' MANZOOR HUSSAIN SIAL, J.-The appellant, a proprietor of Usman Medical Store at Khudian, a small town in District Kasur, was tried under section 18(1) read with section 27 of the Drugs Act, 1940, by the Drug Court, Punjab, Lahore. He was convicted on 18-1-1977 and sentenced to undergo rigorous imprisonment for six months and a fine of Rs, 500 or in default to suffer one month's rigorous imprisonment. The appellant assailed the order of his conviction by means of this appeal, under section 31(7) of the Drugs Act, 1976.
2. The relevant facts of the case are that on 27-11-1975 Bashir Ahmad Rana, Drug Inspector, visited the shop of the appellant and obtained sample of drug called chloramphenicol palmitate oral suspension, manufactured by Schazoo Laboratories, Lahore. The Government Analyst, after examination of the drug, found that it did not conform to the standard quality. The reason given was that the contents of chloramphenicol palmitate were 155.4% whereas the anti-biotic element was not required to be more than 115%. This report was communicated to the appellant on 9-3- 1976 and he was called upon to produce warranty or the invoice. The appellant failed to give satisfactory reply, which led the Quality Control Board to authorize the Drug Inspector, Lahore Division, to take necessary legal action against him. Consequently, on 26th June, 1976, Ghulam Nabi, Drug Inspector, lodged complaint against the appellant.
3. The precise charge against the appellant was that on 27th November, 1975, he was found in possession of chlo rawphenicol palmitate ready for sale in his shop which did not conform to the standard specification and thus committed an offence punishable under clause (e) of section 18 read with section 27 of the Drugs Act, 1940.
4. The appellant in his statement recorded under section 342, Cr. P. C. Admitted the taking of the sample of the drug from his shop and his inability to produce warranty. In his written statement Exh.
D. A. A., however, he explained that the drug was purchased by him from Muslim Medical Hall, Chunian, run by Abdus Sattar and Mohammad Abdullah and that he was not given the requisite warranty at the time of sale, nor furnished to him thereafter, but was put off by them on one pretext or the other. He, however, produced Mohammad Abdullah and Abdus Sattar in his defence.
5. The learned Drug Court did not accept his version and relying on. The prosecution evidence convicted and sentenced him, as aforesaid.
6. Learned counsel for the appellant contended that the Drug Court constituted under the Drugs Act, 1976 had no jurisdiction to try and convict the appellant for the offence committed under the provisions of the Drugs Act, 1940. He pointed out that the alleged offence was committed in the year 1975. The Drugs Act, 1940 was repealed on 18th May, 1976, by the Drugs Ordinance, 1976, which subsequently was replaced by the Drugs Act, 1976. He further submitted that the complaint against the appellant was not filed during the enforcement of the Drugs Act, 1940. He maintained that the new law had no retrospective operation and for that matter, the Drug Court constituted under the Drugs Act, 1976, had no jurisdiction to try the offence committed during the operation of the repealed law. He also argued that the trial Court had also committed grave error in not distinguishing between chloramphenicol and chloram phenical palmitate. He relied on section 19(3)(a) of the Drugs Act, 1940, and submitted that the appellant had no mens rea to sell sub- standard drug. It was also submitted that the appellant was neither manufacturer of the drug nor agent for distribution thereof and could not learn with reasonable diligence that the drug in any way contravened the prescribed standard specification.
7. On the other hand, learned counsel for the State, opposing the appeal contended that the appellant did not . Object to the jurisdiction of the Drug Court at the trial and, therefore, was estopped from raising the point of jurisdiction after his conviction, before this Court.
8. Dealing with the first objection of the State counsel, we find that his argument overlooks the fact that the appellant in this case was accused-defendant in the proceedings before the Drug Court and that the proceedings being criminal in nature, would not estop the appellant from pleading the bar of jurisdiction. The question of estoppel was considered by their Lordships of the Supreme Court in Mohammad Afzal v. Board of Revenue (1) wherein the petitioner challenged the order of the Board of Revenue on the ground that it was without jurisdiction. He had not raised this plea before the Board of Revenue where he was respondent. In allowing that petition Cornelius, C. J.
Observed at page 316: "Like, the law and order, administration, the Revenue Administration in its impact on the cultivator has all pervading authority, which the individual cannot be expected to confront on the allegation of illegality on his own strength. The usual and wise course, that he takes, is to submit for the time being, and seek his redress through the more powerful agency of the superior Courts. By mere submission in the capacity of a respondent to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."
' This question was also considered in Khena Ram v. Commissioner, F. C. R. (2) wherein the petitioner had challenged his conviction by the F. C. R. Court and the contention was, on various grounds, that the respondent's order was without jurisdiction. Relying on Mohammad Afzal's case, it was held that Khena Ram was not estopped from challenging the jurisdiction of the F. C. R. Court merely because he had not advanced the objection before those Tribunals.
9. We are therefore, of the view that the proceedings under the Drugs Act, being criminal in nature, the appellant can never be estopped from pleading the bar of jurisdiction.
10. In order to appreciate the legal objection, raised by the learned counsel for the appellant, regarding the jurisdiction of the Drug Court constituted under the Act, 1976 to try the appellant, it is necessary to examine the relevant and corresponding provisions of the two statutes the Drugs Act, 1940 and the Drugs Act, 1976. Chapter IV of the Drugs Act, 1940 related to manufacture, sale and distribution of drugs. Section 16 thereof provided : "The expression "standard quality" would means the drug which com-
(1) PLD 1967 SC 314 (2) PLD 1969 Quetta 24 plies with the standard set out in the schedule, meaning thereby that any drug which would not conform to the standard set out in the schedule would be considered not according to the standard quality."
' Section 18 provided "any person who either himself or by any other person sold any drug which was not of standard quality would be liable to penal action under section 27 and the punishment may extend to three years, or with fine, or with both." Section 32 of the Act provided that "no Court inferior to that of a Magistrate of the First Class shall try an offence punishable under the Chapter.
11. Whereas the Drugs Act, 1976 was promulgated and enforced on 18th May, 1976, with immediate effect. By virtue of section 45 it repealed the Drugs Act, 1940, without saving clause or provision for its retrospective operation. Section 31 of the Act provided for constitution of the Drug Court which would consist of three members presided over by a member, who was, or had been or qualified to be a Judge of the High Court. Under subsection (7) of this section appeal against an order of acquittal would lie to a Bench of the High Court consisting of not less than two Judges. The territorial jurisdiction of Drug Court and the class of cases in respect of which the jurisdiction was to be exercised under the Act would be specified in a notification. Section 27 provided for penalties for contravention of the provisions of this Act and whoever contravened any provision of this Act, or any rule made thereunder, would be liable to imprisonment which may extend to five years and with fine which may extend upto fifty thousand of rupees or with both, and if the offence was repeated by the convict, then the punishment was imprisonment not less than five years and fine to extend upto two lacs of rupees, as specified in section 28 of the Act. The Drug Court. Constituted under this Act would have exclusive jurisdiction for trial of offences under this Act.
12. A survey of the corresponding sections in the aforementioned statues makes it clear that the forum provided under the Drugs Act, 1976 is entirely different from that provided under the old Act.
Similarly, a person who was tried under the old Act had more remedies than the person to be tried under the new Act. The punishment provided under the old Act was three years with fine to be imposed by a Magistrate of the First Class, according to his competency.
13. The Legislature did not provide a saving clause under the Drugs Act, 1976 repealing the Drugs Act, 1940 and the original enactment was substituted by a new enactment. It would, therefore imply the application of section 6 of the General Clauses. Act. Clause (e) of section 6 reads : "6. Effect of repeal.-Where this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment hereto made or hereafter to be made then unless a different intention appears the repeal shall not
(a) to (d) .
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed."
' It is thus evident that any remedy in respect of any right, liability or penalty could be instituted, continued or enforced.
14. The occurrence in the instant case admittedly took place on 27-11-1975. No action was taken against the appellant until lodging of the complaint on 26th June, 1976. The complaint was in regard to an offence allegedly committed during the enforcement of the old Act, but was lodged after its repeal in a Court constituted under section 31 of the Drugs Act, 1976.
15. The situation obtaining in this case, therefore, inevitably gives rise to two points for consideration : (1) Whether the vested right as contemplated under section 6 of the General Clauses Act had accrued in favour of the State at the time of the repeal of the Drugs Act, 1940, and (2) whether the forum constituted under the Drugs Act, 1976, would have retrospective effect to try offences committed under the provisions of the Drugs Act; 1940.
16. So far as the first question is concerned, it is clear that the object of enacting section 6 of the General Clauses Act was to protect rights and liabilities already accrued or incurred under the repealed law. The words "right accrued" occurring in section 6 of the General Clauses Act was construed by the Privy Council in Abbot v. Minister for Law (1) and it was held that the mere right existing on the date of the repealing statute without any act done by an individual towards availing himself of that right cannot appropriately be deemed a "right accrued" within the meaning of the enactment. In the instant case, the complaint was not made regarding the alleged offence committed on 27-11-1975 before any Magistrate competent to try the offence under section 18 read with section 27 of the Drugs Act, 1940. Therefore, a vested right or incurred liability, as envisaged under section 6 of the General Clauses Act could not be deemed to have accrued for enforcing the same under the repealing enactment.
17. As regards the second point, I. e. Whether the repealing Act of 1976, would be retrospective in operation so as to affect the accrued rights and liabilities, it would be useful to refer to Maxwell Interpretation of Statutes, 9th Edition, pages 222 and 223 wherein it is mentioned :- "No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair any existing right or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of" either interpretation it ought to be construed as prospective only:- ' Similarly in Gondicalo Hypolito Constancio Noronha v. Damji Devji (2) it was held :- "No statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication."
' Neither the provisions of the Drugs Act, 1976, nor by necessary intendment it could be construed that the Drugs Act, 1976 is retrospective so as to take C cognizance of the offence committed under the repealed Drugs Act, 1940.
(1) 1895 A C 425 (2) PLD 1954 P C 22 ' In another case Salig Ram v. Emperor (1) it was held :- "A statute ordinarily speaks from the date from which it is specified in the Act to come into operation or from the date when it receives assent where such assent is necessary and is prospective in its operation unless it, in clear terms, says that it will have retrospective effect or when such an intention can be unhesitatingly gathered and it is only then that vested rights might be impaired, otherwise vested rights would not be affected."
18. The crucial point involved in this case is whether the forum constituted under the repealing Act could retrospectively take cognizance of cases under the repealed Act. The change of forum by law is always retrospective, because it relates to a matter of procedure. A procedure change brought about by a new law is to be treated as retrospective unless by clear words or necessary intendment it is shown to be prospective. There are, however, cases in which 'even procedural change in form affects the existing rights of the parties and in such a situation retrospective operation cannot be construed. In Alf Din v. Shaukat Ali (1) it was observed by Muhammad Afzal Zullah, J. :- "Whenever the change of forum is in addition to dealing with purely procedure, and it also affects the existing rights of the parties, as to the continuance or culmination of certain proceedings in the existing forums, the change of forum may not be retrospective unless it is made retrospective by clear words used or clear intendment shown in the amending Act. For example, where the remedies, available in the earlier forum or, against the decisions of the earlier forum, are more substantial or are more in number than the remedies provided in or against the decisions of the new forum, the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that, and thus will not be retrospective."
19. The position of the forum provided under the Drugs Act, 1976, as pointed out earlier, would deprive the person convicted of the right of appeal or revision as he had against the order of conviction passed by the earlier forum and also the penalty provided under the Drugs Act, 1940, was less severe than the one provided in the Drugs Act, 1976, which would certainly render the new enactment to be prospective and not retrospective in operation.
20. There is yet another aspect of the case which needs consideration. The provisions of penal enactment are construed strictly and are seldom interpreted and applied against the subjects. The provisions of the Drugs Act, 1976, being penal, if strictly interpreted, will have no retrospectivity in its operation, as there is no specific provision in the Act, nor it would be gathered by necessary intendment.
21. Section 31 of the Drugs Act, 1976, clearly prescribes the limits of jurisdiction of the Drug Court to try cases only arising out of the contravention of the provisions of this Act. It is manifest that the forum provided under the new Act would have exclusive jurisdiction to try offences committed in contravention of the provisions of this Act. The offence in the instant case, having been committed during the operation of the F Drugs Act, 1940 would not confer jurisdiction over the forum constituted
(1) AIR 1943 MI. 26 (2) PLD 1969 Pesh. 62 under the Drugs Act, 1976, to try the appellant and, therefore, the entire trial proceedings had vitiate,' and resulted in incurable irregularity and illegality.
22. In the result, we hold that the tribunal constituted under the Durgs Act, 1976 had no jurisdiction to try the appellant and pass order of his conviction. We accordingly set aside the order of his conviction and sentence passed by the trial Court, accept his appeal and acquit him.