' The appellant who deals in the manufacture and sale of Unani Medicines was accorded sanction for the licence in Form DD-5 for the year 2001-2002, vide order No,10815/Excise/XIX-B24, dated 6-9- 2001, issued by the Directorate of Excise & Taxation, N.-W.F.P., Peshawar, whereby the appellant was authorized to purchase and possess 9-K.G., of medicinal opium on quarterly basis. The requisite licence in Form DD-5 was issued to the appellant on 9-10-2001. Thereafter the Director General, Excise & Taxation, N.W.F.P., Peshawar issued to the appellant, a transportation and possession authorization permit/Pass No,3/Excise/2001-2002, dated 23-10-2001, in Form DD-2, valid up to 15-12- 2001, for the transportation of 9-KG of medicinal opium from Government Alkaloid Factory, Lahore to Peshawar along with a covering letter No,12530/Exise/XIX-C-190, dated Peshawar the 23-10-2001.
The appellant was, however, released half of the quota i,e, 4.5 K.G. Of medicinal opium through memo dated 5-12-2001. The appellant alleges that full quota of 9 K.G was not released on the pretext that on account of depletion in the stock it was not possible to release full quota and appellant was verbally directed to approach for the release and sale of the remaining half after having consumed the first instalment. It is further alleged that after the utilization/ consumption of the medicinal opium supplied to the appellant in the manufacture of Unani Medicines, the appellant in June, 2003 approached the respondents for the release and sale of the remaining half of the sanctioned quota and the grievance of the appellant is that despite the lapse of a considerable period and frequent visits of a representative of the appellant, the respondents have not taken any action on the appellant's application, for the release of the remaining half of the sanctioned quota. He thus, approached this Court through W.P. No,11235/03 with the prayer that "refusal by respondents to release/sell the remaining half of the sanctioned quota of the medicinal opium to the petitioner may very kindly be declared as without lawful authority and of no legal effect and respondents may very graciously be directed to release/sell to the petitioner the remaining half of the sanctioned quota of the medicinal opium." The petitioner was heard by a learned Single Judge of this Court and was dismissed on 30-6-2004. This is Intra-Court Appeal thereagainst.
2. The learned counsel for the appellant has been heard whose prime contention is that the licence issued on 6-9-2001 authorized the appellant to purchase and possess 9-KG medicinal opium powder but only half of the same (4.5-KG) was issued and the appellant was entitled to the remaining half which was refused without valid justification. According to him the licence once issued was unaffected by any later legislation, such as Control of Narcotic Substances Act, 1997 or the rules framed thereunder viz. Control of Narcotic Substances (Regulation of Drugs of Abuse Control Chemicals Equipment and Materials) Rules 2001. It is contended that the learned Single Judge while dismissing the petition has not dealt with the matter in its correct perspective inasmuch as that the appellant could not be denied the relief on the grounds, which prevailed with the learned Single Judge.
3. After considering the matter we do not find ourselves in agreement with the learned counsel inasmuch as the crucial aspects of the matter have been duly attended to by the learned Single Judge in dismissing the writ'petition. At this juncture we may make reference to paragraph-6 of the judgment, which takes care of all essential aspects of the matter and is reproduced here:- "6 The Dangerous Drugs licences (D.,D.5), used to be issued previously, under Dangerous Drugs Act (No,II) of 1930 read with Dangerous Drugs Rules, 1958. The above said Act was repealed under section 78(1) of the Control of Narcotic Substances Act (XXV) of 1997. However, under section 78 (2) of the Act No,XXV of 1997, D.D.5 licences issued prior to the promulgation of C.N.S.A. 1997 have been saved. New D.D.5 licences are to be issued under section 6 and 7 of Act XXV of 1997, in accordance with the rules/procedure to be laid down by A the Federal Government. Section 7(2) of the above Act authorizes the Federal Government to make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances, and such rules may prescribe the ports or places at which any kind of narcotic 'drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transshipped, the form and conditions of licence, permit .Or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefore, any other matter required to have effective control of the Federal Government over such import, export, transportation and transshipment. Such rules have been framed by the Federal Government. Under sections 4, 6, 7 (2), 10 and 77 of the Control of Narcotic Substances Act, 1997. They are known as Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001. They were published in the Gazette of Pakistan on 28-11-2001 and under rule 2(iv) of the above Rules, the competent authority to be notified in the official Gazette by the Federal Government, is to discharge various functions including registration, licensing import, export and transit permit authorization etc. Therefore D.D.5 licence dated 6-9-2001 and 9-10-2001 (both referred above) issued in favour of the petitioner by the N.-W.F.P., Government under rule 3(1) of the Dangerous Drugs Rules 1958 framed under the Dangerous Drugs Act, 1930 was illegal as the said law stood repealed, long ago, under section 78(1) of the Control of Narcotic Substances Act, 1997. The claim of the petitioner for the release of the remaining quota, under the above said licence has, therefore, no legal validity. The new licences are to be issued under the Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment, and Materials) Rules, 2001, which have been framed and issued by the Federal Government (Narcotic Control Division) in the exercise of powers conferred by section 77 of the Control of Narcotic Substances Act, 1997 read with sections 4, 6, 7(2) and 10 thereof. The petitioner, therefore, has to obtain a valid licence for medicinal opium from the competent authority, to be notified under rule 2(iv) of the above rules and only thereafter he can approach the respondents 1 to 3 for issuance of medicinal opium in accordance with the terms and conditions laid down in the licence so obtained."
In such view of the matter we are not persuaded to take any different view of the matter.
4. Besides the reasoning which prevailed with the learned Single Judge to dismiss the petition, it may be observed that the appellant otherwise is also not entitled to any relief/direction in the nature of mandamus for the sale of medicinal opium inasmuch as that the sanction for licence authorizing the appellant to purchase and sell the medicinal opium issued on 6-9-2001 was valid for one year i,e, 2001-2002. The permit/pass dated 23-10-2001 in Form DD-2 issued by the Director General Excise and Taxation N.-W.F.P., Peshawar was valid only up to 15-12-2001. The period and term of the same was specifically mentioned therein as from 1-10-2001 to 31-12-2001. The petitioner was delivered 4.5-KG of medicinal opium powder as per its own averments in the month of December. The agitation made by him for the purchase of 4.5-KG medicinal opium was through letter dated 17-6-2003 addressed to the Secretary, Government of the Punjab, Excise Department, Lahore by which time his licence had expired by efflux of time. The writ petition was thereafter filed before this Court on 5-8-2003. The appellant could not in the circumstances be delivered the medicinal opium powder, as he had no backing of a valid licence in existence. No direction in the nature of mandamus could be issued in favour of the appellant in such circumstances. Reference in this context may be made to Government of Pakistan through Secretary, Ministry of Commerce and others v. Zamir Ahmad Khan (PLD 1975 SC 667), wherein one of the question that arose was, whether writ of mandamus could be issued to do that which at the time when the writ was issued the respondent was not required by law to do? The answer to the question was in negative and it was held that "mandamus would not be issued in such cases". The contention of the learned counsel, therefore, in such context does not hold good. The learned Single Judge, therefore, was amply justified in observing that the "claim of the petitioner for the release of the remaining quota under the above said licence has therefore, no legal validity." In this view of the matter we find no valid justification to interfere with the impugned judgment.
' The appeal being bereft of merit is dismissed in limine.