' This revision petition is directed against the order dated 19-4-2005 passed by the Chairman, Drug Court, N.-W.F.P., Peshawar (respondent No.2) whereby application of the petitioner under section 265-K, of the Cr.P.C. Was dismissed.
2. Facts of the case are that petitioner along with Sh. Muhammad Anwar and Rizwan Ahmad were sent for trial through a complaint by Provincial Drug Inspector under section 23(1)(a)(v) of the Drugs Act, 1976 punishable under section 27(4) of the Drugs Act, 1976. In the contents of complaint submitted on 23-2-2004 it is stated that the petitioner's premises known as Zahid Enterprises at Abdul Market Namak Mandi Peshawar were inspected on 11-5-2002. During inspection samples of drug namely Durum Injection (Diclofenac Sodium) 75 mg/3 ml Batch No.010 manufactured by Pride Pharmaceuticals, 4/19 and 4/36 Sector 21, K.I.A. Karachi-74900 were, taken for the purpose of test/analysis to the Government Analyst, Drugs Testing Laboratory, N.-W.F.P, Peshawar. The samples were tested through Analyst who reported vide TRA No .13361/DTI dated 10-7-2002 communicating that the sample of drug was found substandard in contravention of section 23(1)
(a)(v) of the Drugs Act, 1976. The petitioner was issued a Show-cause Notice No.359/PDI dated 26- 7-2002 which was replied within three days on 29-7-2002 explaining his innocence by submitting delivery Challan No.2146 dated 30-4-2002 and Invoice No.1243 dated 9-3-2002 and also submitted document of warranty furnished by M/s. S.Suua Pharma International, Hamza House, Gulshan- eZafar, 11-C, Prechs near SMCHS Block-B Karachi-Pakistan duly singed by Sh. Muhammad Anwar Warrantor (co-accused of the petitioner). The concerned authority for verification of the explanation furnished by the petitioner issued Letter No.455/PDI dated 6-9-2002 to the said Sh. M.
Anwar warrantor which was responded by submitting photostat copy of Invoice No.005 dated 2- 10-2001 along with Warranty of Pak Traders, Plot No.RB3/21, Domelow Road, Pakistan Chowk Karachi duly signed by Rizwan Ahmad as warrantor (2nd co-accused of the petitioner). Rizwan Ahmad warrantor was also asked to explain through Letter No.645/PDI dated 21-10-2002 who in response submitted that drugs in question were supplied from M/s. S. Suua Pharma International Karachi purchased from M/s. A.M. Medicose, Katcha Gali, Karachi but could not provide the Invoice being lost by warrantor Mr. Masoom Khan who was reported to be out of country. Due to non-production of Invoice and Mr. Masoom Khan as warrantor the matter was discussed in the 126th meeting of the Provincial Quality Control Board, N.-W.F.P., Peshawar dated 23-10-2003 and it was decided that the case be referred to Drug Court arraying the petitioner and his two co-accused to face the charge.
3. The Chairman, Drug Court N.-W.F.P. Peshawar took cognizance of the matter on 21-8-2004 and process was issued against the petitioner. The petitioner put his appearance and his co-accused in the case did not turn up in response to the process. The petitioner applied for acquittal under section 265-K, Cr.P.C. On the basis of undisputed facts/material available on record. The application was dismissed on the sole ground of non-appearance of the warrantor (co-accused of the petitioner). Hence this revision petition.
4. I heard the learned counsel for the petitioner and Additional Advocate-General for State. Also perused the record.
5. Section 23 of the Drugs Act, 1976 provides prohibition on import, manufacture, and sale of drugs.
It is laid down in the said section of law that no person shall himself or by any other person export, import or manufacture for sale or sell any substandard drug. Subsection (3) of section 32 of the Drugs Act, 1976 lays down as follows:- "(3) A person, not being the manufacturer of a drug or his agent for the distribution thereof, shall not be liable for a contravention of section 23 if he proves that he acquired the drug from a duly licensed manufacturer or his authorized agent or an importer or an indentor resident in Pakistan under a written warranty in the prescribed form stating, in particular, the batch number of the drug and signed by such person that the drug does not in any way contravene the provisions of section 23 and that the drug while in his possession was properly stored and remained in the same state as when he acquired it and that the drug has been manufactured by a manufacturer holding a valid licence to manufacture drugs and permission to manufacture that drug: ' Provided that a defence under clause (b) shall be open to a person only----
(i) if he has, within seven days of the service on him of the summons, sent to the Inspector a copy of the warranty with a written notice stating that he intends to rely upon it and giving the name and address of the warrantor, and
(ii) if he proves that he had, within the same period, sent written notice of such intention to the said warrantor."
6. The aforesaid provision of law provides a valid defence to the person in whose possession substandard drug is found available for sale. The petitioner who was found in possession of certified substandard drug was served with a notice to which he has furnished reply within the prescribed time limit and has not only furnished all the details of the purchase of drug in question but has also provided full description of the warranty. The reply was further verified through reply submitted by Sh. Muhammad Anwar his warrantor. In view of the proved facts on record the Drug Inspector had erred under the law to send the petitioner for trial, because facts admitted on record need not be proved. The Chairman Drug Court has issued process against the petitioner without applying his independent judicious mind to the facts and circumstances of the case. The refusal to grant relief to the petitioner under section 265-K of the Cr.P.C. Is not based on a valid ground as non-appearance of the warrantor as co-accused is no ground for refusal to grant the requested relief. It is for the law-enforcing agency to execute process on the absentee co-accused and failure on their part would not deprive the petitioner as under trial accused to seek redressal under section 265-K of the Cr.P.C.
7. The Hon'ble Supreme Court of Pakistan in Miraj Khan v. Gul Ahmad and 3 others (2000 SCM R 122) has laid down the following dictum regarding exercising powers under sections 249-A or 265-K of the Cr.P.C.-- "The main consideration to be kept in view would be whether the continuance of the proceedings before trial Court would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the present case are scrutinized on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned F.I.R. Would be sheer wastage of time."
8. As noted earlier the petitioner has explained his innocence by producing not only the required documents but has also furnished the details of the, warranty, which was sufficient explanation in terms of section 32(3) of the Drugs Act, 1976.
9. In view of the admitted facts and documents available on record there is no possibility of awarding conviction to the petitioner and the proceedings in the trial Court appears to be a futile exercise. C Section 265-K of the Cr.P.C. Provides a remedy to an under trial accused to seek D acquittal on the basis of available record. The prosecution cannot establish a better case than the available record even if they are allowed to establish the guilt of the petitioner punishable under section 27 of the Act ibid.
10. In view of the aforesaid discussion while setting aside the impugned order dated 19-4-2005 I accept the petition in hand and allow the application of the petitioner submitted in the trial Court under section 265-K Cr.P.C. And acquit the petitioner from the charge against him. The trial Court shall proceed against the co-accused of the petitioner namely Sh. Muhammad Anwar and Rizwan Ahmad warrantors whose full addresses are given in the compliant by the Provincial Drug Inspector.
Revision .