PLJ 2012 Cr.C. (Quetta)
546 (DB)
Present: Naeem Akhtar Afghan and Jamal
Khan Mandokhail, JJ.
MUHAMMAD JAMIL
and another--Petitioners
versus
STATE through
Provincial Drug Inspector, Quetta--Respondent
Crl. Quashment Petition No. 3 of 2008, decided on 15.11.2011.
Drugs Act, 1976
(XXXI of 1976)--
----S.
22(2)--Violation of Mandatory provision of law Section 22(2)--Delayed test
report--According to Section 22(2) of the Drugs Act, 1976 the Government
Analyst, as far as may be, shall submit the report to whom a sample of any drug
has been submitted for test and analysis, within sixty days of the receipt by
him of the sample of the drug and, if he is not able to do so for reasons
beyond his control he shall communicate the reasons to the Inspector in writing
and shell endorse its copy to the Central Licensing Board or to the
Registration Board or to the Provincial Quality Control Board, who shall have
the sample tested from any other Government Analyst or a Government Drug Testing
Laboratory or any other Laboratory--In the instant case admittedly the report
has been submitted after nine months and four days in violation of Section
22(2) of the Drugs Act, 1976 and no reason has been communicated to the Drugs
Inspector in writing by the Government Analyst, nor any such reason has been
endorsed to the Provincial Quality Control Board--Since, mandatory provision of
law i.e. Section 22(2) of the Drugs Act, 1976 has been violated and on the
basis of such delayed test report no conviction can be awarded. [Pp. 549 & 550] A
Maxim--
----According to
Maxim "A communi observantia
non est
recedendum" i.e. "where a thing is provided
to be done in a particular manner it has to be done in that manner and if not
so done, same would not be lawful". [P.
549] B
1985
P.Cr.L.J. 2064 & PLD 1998 Karachi 268, ref.
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 561-A,
265(K) & 249(A)--Criminal quashment--Even then
there was no probability of the conviction of the petitioners/accused in the
circumstances mentioned hereinabove. The provisions of Section 249-A Cr.P.C., 265-K, Cr.P.C are
co-extensive with similar powers of this Court u/S. 561-A, Cr.P.C
and nothing is deemed to prevent a Court from acquitting an accused at any
stage of the case, if after hearing the prosecutor and the accused and for the
reasons to be recorded, it considers that there is no probability of the
accused being convicted of any offence--Petition was accepted--Order impugned
passed by Chairman Drug Court, was set aside. [P.
550] C & D
M/s. Munir Ahmed Bhatti & Mr. Nadeem Ahmed Khan, Advocates for
Petitioners.
Mr. Atiq Ahmed Khan, Addl. P.G. for State.
Date of hearing:
11.10.2011.
Judgment
Naeem Akhtar Afghan, J.--This judgment shall dispose of Criminal Quashment No. 3 of 2008 filed by the petitioner against the
order dated 6th May 2008, passed by Chairman Drug Court, Balochistan,
Quetta, whereby application filed, by the petitioner/accused under Section
249-A read with Section 265-K, Cr.P.C. has been
rejected.
2. Facts of the prosecution case are that as per
complaint dated 14th July 2004 Drug Inspector visited M/S. Labco
Trading Corporation, Natha Singh Street, Quetta and
from proprietor Muhammad Shamim Khan, capsule Renuvit Bearing Batch No. 03E04 allegedly supplied vide
Invoice No. 70290 dated 8th June 2004 by M/s. Chas-A Mendoza was taken into
possession. Subsequently on the request of Drug Inspector, the Company supplied
method of test and analysis to Karachi Central Drug Laboratory and on 18th April 2005 Central
Drug Laboratory Karachi declared the drug as misbranded and substandard and
subsequently the Board granted sanction for the prosecution.
3. At the trial before Drug Court, Balochistan, Quetta, the petitioners/accused submitted an
application under Section 265-K, Cr.P.C., which was
rejected vide order impugned by the Chairman Drug Court, where after, the
petitioners/accused approached this Court through instant petition under
Section 561-A, Cr.P.C. seeking quashment
of the complaint/proceedings pending before Drugs Court, Balochistan,
Quetta.
4. Mr. Munir Ahmed Bhatti, Advocate, learned counsel for the petitioners/
accused assisted by Mr. Nadeem Ahmed Khan, Advocate
argued that without prosecuting the Company an employee cannot be prosecuted,
the report of analysis was not submitted within sixty days and Section 22(2) of
Drugs Act, 1976 has been violated, samples have not been drawn according to the
prescribed procedure, the protocol of the test applied has not been mentioned
in the report, the Court was not properly constituted, as only Chairman has
rejected the application without the two Members and the order impugned is a
non speaking order. Learned counsel emphatically argued that there is no
probability of the conviction of the petitioners/ accused and further proceeding
with the trial will be an exercise in futility.
5. On the other hand Mr. Atiq
Ahmed Khan, learned Additional Prosecutor General
contested the petition on the grounds that the points raised by the counsel for
the petitioners/ accused require appreciation of evidence, which is yet to be
recorded at the trial. It was further argued that the petition is pre-mature
and the trial Court has rightly rejected the application.
6. After hearing arguments of the learned
counsel for the parties, we have carefully perused the record of the case.
Record reflects that the Company M/s. Chas-A Mendoza has not been prosecuted through its
Directors/partners and only two employees of the Company i.e. Quality Control Incharge and Warrantor have been prosecuted. Without prosecuting
the company the employees of a company cannot be held liable for any offence
under the Drugs Act, 1976 with regard to a drug manufactured by the Company. In
this regard reliance is placed on the case of Qasim
Shah v. The State, PLD 1991 S.C. 893, wherein it has
been held as follows:--
"A perusal
of the two Sections would show that the opening words and effect of the first
part of two Sections is the same. The only difference between the two Sections
is that under the old Section 38 the burden to prove the existence of knowledge
or consent on the part of the directors or employees of the company was on the
prosecution but under Section 34 of the new Act, if the company is found guilty
of the offence then the burden is on the directors or the employees of the
company. Therefore, a finding that the company is guilty of the offence is sine
qua non to convict the directors or employees of the company that they are
guilty of the offence. But, if the company is not before the Court then no
adverse finding can be given against the company. In such a situation the
directors or employees could not be held vicariously liable. Therefore,
non-prosecution of the company itself was fatal."
7. Further, the sample of the drug, drawn
according to the procedure provided under Section 19 of the Drugs Act, 1976,
was received by the Central Drugs Laboratory Karachi on 21st July 2004 and on
18th April 2005 the Central Drugs Laboratory Karachi issued certificate of test
/ analysis stating therein that the Vitamin-C content was determined as 77.48
mg per capsule instead of the stated amount of 450.0 mg and according to the
manufacturer limit it should not be less than 85%, but same was found to be
51.65% and further it was remarked that the label does not bear the reference
of the specifications, the address of the principal place of business of the
manufacturer and variation in batch number and outer label is misleading and it
was reported that the drug is substandard and misbranded.
8. According to Section 22(2) of the Drugs Act,
1976 the Government Analyst, as far as may be, shall submit the report to whom
a sample of any drug has been submitted for test and analysis, within sixty
days of the receipt by him of the sample of the drug and, if he is not able to
do so for reasons beyond his control he shall communicate the reasons to the
Inspector in writing and shell endorse its copy to the Central Licensing Board
or to the Registration Board or to the Provincial Quality Control Board, who
shall have the sample tested from any other Government Analyst or a Government
Drug Testing Laboratory or any other Laboratory. In the instant case admittedly
the report has been submitted after nine months and four days in violation of
Section 22(2) of the Drugs Act, 1976 and no reason has been communicated to the
Drugs Inspector in writing by the Government Analyst, nor any
such reason has been endorsed to the Provincial Quality Control Board.
According to
Maxim "A communi observantia
non est
recedendum" i.e. "where a thing is provided
to be done in a particular manner it has to be done in that manner and if not
so done, same would not be lawful". Since, mandatory provision of law i.e.
Section 22(2) of the Drugs Act, 1976 has been violated and on the basis of such
delayed test report no conviction can be awarded. Reference in this regard is
made to the case of W. Woodwards (Pakistan) Ltd.
V. State, 1985 P.Cr.LJ. 2064 and the case of Faqih Alam v. State, PLD 1998 Karachi 268.
9. It has further been observed that in the
certificate of test/analysis dated 18th April 2005 issued by Central Drugs Laboratory
Karachi, no protocol of the test applied has been mentioned. It is a mandatory
requirement that the report of analyst should be conclusive and must disclose
the tests applied under Rule 16 of the Drugs (Federal Inspectors, Federal Drug
Laboratory, Federal Government Analysts) Rules, 1976.
The provisions with regard to the disclosure of full protocols of the test
applied have to be strictly construed in view of the fact that the report of
Drug Testing Laboratory being conclusive entails serious consequences affecting
substantial rights of a person. Reference in this regard is made to the case of
Nawab Sons Laboratories (Pvt.) Ltd. v. Government of
Punjab, PLD 2003 Lahore
115.
10. It has further been observed that the Drugs
Court Balochistan at the time of passing the order
impugned was not properly constituted. Under Section 31(2) of the Drugs Act,
1976, a Drug Court
shall consist of a Chairman and two Members, who in the opinion of the Federal
Government are Experts in the Medical or Pharmaceutical fields. It has been
provided that for deciding applications of bail etc. the Chairman and any one
Member shall constitute full Quorum of a Drug Court. In the instant case the
impugned order has been passed/signed by the Chairman and not by any other
Member of the Drugs Court, meaning thereby that the Quorum was not complete and
the learned Chairman Drugs Court Balochistan, Quetta
singly passed the order impugned without any lawful authority due to lack of
the quorum.
11. Careful perusal of the order impugned reveals
that same is a non speaking order and the grounds agitated by the
petitioners/accused in their application under Section 249-A read with Section
265-K, Cr.P.C. have not been attended/ discussed, nor
the Chairman of the Drugs Court, Balochistan, Quetta
has considered the above referred provisions of the Drugs Act, 1976 and the
Rules framed there under.
12. In view of what has been discussed above, we
are of the view that if trial is proceeded further and
evidence is recorded, even then there is no probability of the conviction of
the petitioners/accused in the circumstances mentioned hereinabove. The
provisions of Section 249-A Cr.P.C., 265-K Cr.P.C. are co-extensive with similar powers of this Court
under Section 561-A, Cr.P.C. and nothing is deemed to
prevent a Court from acquitting an accused at any stage of the case, if after
hearing the prosecutor and the accused and for the reasons to be recorded, it
considers that there is no probability of the accused being convicted of any
offence.
For the above
reasons, the petition is accepted. The order impugned dated 6th May 2008,
passed by Chairman Drug Court, Balochistan, Quetta,
is set aside and the proceedings pending before the Drug Court, Balochistan, Quetta in Complaint No. 5 of 2007 against the
petitioners/ accused are quashed and the petitioners/ accused Muhammad Jamil, Quality Control Incharge,
M/s. Chas-A Mendoza and Nazar Muhammad, Warrantor
M/s. Chas-A Mendoza, stand acquitted under Section 23(i)(a)(iv)(v)
of Drugs Act, 1976 punishable under Section 27(4)(6) of Drugs Act, 1976.
(A.S.) Petition
accepted
