In short, the purpose of the provision here in question was to close an earlier loophole in the enforcement provisions of the act, which handicapped its enforcement, this handicap being caused by the refusal of certain carriers, if not others, to permit the copying of essential records. In other words, where, as was generally the case, these records were willingly made available to the Government, so that the Act could readily be enforced, the previous law was effective. But, in cases where this access and copying was refused, the section in question would apply to overcome such refusal, and eliminate such 'handicap to its (the Act's) enforcement.'
The purpose of the statutory provision was thus to cover cases where the Government was refused access and copying of records. Not only is this clear from a consideration of the Congressional purpose, but the language of the section itself expresses such purpose. That is why the section states that carriers and persons receiving drugs 'shall' permit a governmental officer 'to have access to and to copy all records showing the movement in interstate commerce' and the 'holding thereof * * * after such movement'. That is why the section in question further provides that, if the Government officer not only requests such permission, but accompanies it with a written specification of the drug requested, 'it shall be unlawful for any such carrier or person to fail to permit such access to and copying * * *.' In short, if the person holding the drug and the records refuses access and copying, the statute makes it mandatory upon him to accede, and if he fails to accede after being served such a statement in writing, he is subject to a specific penalty. Title 21 U.S.C.A., Food and Drugs, § 331(e).
Considered, therefore, in the light of both the purpose of this statutory amendment and of its terms, it is clear that it is not intended to hamper the powers of the Government in protecting the public, but to add to its powers to that end. Thus since, under well settled principles, those who voluntarily turn over their records to the Government cannot object to their use in criminal proceedings, it can hardly be claimed that this statutory amendment was intended to prevent such use under such circumstances. On the other hand, it is clear both from the purpose of the amendment and its terms, that the section was intended to apply where access to the records was refused the Government. In that event, by proceeding under the statutory provision in question, the Government could obtain access to such records despite such refusal. But, if the Government did so proceed, then the 'evidence obtained under this section shall not be used in a criminal prosecution of the person from whom obtained.'
Not only does the above seem clear on reason, but it has the support of authority. In U.S. v. Crescent-Kelvan Co., 3 Cir., 1948, 164 F.2d 582, 586, the Court specifically held that interstate shipping records were lawfully taken by the Government agents. Although the opinion in the main discussed a taking of samples under Section 374, that it was also concerned with section 373 in question here, is apparent from its allusion thereto in footnote 4. This upholding of the taking in Crescent-Kelvan was based upon the fact that 'permission to make such an inspection was implicitly granted to them by the individual defendants then present who had the right to bind the 'trust", the other defendant. Again, the section in question has been held to afford the Government a 'cumulative procedure * * * without restricting other avenues of information.' U.S. v. 75 Cases, etc., 4 Cir., 1944, 146 F.2d 124, 127. In short, both these cases clearly recognize the fact that a lawful taking in such situations as the present may occur not only in cases of refusal, when the specific statutory requirements are met, but also in cases of permission, when general constitutional requirements are met. Indeed, the Pure Food and Drug Act itself apparently refers to this common law method of obtaining evidence as being in addition to that set forth in Section 373, since another section, Title 21 U.S.C.A., Food and Drugs, § 372(a), authorizes the Government 'to conduct examinations and investigations for the purposes of this chapter' generally.
Since the evidence here was voluntarily turned over to the Government by its owners, the conditions for the applicability of the statutory provision in question did not exist, and the statute does not apply. And since the evidence was not obtained unconstitutionally, defendants' motion for the suppression, impounding and return of the evidence, is denied.