Full Judgment Text & Judicial Ruling

Court Name: Drug Court Judge(s): Abdul Hameed, Z. A. Channa, Fazal Ellahi Title: THE STATE vs MESSRS CHAS A. MENDOZA Accused Case No.: Case No, 1 of 1976 Date of Judgment:1977-09-17 Reported As: 1978 P Cr. L J 134 Result: Order accordingly

JUDGMENT

JUDGMENT ' Z. A. CHANNA (CHAIRMAN).-The three accused, who are all Directors of M/s. Chas A. Mendoza (hereinafter referred to as the Company), have been tried in respect of offences punishable under sub-clause (vi) of clause (a) and clause (c) of subsection (1) of section 23 of the Drugs Ordinance, 1976 (hereinafter referred to as the Ordinance), read with clause (b) of subsection (1) and subsection (4) of section 27 and section 34 of the Ordinance. 2. The prosecution case shortly stated is that the Company is engaged in the manufacture of drugs and pharmaceutical products. Its main factory premises are located at 6-B, Block No, 10, Federal "B' Area. Opposite these premises, and situated on the same road, is house No, 104-B, Federal 'B' Area, which also is owned by the Company. It is alleged that certain processes for the manufacture of drugs are also carried on in this house though only the main premises of the Company at 96-B are licensed for such manufacture. 3. On the 22nd of April, 1976, a blast took place at the premises of the Company located at 104-B, in consequence of which seven girls and one male worker, who were working in the room in which the blast occurred, sustained severe burns, of which the male worker, whose name was Jamil, subsequently died. The Provincial Government appointed a Committee of three doctors, headed by the Civil Surgeon, Karachi, to hold an enquiry into the matter. The Enquiry Committee on 3-5-1976 visited the premises where the blast had occurred, made enquiries from the injured girls at the Abbasi Shaheed Hospital, where they had been admitted, and submitted its report to the Government on 4-5-1976. Its findings were- (a) that the Company was manufacturing a drug, namely Euginol Compound, in a place which was not licensed for manufacture of any drug :

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(b) that the room where the said manufacture was being carried out and the blast had occurred was a small one, having no fire escape or fire extinguisher ; and (c) that the Company was unable to show documents authorising it to manufacture Euginol Compound. 4. In consequence of the above report and the inquiries made by the Drug Inspector, Abdul Jabbar Kazi, the latter filed a complaint in this Court against the three accused after obtaining the approval of the Provincial Quality Control Board. 5. In support of the charges against the accused, the Prosecution have examined the Drug Inspector, the three members of the Enquiry Committees three of the girls who were injured in the blast, an Assistant in the Provincial Health Department (who has produced certain documents) and the Assistant Supervisor in the Tablet Section of the Company who is also the General Secretary of the Employees' Union in the Company. 6. Accused Khalil Ahmed, in his statement to Court under section 342, Cr. P. C., has denied that any manufacturing process was being carried on or Euginol Compound was being manufactured at the premises at No, 104-B, Federal 'B' Area, but has admitted that the said premises are not licensed for the manufacture of any drug. His explanation for the blast in those premises is that while a carboy containing Euginol Compound was being carried into the said premises, it got broken. He has given the following reasons why the P. Ws. Have falsely deposed against him:- "The first reason is that the witnesses, who were injured, wanted to get treatment in London. Although I had explained to them that in case it was not possible for them to have proper treatment at Karachi, then alone they would be sent to London, but they were insisting that any how they should be sent to London for treatment, which I declined to do. The second reason why the witnesses are deposing against me is that the injured witnesses wanted extraordinary damages which also I was not prepared to give though I was prepared to give them reasonable damages. The third reason is that the three girl witnesses, Tahira Nisar, Farzana and Zubeda, were the office-bearers of a rival Union, and I had terminated the services of the General Secretary of that Union and that case is still in the Court. The three girls demanded that I should recall the General Secretary, Wali Mohammad, which I declined to do. In fact he has been exploiting these witnesses." 7. The other two accused, while admitting that a blast had occurred at their premises at 104-13, have taken the plea that they have no knowledge wether the said premises are licensed or any manufacturing process was being carried out there as they work in the Head Office and have no concern with the factory. 8. In their defence, the accused have examined Miss Nishat Ara, who was the packing supervisor in the Company at the time of the incident, and Miss Mahmooda Raza, one of the girls who was injured in the explosion. 9. The points which arise for determination are : (1) Whether the Company was authorised under the Ordinance to manufacture Euginol Compound ? (2) Whether the premises at 104-B, Federal 'B' Area, are licensed for the manufacture or re-packing of any drug ? (3) Whether the aforesaid premises were used for the manufacture or repacking of Euginol Compound ? (4) Whether the accused Nos. 2 and 3 are liable for the activities at 104-B, Federal 'B' Area, by reason of the provisions of section 34 of the Ordinance ? 10. I n regard to the point whether the Company is authorised to manufacture Euginol Compound, the defence have produced through Drug Inspector, Abdul Jabbar Kazi, a true copy of a licence, bearing No, 227/6.), showing that the Company is licensed to manufacture Euginol Compound, the

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components whereof and their percentage have been stated in the licence. The authenticity of this licence has not been disputed nor is there any evidence to indicate that the said licence has expired, or been cancelled or suspended. As such, the charge for manufacturing the said compound without a licence fails. 11. There is also no dispute on the point that the premises at No, 104-B, Federal '13' Area , are not licensed for carrying on any manufacturing process in respect of a drug. Not only the Drug Inspector has categorically stated-that the said premises were not so licensed but the applications, dated 29-3-1974-and 18-11-1975, made by the Managing Director of the Company to the Provincial Health Department requesting that the said premises be authorised to carry out some of their manufacturing processes, due to their increased activities, together with the statement of P.W. Mohammad Sulaiman, an Assistant in the Provincial Health Department, that no action was taken on these letters, clearly indicate that the said premises were not so authorised. Finally, accused Khalil Ahmed has admitted that the said premises were not so licensed. 12. Before taking up the question whether any manufacturing process was carried on by the Company at the premises at No, 104-B, Federal 'B' Area, we would like to consider the submission of Mr. Mohammad Hayat Junejo as to the competency of this Court to take cognizance of the complaint against the accused. The learned counsel submitted that as provided by section 30 of the said Ordinance, no prosecution shall be instituted under Chapter IV of the Ordinance, and the prosecution of the accused is under that Chapter, except by a Provincial Inspector, or in certain cases by a Federal Inspector. The learned counsel next invited our attention to section 17 of the Act which provides that the Provincial as well as Federal Inspectors, who shall be persons having the prescribed qualifications, shall be appointed by notification in the official Gazette. He contended that neither at the time when the offence was allegedly committed by the accused or even when the complaint against the accused was filed before this Court on 23-6-1976, there was any notification in the official Gazette appointing Mr. Kazi as an Inspector under the said Ordinance. According to him the notification appointing Mr. Kazi as Inspector under the Ordinance was for the first time issued on 13-1-1977 and was published on 24-2-1977. He accordingly contended that the proceedings taken by this Court on the complaint of Mr. Kazi against the accused are without jurisdiction. We find no substance in this submission. The learned Special Prosecutor has produced before us a cyclostyled copy of a notification, dated 15-5-1976, issued by the Provincial Health Department, appointing Mr. Kazi as an Inspector under the said Ordinance. This notification was published in the official Gazette of 1st July 1976, at p. 300. It is true that the publication of this notification was after the date borne on the complaint, As, but we would like to point out that we passed orders on the complaint and took cognizance of the allegations against the accused on 3-9-1976, long after the publication of the notification in the official Gazette. The cognizance the complaint against the accused is thus not in contravention of law. 13. We next proceed to consider whether the accused manufactured 'Euginol Compound or carried on any manufacturing process in respect of it in the premises at No, 104-B. Before examining the evidence on this point, we may refer to the definition of the word 'manufacture' as contained in the said .Ordinance. Section 2 (o) of the Ordinance defines 'manufacture' thus : " 'manufacture', in relation to a drug, means all operations involved in the production of a drug, including processing, compounding, formulating, filling, packing, re-packing, ornamenting, finishing and labelling with a view to its storage, sale and distribution, but does not include the compounding and dispensing or the packing of a drug in the ordinary course of retail business or on a prescription of a registered medical practitioner or dentist or of a veterinarian and 'to manufacture' shall be construed accordingly'."

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14. It will thus be seen that the connotation of the word 'manufacture', in relation to manufacture of drug, is of very wide amplitude and embraces every process of manufacture. 15. The prosecution have led three separate pieces of evidence to establish the charge that Euginol Compound was being manufactured in the Company's premises at No, 104-B. The most important evidence on this point is the direct testimony of the three injured girls, Tahira Nisar, Zubeda Mohammad Ali and Farzana Iqbal. They have all testified that at the aforesaid premises they alongwith four other girls and two men, including deceased Jamil, were packing Euginol Compound from a large carboy into smaller bottles when suddenly a carboy containing the compound burst and the explosion was almost immediately followed by a fire, which engulfed the entire room and made escape through the only door in room impossible, with the result that they had to be rescued through the window, the girl whereof was removed. They have further deposed that all of them had received severe burns and therefore were removed to Abbasi Shaheed Hospital where they remained under treatment for some months. P. W. Tahira Nisar has further deposed that previously also packing used to be carried out in the room where the blast had occurred and the procedure was that big jars of medicine used to be brought into this room and with the help of a hand machine which was kept in that room the medicines used to be packed or filled into smaller bottles or cartons. P. W. Zubeda Mohammad Ali has supported her on this point and stated that medicines used to be brought in bulk in the aforesaid premises and packed there. 16. The evidence of the eye-witnesses was sought to be assailed on several grounds. The first ground of attack was that they were employed in different sections and not in the premises at No, 104-B and that they had been called at the said premises after the explosion in order to mop up the spilt Euginol Compound and hence their story about the packing of Euginol Compound or any other drug at the said premises was a pure fabrication and could not be relied upon. We find no substance in this contention. Tahira Nisar has stated that she was employed in the O.T.C. (Tablet Section) which was located in the premises at No, 104-B and on the day of the incident she and the other girls were asked to pack Euginol Compound from a large carboy into smaller bottles. The evidence of P.Ws. Zubeda Mohammad Ali and Farzana Iqbal, who were employed in the Tablet and Labelling Sections respectively, is similar. 17. It was next contended that the three witnesses have made contradictory statements and hence their evidence lacks conviction and cannot be relied upon. No doubt the witnesses have contradicted each other on certain points but these contradictions are of minor nature and do not affect the essential parts of their testimony. The main contradiction is with regard to the number of jars containing Euginol Compound in the premises at No, 104-B. While P. W. Farzana Iqbal has positively asserted that there was only one carboy containing the compound and it was this carboy which got broken, and she is supported on this point by P.W. Tahira Nisar, P.W. Zubeda Mohammad Ali has stated that there was a second carboy containing Euginol Compound and it was this jar which had got broken, resulting in the explosion. We consider that this contradiction is not such as to affect the evidence of the P.Ws. Against the accused or justify the treating of their evidence with suspicion. 18. The main argument on this point of Mr. Mohammad Hayat Junejo was that there are two versions of the incident, one given by the above three witnesses, and the other given by P.W. Nazir Ahmed Khan and D. Ws. Nishat Ara and Mahmooda Raza to the effect that deceased Mohammad Jamil was taking the jar containing Euginol Compound into the premises at No, 104-B, merely for the purpose of storing it, and while doing so he dropped the jar and broke it and hence the girls were called from different Sections to mop up the compound which was spreading on the floor, and that even if it is considered that there is a reasonable possibility of the second version being true the accused are entitled to an acquittal. We have carefully examined the second version but find no substance in it. So far as P.W. Nazir Ahmed Khan is concerned he has admitted that he was

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in the main factory when the blast occurred. His evidence as to how the blast occurred and whether Euginol Compound was being packed into smaller bottles at the premises at No, 104-B is hearsay. His evidence is to the effect that it was P.W. Tahira Nisar who informed them, when they went to the premises after the blast, that she and the other girls had been called after the blast to mop up the Euginol Compound. P.W. Tahira Nisar was asked no question whether she made such a statement to this or any other witness. On the contrary she has strongly supported the other version. 19. So far as D.Ws. Nishat Ara and Mahmooda Raza are concerned we consider their evidence as to the second version entirely unreliable. So far as Nishat Ara is concerned she remained in the employ of the company until it ceased to work and she has every expectation that she will be re- employed therein when it starts functioning. She has further admitted that she was paid by the company a sum of Rs, 3,000, when it stopped functioning. Furthermore, though she claims that she was all the time with the girls at the premises at No, 104-B, and even had sustained burns, she is clearly established to have spoken falsehoods on these and other points. She was forced to admit that she had in fact sustained no burns. She also has had to admit that she was not all the time at the premises at No, 104-B, and that she had gone to the premises at No 96-B, to report the incident to accused Khalil Ahmed. Her most significant admission, however, is that the carboys of Euginol Compound, which were kept at the premises at No, 104-B, were under preparation and that small quantities of other under production drugs used to be kept at those premises. Her evidence thus clearly indicates that drugs in respect of which certain manufacturing processes were still to he carried out used to be kept at those premises. This admission is significant specially when it is considered in conjunction with the evidence regarding the presence of the vacuum/bottle cleaner in the room where the blast occurred, which we will presently consider. 20. The evidence of D.W. Mahmooda Raza also cannot possibly be relied upon. She has stated that D.W. Nishat Ara had not only entered the room where the blast had occurred but even her clothes had caught fire. However, no such thing has been stated by Nishat Ara or any other witness. She has further denied that there was any electric or hand-machine in the room where the blast had occurred. On this point she is not only contradicted by the three ocular witnesses examined by the prosecution but also by the members of the Inspection Committee appointed by Government. Her evidence is also at variance with that of Nishat Ara on another point. As already stated, according to Nishat Ara, she had remained with the girls in the room all along, but this witness has stated that as soon as the fire broke out she (Nishat Ara) ran out. If she did so, it is not understandable how her clothes could have caught fire. It appears to us that D.W. Mahmooda Raza has given obliging evidence. 21. The testimony of the three prosecution ocular witnesses finds strong support from two circumstantial pieces of evidence. The first is the finding in the room where the blast occurred by the three members Committee of Senior Doctors, which had visited the said room about a week after the incident, of a machine described as a vacuum cleaner or bottle cleaner. This clearly was the machine with the help of which Euginol Compound was being filled from a large carboy into smaller bottles. Mention of this machine has also been made in the report of the Committee, which has been produced. The second circumstance is the letter, dated 29-3-1974, addressed by accused Khalil Ahmed to the Provincial Health Department, requesting for permission to use the premises at No, 104-B for drug manufacture, and at the same time admitting therein that they had "extended some of their works to" those premises. This can only mean that certain manufacturing processes were being carried on in those premises since March, 1974. Though the original of this letter has not been produced and is stated not to have been received by the Health Department, a copy of it, which was sent by accused Khalil Ahmed to the Health Department with his reminder, dated 18-11-1975, has been produced.

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22. We are accordingly satisfied on the basis of the ocular testimony coupled with the above circumstantial pieces of evidence that certain processes of manufacturing Euginol Compound were being carried on in the premises at No, 104-B, which were not licensed for that purpose. 23. The Company is admittedly a firm and accused Khalil Ahmed is not only its Managing Director but is incharge of its factory while the other two accused are admittedly its Directors. As such, all the three accused are to be deemed, under the pros isions of section 34 of the said Ordinance, to be guilty of the offence of the unlicensed premises of the Company being used for manufacturing/packing Euginol Compound, in the absence of evidence showin that the offence was committed without their knowledge or consent. Th accused have not been able to discharge the onus placed on them by se tion 34. There is only their bare word, which we are unable to accept, that the did not know that any manufacturing process was being carried on at th Company's premises at No, 104-B. Even if they sit at the Head Office of the Company, as alleged by them, no inference can be drawn therefrom that the were unaware of important happenings either at the factory or the premises a No, 104-B. No question has even been suggested either to a P.W. Or a D.W. That these two accused had no concern with the happenings at the aforesaid premises or what was happening there. As Directors of the Company they must have been visiting the premises and having knowledge of what was being done there. The Company was engaged in the manufacture of drugs for the purposes of sale. The process of manufacturing Euginol Compound at the premises No, 1C4-B must, therefore, have been for the purposes of sale. We are accordingly satisfied that all the three accused are guilty of an offence under section 23 (1) (c) read with section 27 (4) of the said Ordinance. Since the Company had a licence to manufacture Euginol Compound, though their premises at No, 104-B were not licensed for such manufacture, the offence does not fall under the severe provision of section 27 (1) of the said Ordinance. 24. There remains only the question as to what sentence should be awarded to the accused. We find that though as early as on 29-3-1974, the Company had applied to the Provincial Government for licensing of its premises at 104-B, and further its letter was followed by a reminder, dated 18-9- 1975, no action was taken by the Government on these letters. Indirectly, therefore, the inaction of the Government on the request of the Company is partly responsible for the commission of the offence. We are, therefore, o opinion that this circumstance must be taken into consideration in awarding sentence to the accused. In the circumstances, we would impose on accused Khalil Ahmed, who in our opinion is the principal accused, fine of Rs, 5,000 only, in default of which he will suffer R.I. For one year. So far as the other two accused are concerned, who are vicariously liable for the offence, we would impose on each one of them fine or Rs, 3,000 in default of payment of which each of them will suffer R. I. For 6 months.

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