APPEAL from the Circuit Court of DuPage County; the Hon. JACK
PARISH, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Coagan, was charged with knowingly and unlawfully selling to one Bobby Hall a quantity of amobarbital and secobarbital on May 11, 1970, otherwise than as authorized in the Drug Abuse Control Act and in violation of section 802(b) thereof (Ill. Rev. Stat. 1969, ch. 111 1/2, par. 802.) The defendant filed a motion to dismiss the complaint on the grounds that the complaint did not charge an offense under that statute. The trial judge granted the motion to dismiss the complaint, and this appeal by the State followed.
The motion to dismiss the complaint, and a memorandum of law in support thereof, in essence alleged that the defendant was a licensed apprentice pharmacist and employed by a drug store in Hinsdale, Illinois, and stated that the sole issue involved relates to the necessity of a pharmacy having a prescription in order to regularly dispense depressant or stimulant drugs under the Act. (Ill. Rev. Stat. 1969, ch. 111 1/2, par. 802.) The motion further alleged, after reciting the provisions of various paragraphs of that statute, that there is no requirement that a pharmacy receive a prescription prior to the time there is a dispensing of any stimulant or depressant drug.
The court filed a written memorandum when it dismissed the charges filed against the defendant, and said that it had read the motion and the statutes, heard the arguments and checked out section 417 of the Public Health Statute and section 22-18 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-18), wherein the legislature had said in plain language that certain drugs could only be sold upon written prescription and had concluded that "there is not present in the new Drug Abuse Control Act unequivocal, plain and direct language which compels a depressant or stimulant drug as defined in the definitions to be dispensed by a Pharmacy pursuant to a written prescription * * * that if the legislature meant for a Pharmacy to secure a prescription before there was any dispensing of a depressant or stimulant drug, it could have said so with the same ease that it said so in Chapter 38, Section 22-18 and Chapter 111 1/2, Section 417." We note that section 417, referred to by the court, had been repealed and was not in effect at the time of the offense. That section was replaced by section 516 (Ill. Rev. Stat. 1969, ch. 56 1/2, par. 516), which states that certain drugs be dispensed only upon prescription.
The pertinent statutory provisions of the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111 1/2, pars. 801 through 812) are as follows:
"802. Prohibited acts. § 2. The following acts and the causing thereof are prohibited:
(b) The sale, delivery, administering, inducing another person to use or other disposition of a drug in violation of Section 7(b).
807. * * * (a) No person shall manufacture, compound or process in this State any depressant or stimulant drug, except that this prohibition does not apply to the following persons whose activities in connection with any drug are solely as specified in this subsection:
(7) Pharmacists dispensing depressant or stimulant drugs pursuant to a prescription, order or other direction of a practitioner licensed by law in this State to administer depressant or stimulant drugs. This exception does not apply if the prescription, order or other direction is known by the pharmacist to be fraudulent.
(9) An employee or agent of any person described in paragraph (1) through paragraph (7) of this subsection and a nurse or other medical technician under the supervision of a practitioner licensed by law in this State to administer depressant or stimulant drugs, while such employee, nurse or medical technician is acting in the course of his employment or occupation and not on his own account.
(b) No person other than:
(1) A person described in subsection (a) while such person is acting in the ordinary or authorized course of his business, profession, occupation or employment, * * *" Emphasis added.
While the provisions of the Drug Abuse Control Act are somewhat complicated, by referring from one section to another, ...