Chandra Prakash, J. - (1.)This is an appeal against the order dated 9-12-1971 of Sri R. A. Dubey, Sub-Divisional Magistrate, Gorakhpur acquitting the respondent Purshottam Pd. Jaiswal. The respondent was tried under Section 18 (a) (i), (ii), (iii) and (iv) read with section 17(a)(f) and Section 17(b) (c) (ii) of the Drugs & Cosmetics 'Act, 1940 (hereinafter to be referred to as the Act). The allegations of the prosecution were that the respondent as Incharge & Salesman of M/s. Purshottam Medical Stores, Chauri Chaura, Gorakhpur was carrying on the sales of Chloramphenitol capsules, batch no. nil, and the name of the manufacturer unknown on 3-4-1969. The Inspector of Drugs Chandra Bhushan Awasthi (P. W. 3) inspected the shop of the respondent on 3-4-1969 at about 2 P. M. in the presence of the respondent and the witnesses Abdul Hakim and Moti Lal. He recovered the capsules of Chloramphenicol from the almirah of the respondent shop and they were open for sale. From a perusal of these Chloramphenicol capsules the Inspector of Drugs suspected them to be spurious. He, therefore, took 24 capsules in his possession as samples. He then divided these 24 capsules into four equal parts. The three parts were kept in three packets and the fourth part was kept in the phial in which they were placed. He labelled all the four parts and sealed them. He also requested the respondent to put his seal if he so liked, but since the respondent had no seal, he put only his signatures. The Drug Inspector Sri Awasthy also signed these samples and sealed them. He gave one sample to the respondent in the presence of the witnesses and obtained latter's signature on Form no. 17-Ex. Ka/3. The Drug Inspector also obtained the receipt-Ex. Ka/3(a) from the respondent after paying him Rs. 4.00 as the price of the sample taken and this receipt bears the signature of the respondent. The Drug Inspector then sent one of the samples to the Central Drug Laboratory, Calcutta for analysis vide letter Ex. Ka/4. The Government Analyst of the Central Drug Laboratory, Calcutta through his letter dated 9th May, 1969 Ex. Ka/2 reported that the sample sent to him did not contain any Chloramphenicol, but contained only Sodium bicarbonate and chloroguine phosphate. It was, therefore, a spurious preparation and must be considered adulterated under Section 17B (e) (ii) of the Act. By a Regd. notice dated 21st May, 1969 the Drug Inspector informed the respondent that the sample recovered from the respondent-shop, was not of a standard quality as reported by the Govt. Analyst, Central Drugs Laboratory, Calcutta and required the respondent to show cause why action should not be taken against him. The respondent was also required to disclose the name or address of the person from whom the respondent had purchased the above said Chloramphenicol capsules. No reply appears to have been received and accordingly the respondent was prosecuted.
(2.)THE respondent pleaded not guilty. He admitted that samples of Chloramphenicol capsules were taken from his possession, but he denied that those samples were of sub-standard. His defence was that they were of standard medicoms. His defence further was that the Drug Inspector wanted bribe from him, but since he did not oblige the Drug Inspector, the latter got the samples changed. The respondent offered the sample in his presence for re-analysis. The prosecution examined three witnesses viz. G.R. Jain (P. W. 1), Sulaiman Khan (P. W. 2) and Chandra Bhushan Awasthi (P. W. 3) in support of its story. The respondent produced one Mewalal (D. W. 1) in his defence. The court below after considering the entire evidence on record came to the conclusion that the charge against the respondent was not brought home and accordingly the respondent was acquitted.
The State has now come up in appeal. It is contended that the order of the court below acquitting the respondent is not warranted by the testimony on record. On the other hand, it is perverse and should be set aside. I have heard the learned counsel for the respondent as also the learned counsel appearing on behalf of the State at length and after going through the record. I have come to the conclusion that the order of acquittal passed against the respondent cannot be allowed to stand. A preliminary objection was raised on behalf of the respondent that the complaint in the instant case was filed by the Drug Inspector, but the permission to file the appeal was obtained by the State of Uttar Pradesh, which is against the mandatory provisions of Section 417 Cr. p. C. This objection has no fovce. Section 417 Cr. P. C. reads as under :-

"Appeal in case of Acquittal.- Subject to the provisions of subsection (5), the State Govt. may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (xxxv of 1946), the Central Govt. may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) No application under subsection (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. (5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)."

(3.)THE above Section has been interpreted by the Allahabad High Court in the case between the State of Uttar Pradesh and Balwant Singh Birdhi reported in 1966 ALJ p. 159, in which it has been held that both the State as well as the complainant had a right to obtain the leave of this Court to file an appeal and the right to file an appeal by the State is lost only when the complainant has applied for Leave to Appeal under Section 417(3) Cr. P. C. and it had been refused. When the Leave to the complainant has not been refused under Section 417 (3) Cr. P. C. the right of the State to file the appeal subsists. Chandra Bhushan Awasthi (P.W. 3) has narrated how he inspected the shop of the respondent on 3.4.1569 at about 2 P.M. and recovered the 24 capsules of Chloramphenicol from the almirah of the respondent-shop. He has also stated how he scaled those samples into four bundles including one bundle containing the phial after saying the price of Rs. 4.00 to the respondent. His testimony is supported by the documents Exs. Ka-2, Ka/3. Ka/3 (a) and Ka/4. The respondent never challenged the recovery of samples from his possession. On the other hand, in his statement under section 342, Cr. P. C. he admitted the recovery in unqualified terms. The court below has commented upon a number of infirmities in the search carried out by the Drug Inspector Chandra Bhushan Awasthi (P. W. 3). The court below points out that the Drug Inspector never subjected himself to any search by the witnesses as well as by the respondent as required by law. The court below has further remarked that the witnesses taken by the Drug Inspector for witnessing the search belonged to different localities and were strangers to the scene of the incident. He has further commented that the witnesses and the Drug Inspector did not take each other's search. On behalf of the State it was pointed out that the Drug Inspector had gone to make an inspection and not to conduct a search. There is a difference between an inspection and a search. For purposes of this case I have assumed that there is no difference between an inspection and the search. The above infirmities could have created doubt on search carried out by the Drug Inspector provided the appellant had denied the recovery of the samples from his possession. As already noted above, in the instant case I find that the respondent admitted the recovery of Chloramphenicol capsules from his shop and in view of the admission, the infirmities pointed out by the court below are of no consequence.