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Petitioner: Sheikh ANWARULHAQ VS Respondent: DEPUTY INSPECTOR-GENERAL OF POLICE, LAHORE JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title:Sheikh ANWARULHAQ vs DEPUTY INSPECTOR-GENERAL OF POLICE, LAHORE
JUDGMENT
Reported As: 2000 P Cr. L J 1644 Result: Petition accepted Judgment JUDGMENT ' According to the version of Sh. Anwar-ul-Haq petitioner the facts giving rise to this Writ Petition No,23240 of 1999 for the quashment of F.I.R No,692, dated 6-10-1998 registered at Police Station Chunian, District Kasur under section 27 of tile Drugs Act, 1976 (hereafter called as the Act for brevity sake) at the instance of Bagh Ali complainant/respondent No,3 are as under:-- 2. Muhammad Qazafi son of Bagh Ali complainant fell a victim to typhoid fever who was examined by the Medical Officer Tehsil Headquarter Hospital, Chunian, District Kasur on 2-9-1998. Dr. Arif Mahmood Medical Officer examined Muhammad Qazafi and issued the prescription. Maxipen injection was to be administered to the said patient which was purchased from Messrs Allah Din Medical Store, Chunian, District Kasur owned by Sh. Anwaar-ul-Haq and run by Sh. Muhammad Anwar, writ petitioner for an amount of Rs,26. The aforesaid injection was administered to the aforesaid patient who allegedly got the reaction. Muhammad Qazafi was got admitted in Emergency Ward of Tehsil Headquarter Hospital, Chunian, District Kasur who was saved. According to Bagh Ali complainant the Maxipen injection was sold after its expiry date as it was manufactured in the month of December, 1995 and its expiry date was December, 1997. He submitted the application before the Assistant Commissioner Chunian, District Kasur for the registration of a criminal case who produced the prescription issued by the Medical Officer, voucher receipt and the empty phial of the injection. The complaint was sent to the S.H.O., Police Station Chunian, District Kasur and the F.I.R. No,692 was registered on 6-10-1998 under section 27 of the Drugs Act, 1976. 3. According to the writ petitioners on the date of submission of the complaint on 6-10-1998 and registration of the F.I.R. Under section 27 of the Drug Act, 1976, the Assistant Commissioner, Chunian,
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District Kasur alongwith the Resident Magistrate, Chunian and the police officials raided his Medical Store and conducted thorough checking of drugs and medicines lying in the shop, but no expired drug, whatsoever, was recovered therefrom when he was intimated about the lodging of the complaint. According to him the registration of the case was held as false and concocted by two superior Police Officers and it was also expressed that the offence is non-cognizable. However, on the report of the Deputy Superintendent of Police (Legal) Lahore, the Deputy Inspector-General of Police, Lahore Range, Lahore is said to have directed the local police to reinvestigate the case and submit the challan. 4. This petition for the quashment of the aforesaid F.I.R. Has been filed on the ground that the alleged offence prima facie falls under section 23(1)(vi) of the Act, the punishment for which is provided under subsection (4) of section 27 of the Act and that in view of the provisions of section 30(2) of the Act the offence is non-cognizable which under section 30(3) of the Act is triable by a learned Drug Court and no permission to take cognizance and investigate the same has been obtained from the learned Drug Court. They averred that criminal proceedings under the Act including the registration of F.I.R. And investigation were conducted without permission of the Provincial Quality Control Board (hereinafter called as Board for brevity sake) set up under section 11 of the Act and that the F.I.R. Required and desired to be quashed is absolutely without jurisdiction, concocted and based on mala fides. 5. The comments have been submitted wherein the facts mentioned by the writ petitioner have been admitted and it has been prayed that the writ petition may be disposed of on merits. 6. This writ petition has been admitted for regular hearing. I have heard the learned counsel for the parties and Ms. Roshan Ara, Assistant Advocate-General Punjab, Lahore. Learned counsel for the petitioner relied on Jamil Ahmad Khan and others v. Assistant Commissioner and others 1990 PCr.LJ 1475 and argued that the sale of drug after expiry of date was non-cognizable keeping in view sections 23(1)(vi)/27(2)(b) and 30(2) of the Act which exclusively being triable by the learned Drug Court, no Magistrate was competent to initiate the criminal proceedings and to hold the trial about which no F.I.R. Could be got registered at the Local Police Station and that the processing of the matter by the local Police was without jurisdiction and devoid of any authority legally vested in them. He also referred to Shuja Ullah v. The State and others 1994 PCr.LJ 1065 Pesh. Wherein it has been held that irrespective of the case being cognizable or non-cognizable the Drug Inspector has to make a report to the Board in case of contravention of the Act and on the specific order of the Board as to the action to be taken the Inspector can proceed to take the action including registration of a case. He added that the registration of the case at the direction of the Assistant Commissioner, Chunian, the raid conducted at his Medical Store by the Assistant Commissioner alongwith the Executive Magistrate and the investigation by the police as well as submissions of the challan is devoid of legal authority, without jurisdiction and illegal. On the contrary learned Assistant Advocate-General and the learned counsel for Bagh Ali respondent No,3 relied on State v. M.N. Huda and eight others 1979 PCr.LJ Note 6 at p.4, passed by the learned Drug Court, Karachi and argued that the case could be registered without the intervention of the Drug Inspector and the Board and that the writ petition is liable to be dismissed. 7. At this stage I would express that it is a case of public interest litigation and requires the deeper dissection and analysis by this Court for the maintenance of balance in the social set-up. In order to test the accuracy of these submissions it is necessary to refer to the relevant provisions of the Drugs Act, 1976. The relevant provisions of law with respect to the initiation of the criminal proceedings are contained in sections 11, 17, to 19, 22, 23, 27 and 30 which are reproduced as under with amendments for the sake of convenience:-- Section 11. Provincial Quality Control Board.--- (1) Each Provincial Government shall set up Provincial Quality Control Board consisting of such members including a Chairman, as that
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Government may appoint from time to time. (2) The Chairman and other members of the Provincial Quality Control Board shall hold office during the pleasure of the Provincial Government, on such terms and conditions as that Government may determine. (3) The Provincial Government shall appoint a person to be the Secretary of the Provincial Quality Control Board and provide the Board with such staff as the Provincial Government may consider necessary. (4) The Provincial Quality Control Board shall make regulations to regulate the conduct of its business. (5) The following shall be the powers and functions of the Provincial Quality Control Board, namely:-- (a) to inspect any premises where any drug is being or is to be manufactured or sold and to recommend to the appropriate authority the cancellation or suspension of the licence to manufacture or sell drugs granted to any person who is found to be contravening, or to have contravened, any of the provisions of this Act, or the rules: (b) to scrutinize the reports of Provincial Inspectors in respect of contraventions of this Act and reports of the Government Analysts in respect of drugs sent to them by the Provincial Inspectors for test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports: ' Provided that the Provincial Quality Control Board may specify the class of cases in which a Provincial Inspector may make a complaint to the Drug Court, or take any other action, without the specific instructions of the Board; (c) to exercise all the powers of an Inspector under this Act and the rules; and (d) to advise the Provincial Government on ways and means to ensure quality control of drugs manufactured in the province. (6) Provincial Quality Control Board may entrust any of its powers or functions under subsection (5) to anyone or more of its members. ' Section 17. Inspectors.--- The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors, or, as the case may be, Provincial Inspectors for the purposes of this Act within such local limits as it may assign to them respectively: ' Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed: ' Provided further that a person serving under the Federal Government or another Provincial Government shall not be so appointed without the previous consent of such Government. ' Section 18. Powers of Inspectors.--- (1) Subject to the provisions of section 19 and of any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, and in any other area within the permission of the licensing authority: (a) inspect any premises wherein any drug is manufactured, the plant and process of manufacture, the means employed for standardizing and testing the drugs and all relevant records and registers: (b) inspect any premises wherein any drug is sold or is stocked or exhibited for sale or is distributed, the storage arrangements and all relevant records and registers; (c) take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed; (d) enter and search, with such assistant, if any as he considers necessary, any building, vessel or place, in which he has reason to believe that an offence under this Act or any rules has been or is being committed or may continue to or is being committed or may continue to be committed;
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(e) call any person to be present as witness in the course of search or seizure or in connection with any other matter where the presence of witnesses is necessary; (f) seize such drug and all materials used in the manufacture thereof and any other articles, including registers, cash memos., invoices and bills, which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any rules; (g) require any person to appear before him at any reasonable time and place to give statement, assistance or information relating to or in connection with the investigation of an offence under this Act or the rules: Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to requisitions for attendance under this clause; (h) lock and seal any factory, laboratory, shop, building, store-house or godown, or a part thereof, where any drug is or is being manufactured, stored, sold or exhibited for sale in contravention of any of the provisions of this Act or the rules: (i) forbid for a reasonable period, not exceeding four weeks or such further period, which shall not be more than three months, as the Inspector may, with the approval of the Provincial Quality Control Board, the Central Licensing Board, the Registration Board, or the licensing authority, as the case may be, specify, any person incharge of any premises from removing or dispensing of any drug, article or other thing likely to be used in evidence of the commission of an offence under this Act or the rules; and (j) exercise such other persons as may be necessary for carrying out the purposes of this Act or any rules: ' Provided that the powers under clauses (f) to (j) shall be exercisable only by an Inspector specifically authorised in this behalf, by an order in writing, by the Government appointing him, subject to such conditions as may be specified in such order: ' Provided further that the power under clause (h) may be exercised by an Inspector not authorised as aforesaid where the contravention is of a provision which requires a licence to be obtained for the manufacture, storage or sale of a drug. (2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in so far as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Act. Section 19. Procedure for Inspectors.--- Where an Inspector seizes any drug or any other article under section 18, he shall tender a receipt, therefor, in the prescribed form. (2) Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal, if any, and mark to all or any of the portions so sealed and marked: ' Provided that, where the sample is taken from premises whereon the drug is being manufactured, it shall be necessary to divide the sample into three portions only: ' Provided, further that, where the drug is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same, and, where necessary, sealing them: ' Provided further that if the contents of one container are insufficient for the laboratory test and analysis, the Inspector may increase the number of the containers in order to make the sample sufficient for his purpose. (3) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the
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same within forty eight hours as follows:--- (i) one portion of sample he shall send to the Government Analyst concerned for test and analysis; (ii) the second he shall send to the Chairman, Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be; and (iii) the third, where taken, he shall send to the warrantor, if any, named under the proviso to subsection (3) of section 32. (4) Where an Inspector seizes any drug containing any filthy or putrid substance, worm, rodent, insect or any foreign matter which is visible to the naked eye, and the sample is such that it cannot or need not be divided, he shall effectively seal and suitably mark the same and permit the person from whom he seizes the drug to add his own seals, if any, and mark to it and shall produce the same before the Drug Court or the Central Licensing Board or the Registration Board, as the case may be, before which proceedings are instituted or action is initiated in respect of the drug. (5) Where an Inspector takes any action under section 18, he shall, as soon as possible inform the Board concerned or its Chairman and take order as to the custody of the stocks of the drugs seized by him: Provided that where a Federal Inspector is not competent to take action under section 30, he shall as soon as may be, report the matter and hand over the stock, if any, to the Provincial Inspector for further action under this Act. (6) The Provincial Inspector on finding any contravention of this Act shall, unless the Board otherwise directs, always refer the case to the Provincial Quality Control Board and seek orders as to the action to be taken in respect of such contravention. (7) The Federal Inspector on finding any contravention of this Act for which he is authorised shall, unless otherwise directed, always refer the case to the Central Licensing Board or the Registration Board of any other authority as may be specified for the purpose and seek any further orders as to the action to be taken in respect of such contravention. Section 22. Reports of Government analysts.--- (1) The Government Analyst to whom a sample of any drug has been submitted for test and analysis under subsection (3) of section 19 shall deliver to the Inspector submitting it a signed report in quadruplicate in the prescribed form and forward one copy thereto to the authority as may be prescribed. (2) The Government Analyst, as far as may be, shall submit the report referred to in subsection (1) 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, shall communicate the reasons to the Inspector in writing and shall endorse its copy to the Board concerned who shall have the sample tested from the same or any other Government Analyst or a Government Drug Testing Laboratory or any other Laboratory and shall ensure the receipt of results of such test and analysis within a further period as may be prescribed and shall make the test report available to the Inspector for further action. (3) On receipt of the report, the Inspector shall-- (a) deliver one copy thereof to the person from whom the sample was taken; (b) forward one copy to the warrantor, if any, named under the proviso to subsection (3) of section 32; (c) forward one copy to the Board concerned for its directions as to the action to be taken on the report; and (d) retain the fourth copy for use in any prosecution or for any other purpose. (4) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within seven days of the receipt of a copy of the report notified in writing to the Inspector of the Drug Court or, as the case may be, the
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Central Licensing Board or the Registration Board or the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report. (5) Where a person has, under subsection (4), notified his intention of adducing evidence in contravention of a Government Analyst's Report, the Drug Court or the Board concerned as the case may be, the Central Licensing Board, the Registration Board, the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug lying with the Board concerned under subsection (3) of section 19 to be sent for test or analysis to the Federal Drug Laboratory or any other laboratory specified for the purpose by the Federal Government which shall make the test or analysis and report within thirty days of the receipt of the sample in writing signed by, or under the authority of the person for the time being incharge of the Federal Drug Laboratory, or as the case may be, such other laboratory, the result thereof and such report shall be conclusive evidence of the facts stated therein. (6) The cost of a test or analysis made by the Federal Drug Laboratory or other laboratory under subsection (5) shall be paid by the complainant or accused as the Drug Court of the Board concerned shall direct. ' Section 23 Import, manufacture and sale of drugs.--- (1) No person shall himself or by any other person on his behalf-- (a) export, import or manufacture for sale or sell: (i) any spurious drug; (ii) any imitation product; (iii) any misbranded drug; (iv) any adulterated drug; (v) any substandard drug; (vi) any drug after its expiry date; (vii) any drug which is not registered or is not in accordance with the conditions of registration; (viii) any drug which, by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be, prescribed; (ix) any drug if it is dangerous to health when used in the dosage or with the frequency, or, for the duration specified, recommended or suggested in the labelling thereof; or (x) any drug in contravention of any of the provision of this Act or any rule; (b) manufacture for sale any drug under, and in accordance with the conditions of a licence issued under this Act; (c) sell any drug except under and in accordance with the conditions of a licence issued under this Act; (d) import or export any drug the import or export of which is prohibited by or under this Act; (e) import or export any drug for the import or export of which a licence is required, except under, and in accordance with the conditions of such, licence; (f) supply an incorrect, incomplete or misleading information, when required to furnish any information under this Act, or the rules; (g) peddle, hawk or offer for sale any drug in a park or public street or on a highway, footpath or public transport or conveyance; (h) import, manufacture for sale, or sell any substance, or mixture of substances, which is not a drug but is presented in a form or a manner which is intended or likely to cause the public to believe it to be a drug;
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(i) sell any drug without having a warranty in the prescribed form bearing the name and batch number of the drug issued-- (i) in the case of drug manufactured in Pakistan, by the manufacturer holding a valid licence to manufacture drug and permission to manufacture that drug or by his authorised agent; (ii) in the case of an imported drug, by the manufacturer or importer of that drug or, if the drug is imported through an indenter by such indenter; (j) apply an incorrect batch number to a drug; and (k) sell or import a drug above the maximum price fixed under this Act on which the drug shall be sold or imported. (2) Nothing in subsection (1) shall apply to the manufacture or subject to prescribed conditions, of small quantities or any drug for the purpose of clinical trial examination, test, analysis or personal use. Section 27 Penalties.--- (1) Whoever himself or by any other person on his behalf; (a) exports, imports, manufactures for sale or sells any spurious drug or any drug which is not registered; (b) manufactures for sale any drug without a licence; or (c) imports without licence any drug for the import of which a licence is required; ' shall be punishable with imprisonment for a term which shall not be less than five years or more than ten years and with fine which may extend to five Lakh rupees; (2) Whoever himself or by any other person on his behalf-- (a) imports, manufactures for sale or sells any imitation product; or (b) gives to the purchaser a false warranty in respect of any drug sold by him that the drug does not in any way contravene the provisions of section 23 and is not able to prove that, when he gave the warranty, he had good and sufficient reason to believe the same to be true; or (c) applies or permit to be applied to any drug sold, or stocked or exhibited for sale, by him, whether on the container or a lable or in any other manner, a warranty given in respect of any other drug, or (d) imports, manufactures for sales or sells any drug under a name other than the registered name; or (e) exports, imports, manufactures for sale or sells any drug with which any substance, which should not actually be its component, has been mixed or packed so as to reduce its quality or strength or for which any such substance has been substituted wholly or in part; shall be punishable with imprisonment for a term which may extend to seven years, and with fine which may extend to one Lakh rupees. (3) Whoever obstructs an Inspector in the exercise of any power conferred upon him by or under this Act, or disobeys the lawful authority of any Inspector, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. (4) Subject to the provisions of subsection (1), subsection (2) and subsection (3), whoever himself or by any other person on his behalf contravenes any of the provisions of this Act or any rule shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both. Section 30 Cognizance of offences.--- (1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except--- (a) by a Federal Inspector, where the prosecution is in respect of…
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