Full Judgment Text & Judicial Ruling

2019 P Cr. L J Note 163 [Sindh] Before Salahuddin Panhwar and Muhammad Saleem Jessar, JJ Messrs TIANSHI INTERNATIONAL PAKISTAN CO. (PVT.) LTD. and another---Petitioners Versus FEDERATION OF PAKISTAN and others---Respondents Writ Petition No. 6145 of 2015, decided on 22nd August, 2017. (a) Drugs Act (XXXI of 1976)--- ----Ss. 23, 27, 30 & 33---Drugs Regulatory Authority of Pakistan Act (XXI of 2012), Ss. 3(2b), 7, 29, 30, 32 & Sched. IV---Import, export, manufacting and sale of spurious, counterfeit, misbranded, substandard, unwarranted, unregistered, smuggled drugs---"Drug"---Definition---Scope---Quashing of FIR---Scope---Petitioner, a private limited company was engaged in business in Pakistan for the last thirteen years and imported products including perfumes, cosmetics, healthcare devices, food supplements---Such products were based on five thousand years of traditional Chinese healthcare culture and traditional methods based on plants and herbs, which being food supplements were neither drugs nor medicines, not covered by definition of "drugs" under the Drugs Act, 1976---Provincial Inspector of Drugs made a report to the FIA that petitioner company was engaged in selling, supplying, distribution of suspected spurious, counterfeit, sub-standard, unwarranted, unregistered drug products under the garb of food supplements, healthcare products which was a cognizable offence under the Act and requested FIA for joint action for inspection/raid and investigation, which was without jurisdiction---Joint Team of FIA and Provincial Inspectorate of Drugs, while acting promptly, conducted a raid at the premises of the petitioner-company and warehouse, seized various products, arrested employee and distributor of company and registered the FIR---Validity---Record showed that department had attempted to justify the lodgment of the FIR with reference to Drugs Act, 1976 as Drugs Regulatory Authority of Pakistan Act, 2012---Definition of 'drug' provided under the Drugs Regulatory Authority of Pakistan Act, 2012 was not different but included word Chinese with ayurvedic, Unani, homeopathic, biochemic system of treatment---Definition of "drugs" with reference to Drugs Regulatory Authority of Pakistan Act, 2012 would also be of no help for the department to include the "food supplement" into category of "drugs" unless the same were shown to be meant for treatment which was not the case with products of petitioner---Petitioner had claimed that in response to a letter, sent by the petitioner, the Ministry of Health had communicated that Drugs Act, 1976 was not applicable to such products---Prosecution had not denied the claim of the petitioner that companies, including petitioners, made applications for registration under the Drugs Regulatory Authority of Pakistan Act, 2012, but the authority concerned, being unable to cope with volumes of applications, issued notification dated 12.10.2015, exempting all such products from the provision of S. 7 of the Act, till 31.12.2015---Record showed that present FIR was lodged on 12.9.2015 though prior to said notification/letter but when the Authority itself exempted such products from registration then the allegation of dealing with unregistered product would not be an offence nor such allegation with reference to Drugs Regulatory Authority of Pakistan Act, 2012 could result into conviction---Facts and circumstances of the case suggested that prosecution initiated against the petitioner, was nothing but an abuse fo process of law and would never end into conviction and it would serve no purpose to let the prosecution continue---First Information Report along with all the subsequent proceedings/ consequences were quashed under Art. 199 of the Constitution accordingly. [Paras. 10, 11, 12 & 16 of the judgment] Agha Nadim v. SHO, Police Station Lahori Gate 1998 PCr.LJ 181; Agha Nadim v. Province of Punjab 2005 MLD 1366; Searle Pakistan Ltd. v. The State PLD 1985 Lah. 503; Sheikh Anwarul Haq v. DIGP Lahore Range 2000 PCr.LJ 1644; Dr. Muhammad Anwar Tanvir v. SHO, Police City Pak Patan Sharif 2006 MLD 668; Abdullah Shamim v. The State 1990 MLD 1524; Messrs Nawabsons Lab. v. Government of Punjab, Health Department PLD 2003 Lah. 115; Hafiz Khalil v. The State 1996 PCr.LJ 1183; Shujaullah v. The State 1994 PCr.LJ 1065; The State v. Iqbal Ahmad Khan 1996 SCMR 767; 2005 YLR 1545; 2005 YLR 1545; PLD 1976 Lah. 813; PLD 2009 SC 102 and PLD 2013 SC 401 ref. (b) Interpretation of statutes--- ----Provisions of special law override the provisions of general law to the extent of a conflict or inconsistency between the two. [Para. 10 of the judgment] State Life Insurance Corporation v. Sardar Begum 2017 SCMR 999 rel. (c) Administration of justice--- ----If a particular procedure had been provided for doing a particular act then the same had to be done in that manner. [Para. 11 of the judgment] Shahida Bibi and other v. Habib Bank Ltd. PLD 2016 SC 995 rel. (d) Interpretation of statutes--- ----None including an Authority was permitted to use redundant or surplus words/phrases if the language of provision was otherwise plain and unambiguous. [Para. 13 of the judgment] Zahid Javed v. Tahir Riaz Choudhry PLD 2016 SC 637 and Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel. Wasim Sajjad and Omar Sajjad for Petitioners. Saeed A. Memon, Assistant Attorney-General, Sibtain Mehmood and Jan Muhammad, Assistant Advocate-General for the Federation. Dates of hearing: 5th and 15th May, 2017. JUDGMENT SALAHUDDIN PANHWAR, J.---Petitioners seek quashment of FIR No.44/2015 registered under sections 23 and 27 read with sections 30 and 33 of Drugs Act 1976 at PS FIA Anti-Corruption Circle, Karachi, being without lawful authority, mala fide and of no legal effect. 2. Briefly stated, relevant facts are that petitioner No.1 is a private limited company, incorporated under the Companies Ordinance, 1984, having its head office at Islamabad and Branch Office at Karachi; petitioner No.2 is its Branch Administrator at Karachi; that company is of Tiangin-Tianshi which is a multi-national, having its headquarters in China, operating various companies in 110 countries of the world with products of international reputation recognized by organizations like ISO, HACCP, GMP, etc.; petitioner company is engaged in business in Pakistan for last thirteen years and imports products including perfumes, cosmetics, healthcare devices, food supplements, etc., such products are based on five thousand years of traditional Chinese healthcare culture and traditional methods based on plants and herbs, food supplements imported which however are neither drugs nor medicines, not covered by definition of Drugs under the Drugs Act, 1976; products based on plants and herbs are excluded from definition of drugs under section 3(g)(i) of the Drugs Act, 1976 (hereinafter referred to as 'the Act'). It was stated that on 11.09.2015 respondent No.2 (Provincial Inspector of Drugs) made a false report to the FIA that petitioner company was engaged in selling/supplying/distribution of suspected spurious/counterfeit, sub-standard, unwarranted/unregistered drug products under the garb of food supplements/healthcare products which is cognizable offence under the Act and requested to FIA for joint action for inspection/raid and investigation, such request was without jurisdiction; however a joint raid team of FIA-Provincial Inspectorate of Drugs, while acting promptly, conducted a raid at premises of company at Karachi while accompanied by representatives of media and seized following imported products:- Glucosamin 500 mg Super calcium capsule with Lecithin Tiens Natto Ginkgo Capsules Tiens Super Calcium Powder with Metabolic factors Tienshi Nutrient Super Calcium Powder Tiens Multi-Vita B Tablets Tiens Super Calcium Powder for children Galaxs Membantu Memelihara Stamina Pria Breast Care apparatus. That another raid by same team was carried out at company's godown/ warehouse at Karachi and seized some of the products imported, followed by a third raid at workplace of Distributor of the company seizing various products, an employee and distributor of the company were arrested and subject FIR was registered. 3. Learned counsel for petitioner contended that petitioner company imports food and health supplements based on herbs and natural products, and sells them in Pakistan, in 2008 in response to a letter sent by the company, Ministry of Health communicated that the Drugs Act was not applicable as it does not cover food and diet supplements provided such products are meant for nutritional purpose only and no therapeutic claims for diagnosis treatment, cure or prevention etc. of any disease is made for them; for the products imported by the company no claim is made that they are meant for treatment, mitigation, prevention or diagnosis of diseases, it was explained that the products are based on traditional Chinese medicine and not covered under the definition of drugs as provided in section 3(i) of the Act; FIR was registered against several executives of the company including its chairman who lives in China and does not deal with day today affairs of company with the allegation that products were suspected spurious, counterfeit, substandard and unregistered sold under garb of food supplement/ healthcare products which allegation is patently false. It is argued that Provincial Drug Inspector has no authority to straight away lodge FIR without first seeking orders of the Provincial Quality Control Board (PQCB) for the action proposed to be taken, as per procedure provided, on receiving a report about any contravention of the Act from Provincial Inspector and on scrutiny, PQCB issues instructions to the Inspector for action to be taken, no such instructions in present case were obtained; the notification dated 30.12.205 relied upon by Inspector to claim that he has authority to lodge FIR without instruction from PQCB is ultra-vires of section 11(5)(b) of the Act, such notification is also not placed on record by Provincial Inspector. It is pointed out that under section 11(5)(e) it is the duty of PQCB to ascertain names of directors and employees of the company responsible for commission of an offence, the Provincial Inspector at his own decided to prosecute the Directors, Chief Executive and other employees of company without any authority; that per section 30(2) of the Act all offences are non-cognizable except the one under section 27(i) therefore FIR in respect of alleged offence under section 23 of the Act is illegal, so far offence under section 27(i) is concerned, section 30(i)(a) provides that only Federal Inspector can prosecute a person. It is contended that spurious drug has been defined in section 3(zb) of the Act hence no allegation of prosecution is covered against the company under that definition; that reply of Inspector claims that products of petitioner company are covered under Drug Regulatory Authority of Pakistan Act, 2012 (DRAP Act 2012), no allegation regarding violation of DRAP Act have been made in the FIR; that DRAP Act, 2012 was promulgated on 13.11.2012 under which alternative medicine (homeopathic, Chinese, etc) were for the first time made registerable hence a large number of companies made applications for registration, the authority concerned being unable to cope with volumes of application, issued notification dated 12.10.2015 exempting all such products from provision of section 7 of that Act until 31.12.2015 hence FIR was lodged on 12.09.2015 during the time when no registration was taking place, that company had applied for registration to DRAP Act 2012 and some of its products have already been registered while others are in registration process, company is not selling any product that is not registered. Learned counsel has argued that DRAP Act, 2012 is not included in the schedule of FIA Act hence FIA has no authority to launch prosecution in respect of DRAP law, further FIR against the company mentions violation of Drugs Act, 1976 and no violation of DRAP law has been alleged; that under section 32 of DRAP law, Drugs Act, 1976 continues in force along with safeguards provided in section 11 which will govern the procedure; that per schedule IV of DRAP Act, 2012 it is the Federal Inspector who has authority in respect of import or export of therapeutic goods, Provincial Inspector has no authority. 4. Learned counsel has further contended that reports from government analyst submitted in Provincial Inspector categorically state that none of the samples was found spurious, adulterated, substandard or misbranded that the case law on the subject is to the effect that provisions of section 11 of the Drugs Act, 1976 are mandatory and any FIR lodged in violation thereof is liable to be set aside. Learned counsel has relied upon 1998 PCr.LJ 181 (Agha Nadim v. SHO, PS Lahori Gate), 2005 MLD 1366 (Agha Nadim v. Province of Punjab), PLD 1985 Lahore 503 (Searle Pakistan Ltd v. The State), 2000 PCr.LJ 1644 (Sheikh Anwarul-Haq v. DIGP Lahore Range), 2006 MLD 668 (Dr. Muhammad Anwar Tanvir v. SHO, PS City Pak Patan Sharif), 1990 MLD 1524 (Abdullah Shamim v. The State), PLD 2003 Lahore 115 (Messrs Nawabsons Lab. v. Government of Punjab, Health Department), 1996 PCr.LJ 1183 (Hafiz Khalil v. The State), 1994 PCr.LJ 1065 (Shujaullah v. The State), 2000 PCr.LJ 1644 (Sheikh Anwarul-Haq v. DIGP Lahore Range) and 1996 SCMR 767 (The State v. Iqbal Ahmed Khan). 5. Learned Assistant Attorney General has argued that FIR was lodged at the complaint of Drug Inspector under its inherent jurisdiction under sections 23 and 27 read with sections 30 and 33 of the Drugs Act, 1976, that Drugs Act, 1976 does fall under the schedule attached with FIA Act as its cognizable offence; that FIA has jurisdiction to take cognizance of any offence that falls under its schedule on a complaint made to it by any person even can take such action and investigate a matter at its source report; while relying upon 2005 YLR 1515 and PLD 1976 Lahore 813, he contended that section 4(1)(f) of Cr.P.C. empowers FIA to take steps under section 154, Cr.P.C. on receipt of information either made orally or in writing relating to commission of cognizable offences followed by investigations; while referring to PLD 2009 SC 102 he contended that police have statutory duty and right under section 154, Cr.P.C. to investigate the offence cognizable whenever a report is made to it disclosing commission of offence and in such cases FIR is not liable to be quashed; that the prayer of quashment of FIR in constitutional jurisdiction is not maintainable as alternative remedy is available that section 11(5)(b) of Drugs Act, 1976 provides Provincial Quality Control Board may specify the class of cases in which a Provincial Drug Inspector may make a complaint to Drug Court or take other action without specific instructions of the Board; that in that section Drug Inspector was authorized vide Notification dated 30.12.2005 by Provincial Quality Board Government of Sindh to lodge FIR in cases falling under section 27(1) of the Drugs Act and submit complaint directly before Drug Court with consultation of Deputy District Attorney Sindh and under intimation to Provincial Quality Control Board in respect of unregistered drugs. It was pointed out that per section 16 of Drugs Act, Drug Inspector is bound to send samples for analysis to government analyst, Drugs Testing Lab/National Institute of Health. It was argued that definition of drug is modified in DRAP Act, 2012 where Unani Ayurvedic, Homeopathic, Chinese or bio-chemical system of treatment are also included in the definition, sections 3(i) and 3(v) are relevant for the purpose of present case. The petitioner claims its medicine under herbal and Chinese system of treatment hence was liable to get all their products registered with the authority but failed to do so until FIR was lodged, petitioners filed similar type of case before Peshawar High Court, which fact shows that they were in knowledge of all prevailing laws. Learned counsel explained that each system is allowed to use those ingredients which are mentioned in its system's pharmacopeias, admittedly ingredients of petitioner's medicines do not fall within the pharmacopeias of Unani (herbal)/Chinese systems, ingredients found in samples are part of allopathic pharmacopoeia of Pakistan as well as of US and British pharmacopeias hence illegal act of petitioner is evidence on its face. Learned counsel urged that remedy for quashment of FIR is also available to petitioner under section 249-A before trial Court, petitioner had obtained bail from trial court can approach the same for their grievance the apex Court had declined to interfere in case to quash FIR where alternate remedy is available as held in PLD 2013 SC 401; that case before Peshawar High Court is distinct to present case as in that case Drug Inspector had taken action under section 11 of Drugs Act and collected samples at his own and sent for laboratory test, show cause notices were also given to petitioner and after getting results he instead of submitting report to the Board for permission, directly approached the FIA for registration of FIR besides permission from board was obtained at belated stage, due to such illegality petitioner had approached High Court; such FIR was quashed with direction to Drug Inspector to adopt legal procedure; however, in instant case Drug Inspector had acted under the notification referred above and made complaint to FIA prior to taking any steps, FIA acted as per its mandate, registered FIR, proper challan was prepared by Drug inspector and after completing all formalities filed before the Drug Court that refused to be admitted due to stay order in present lis hence present petition is liable to be dismissed. 6. We have heard the respective sides as well have gone through the available material carefully. 7. At the very outset, we would take up the objection, raised by the Learned Assistant Attorney General with regard to competence of this Court for entertaining a request for quashment of an FIR in Constitutional Jurisdiction. We are conscious that normally this Court avoids entertaining a request for quashment particularly where cognizance is taken by the Court of law but there is an exception to such general principle particularly where the circumstances prima facie make it clear that continuity of such proceedings amounts in abuse to process of law. Further, the learned Assistant Attorney General also did not dispute/deny the fact that petitioner did got such like FIR quashed from Peshawar High Court which even was maintained by Honourable apex Court. Thus, we do not find any substance in such objection. 8. Reverting to the merits of the case, what we found that the Learned Assistant Attorney General have not denied the legality of the mandatory requirement, as provided by the Drugs Act, 1976 for prosecution as well dismissal of the petition by honourable apex Court whereby challenge to quashment, ordered by Peshawar High Court, was made but have attempted to seek an exception by raising plea(s), which are: i) vide Notification dated 30.12.2005, issued by Provincial Quality Board Government of Sindh, the complaint(s) of cases, falling within meaning of section 27(1) of Drugs Act, can well be prosecuted; ii) Drugs Act 1976 does fall under the schedule attached with FIA Act as its cognizable offence; iii) the definition of drug is modified in DRAP Act, 2012 where Unani, Ayurvedic, Homeopathic, Chinese or bio-chemical system of treatment are also included in the definition; 9. Since, the learned AAG while arguing did refer to decision, made by Peshawar High Court and that of honourable apex Court hence the first stand was never available as legality of such notification/letter was specifically dealt with in such decision. To make things easy, it would be proper to make a direct reference to operative part of judgment dated 04.11.2009, passed by Peshawar High Court in A.W.P. No.786/2008 which are:- "18. Before parting with this judgment, we are constrained to hold that it is settled principle of law with regard to construction of statute laws that unless and until the legislature confer powers upon the authority having delegated powers of rules making to further delegate such powers then the authority under no circumstances can further delegate such powers, therefore, the letter of the Provincial Quality Control Board authorizing the Drugs Inspectors in general terms to register FIRs in their respective jurisdiction, is ultra vires of the statutory law, which clearly stipulate that instructions/prior approval of the Board for registration of cases in cognizable offences or for filing complaint before the Drug Courts is legally mandatory, thus, the impugned notification/letter of Provincial Quality Control Board, to the above extent is declared to be of no legal effect and without lawful authority." The said order was challenged by the department vide Civil Petition No.9-P/2010 before the apex Court but met same fate whereby the order to above extent was categorically stamped. The operative part reads as:- "2. Learned Additional Advocate General argued that the Principal Drug Inspector had the authority to raid and to get the FIR registered against the respondents; the High Court has illegally declared the letter (mentioned in paragraph 18 of the impugned judgment) of the Provincial Quality Control Board authorizing the Drug Inspector in general terms to register FIR in his respective jurisdiction as ultra vires. 3. Heard. As regards the acts of omission and commission of the petitioner-department, which have indicated and mentioned in the impugned judgment, are concerned, those are quite obvious and manifestly render the actions of the petitioner-department and the lodging of FIR illegal. However, as has been observed by the High Court through the impugned judgment the department is not debarred to take fresh action against the respondents, after following the steps which are required by the law, thus, the department has an authority to resurrect the matter. 4. In the circumstances, we do not find any legal or factual infirmity in the impugned judgment calling for interference in the instant jurisdiction. The petition being devoid of merits stands dismissed. Leave to appeal declined." 10. Now, would take up the second and third pleas jointly, whereby the department has attempted to justify the lodgment of the FIR with reference to Drugs Act, 1976 as well with reference to DRAP Act. There can be no denial to the legally established principle of law that provisions of special law always override the provisions of general law to the extent of a conflict or inconsistency between the two. Reference may be made to the case of State Life Insurance Corp. v. Sardar Begum (2017 SCMR 999) wherein at relevant page No.1004, it is held as: "Hence where a special law determines a place of suing, which in the present case in terms of section 2(6) could be either the principal Civil Court of original jurisdiction in a district or the special Civil Jurisdiction of the Sindh High Court and Islamabad High Court, the same would prevail over the provision of section 15 of the Code of Civil Procedure. It is now trite law that the provisions of special law always override the provisions of the general law to the extent of any conflict or inconsistency between the two." Therefore, if the department attempts to stick with the Drugs Act then it (department) shall have no exception but to follow the mandatory procedure, provided by the Act itself because it is also equally settled principle of law that if a particular procedure has been provided for doing a particular act then the same has to be done in that manner. Reference may well be made to the case of Shahida Bibi and others v. Habib Bank Ltd. (PLD 2016 SC 995) wherein at relevant page 1011, it is held as: "... It is settled that where law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed a mere technicality." 11. At this point, it would be fair enough to first have a direct look at the relevant provision of the Drugs Act, 1976 which deals with cognizance of offence(s) which is: "30. Cognizance of offences.---(1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except - by a Federal Inspector, where the prosecution is in respect of contravention of clause (h) of subsection (1) of section 23 or section 24 or any of the provisions of this Act or the rules relating to the import or export of drugs or the manufacture for sale, or sale of a drug; which is not for the time being registered or for the manufacture for sale of which a licence is not for the time being in force; or A bare reading of the above makes it quite evident that prosecution under this Act could…

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