 1965. The sentence awarded was three months' rigorous impri sonment and Rs. 1,000 fine, or in default to undergo rigorous imprisonment for three weeks. The packets of the medicine seized were ordered to be destroyed. Against this order Ismail appealed to the Sessions Court, which appeal was heard by the Additional Sessions Judge who, vide judgment dated 28th Novem ber 1966, acquitted him but maintained the order of con fiscation.
A revision was filed in the High Court against that part of the order which dealt with the confiscation of 2577 packets and vide order dated 26th September 1967, a learned Single Judge of this Court remanded the case to the Additional City Magistrate for deciding it on merit. The matter was considered by an Additional City Magistrate who, vide order dated 5th June 1968, held that he had no jurisdiction to pass an order with regard to the disposal of the property and it would be for the appellate Court to alter or modify that decision. Again a revision was preferred in the High Court against this order and a learned Single Judge of this Court on 21st October 1968, while dismissing the revision, directed the Additional City Magistrate to decide the question on merit. The impugned order has been passed pursuant to that direction and the Additional City Magistrate has maintained the order directing the medicinal packets to be destroyed.
2. At this stage I would like to emphasise that at no stage the High Court entered into the merits of the question and it is open for me to consider the point as to whether the order confiscating the medicinal packets was a proper order. The learned counsel for the State chas objected to the return of the packets, on the ground that the order confiscating the packets was passed in the case in which Ismail was an accused and that the present applicant has no locus standi to claim its possession or to impugn it. This contention is misconceived, firstly, on the ground that Ismail was no other than a director of the appli cant, which had purchased these medicinal packets from Rahim General Stores and under section 38, it was the Director who was prosecuted and not the company and, secondly, that the question vis-a-vis as to who should get the possession is not disputed before me and, therefore, it is of no importance as to who applies for its return. The fact nevertheless remains that the impugned order was passed on the Spplication of the applicant and that order has been impugned before me.
3. Mr. Khalid Ishaq has urged that the prosecution has not established that the drug was not of standard quality and in that context he has invited my attention to section 8 (i) of the Drugs Act, 1940,-in which the expression "standard quality" has been defined to mean to apply to a drug which complies with the standard set out in the Schedule. He has also referred to me item 4 in the Schedule. Against item No. 4 the standard set out reads as under :-- "The standards of identity, purity and strength specified in the latest edition of the British Pharmacopoeia or the British Phar maceutical Codex or any other prescribed pharmacopoeia, or adopted by the permanent Commission on Biological Standar disation of the World Health Organisation."
In this context he has urged that the prosecution has not estab lished that the medicine admittedly manufactured by Bogota Laboratories, U. S. A., did not conform to any pharmacopoeia adopted by the permanent Commission on Biological Standar disation of the World Health Organisation, the onus of which was on the prosecution. The Public Analyst, according to him, has merely confined his examination to the standard set out in the British Pharmacopoeia which, by no means, can form the basis for holding that it was not of standard quality. As to the merit of this contention, the language of the standard set out in the schedule does admit of other standards prescribed therein and accordingly the contention of Mr. Khalid Ishaq in the light of what has been urged has substance. This contention was however raised in the alternative as according to the learned Magistrate the medicinal packets were not returned because they were not of standard quality.
4. His other contention which goes to the root of the matter is that the power of confiscation can only be exercised provided the person is convicted and in this connection he has invited my attention to sections 14 and 31 of the Drugs Act. Section 14 enables the Court to confiscate the consignment in respect of which an offence has been committed under section 13 of the Act, which deals with the contravention of its provisions while section 31 empowers the confiscation only where a person is convicted. In my view, the power to confiscate under section 14 can only be exercised provided the prosecution ends in conviction according to the language of section 31 and not otherwise. The learned Additional Sessions Judge while acquitting Ismail has omitted to consider section 31 of the Act but has merely main tained the order of the trial Court confiscating the medicinal packets. This contention accordingly prevails.
5. For the above reasons I would accept the revision, set aside the impugned order and direct that the medicinal packets be returned to the applicant.