P L D 1957 (W (PLP)

The respondent Abdul Ghafoor admitted that his appli cation for fresh licence was rejected in 1953 and that he was keeping these 'drugs for administering them to his patients not free of charge. The respondent Anwar Saeed was informed that he was dealing in drugs in contravention of the requirements of section 18 (c) of the Act and that necessary action would be taken against him if he failed to obtain any licence. He denied having sold any drugs. The learned Magistrate framed three points for deter mination. On the first point he held that all the respon dents were found in possession of the drugs. We consider that this finding was justified on the evidence of the Drugs Inspector and mashir and the seizure of the drugs corrobo rated by the mentioned (sic) on the c9unterfoils of the receipts passed by the Respondents. On the second and third points his finding was that it was doubtful. These points run as under :- (2) Whether being unregistered medical practitioner, accused was required to hold a licence for dealing in drugs? (.3) Whether accused was, stocking or exhibiting for sale the drugs secured from his possession? The finding on the second point was based on the fact that the term was not defined under the Act. Section 11 (1) of the Sind Act XIX of 1944 provides - "The expression "legally qualified medical practitioner" or "duly qualified medical practitioner," or any words impor ting a person recognised by law as a medical practitioner or member of the medical profession, shall in all (Sind) Acts and in all Central Acts applicable to the Province . mean a medical practitioner registered . . . . . . under this Act." Rule 123 of the Drug Rules framed under the Act provides that the drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and the rules made therein to the extent and subject to the conditions specified in that schedule. Schedule K (5) runs as under :- "Drugs supplied by a registered medical practitioner to his own patient, or any drug specified in Schedule C supplied by a registered medical practitioner at the request of another such practitioner if it is specially prepared with reference :o the condition and for the use of an individual patient avoided the registered medical practitioner is not (a) keeping an open shop or (6) selling across the counter or (c) engaged in the importation, manufacture, distribution or sale of drugs in British India to a degree which renders him liable to the provisions of Chapter IV of the Act and the rules there under and drugs supplied by a hospital or dispen sary maintained or supported by Government or a local body or by charity or voluntary subscription." It was contended that the rules were framed by the Sind Government in 1945. But Chapter IV which includes section 18 of the Act and the rules came into force from 1st April 1947. We see no force in this contention as rule 1 (3) provides that they shall come into force on such date as the Provincial Government may by notification in the Official Gazette appoint which was notified as Ist April 1947. The rules were framed after consultation with the Board and previous publication in the Gazette. The respondents stated that they were not registered medical practitioners. They did A not claim exemption tinder the above rule. This point cannot be raised in arguments in appeal. Besides we consider that the words or any words importing a person recognised by law as a medical practitioner or member of the medical profession shall in all Sind Acts and in all Central Acts applicable to the Province . , . . . ., mean a medical practitioner registered . . . . under this Act", means a registered medical practitioner registered under the Sind Medical Council Act. None of the respondents was a registered medical practitioner under that Act. On the third point the finding was that the prosecution had failed to discharge the burden as mere possession of the drugs does not amount to stock or exhibit for sale. But he failed to consider that the respondents Muhammad Moosa and Abdul Ghafoor continued to store the drugs in their shops after their applications for renewal of licences was rejected. Anwar Saeed had been informed that he was dealing in drugs which required licence. If the drugs were kept for own use as contended by Muhammad Moosa, they could be kept in the house and not at the shops of these respondents on a public, road in large quantities. In these circumstances, the presump tion is that these drugs were kept in the chance for the respondents or in the evidence that these drugs were kept in their shops not for the purpose of sale but for any other purpose. If these were not meant for sale, they should not have been kept in their shops at all. They had full knowledge what the case of the prosecution against them was and in view of this fact they could have produced evidence in rebuttal of it. All the respondents were Hakims. 137 drugs were found from Muhammad Moosa, 301 from Abdul Ghafoor, 148 from Anwar Saeed, 141 from Abdul Aziz and 143 from Ziaul Haque. They therefore stocked them for distributing them amongst their patients as well in contravention of the section. It is argued that the appellants dispended drugs to their patients in their dispensaries: In the first place, this version was not put to any witness. In the second place the word "distribute" includes dispensing which was only exemp ted to the extent and subject to the conditions specified in Schedule K. We consider that the act of the respondents in dispensing drugs to their patients contravenes section 18 (c) of the Act which prohibited stocking or exhibiting for sale. In Proprietary Articles Trade Association v. Attorney General of Canada (1), their Lordships of the Privy Council held that men s rea is not an essential ingredient in an offence which is prohibited by the State in the public interest under a penalty. The true test is to look at the object of the Act that is under consideration, to see how far knowledge is of the essence of the offence created. In arriving at this decision it has been held material to enquire (A I R 1931 P C 94) whether the object of the Act would be frustrated, if proof of such knowledge was necessary (2) whether there is anything in the wording of the particular section which applies knowledge (3) whether there) is anything in other sections showing that knowledge is an element in the offence. In this case the object of the Drugs Act would be frustrated if proof of such knowledge was necessary and there is nothing in the Act or rules to show that knowledge was necessary. The orders are therefore manifestly wrong. We accordingly reverse the orders of acquittal and convict each of the accused under section 18-C read with section 27 of the Act. Having regard to the articles seized from them which are confiscated and the fact that the Drugs Inspector stated before us that besides the respondents only three cases had been filed in the former Province of Sind, we sentence each of the accused as under :- Muhammad Moosa-Fine of Rs. 200 or in default of payment of fine R. I. for one month. Ziaul Haque-Fine of Rs. 200 or in default of payment of fine R. I. for one month. Anwar Saeed-Fine of Rs. 400 or in default of payment of fine R. I. for two months. Abdul AZiz-Fine of Rs. 200 or in default of payment of fine R. I. for one month. Abdul Ghafur-Fine of Rs. 400 or in default of payment of fine R. I. for two months. At the request of the respondents time is granted to them to pay the fine within four days on their execution of personal `bonds in the sum of Rs.1,000 each. A. H. Respondents convicted.