' Z. A. CHANNA , J. (CHAIRMAN).-The two accused, who are said to be brothers inter se. Have been charged with being in possession, at their shop in Jacobabad, for the purposes of sale, of two different types of drugs, namely Bet elan tablets and Delta Cortil Tablets, which are stated to be counterfeit drugs, misbranded drugs and sub-standard drugs.
2. The prosecution case, shortly stated, is that on 18th November, 1976, at about 11-00 a. m. Drug Inspector Altaf Hussain, raided the City Medicos Stores, Jacobabad, which is alleged to be owned by accused Gurmukhdas. At the time of the raid, only accused Jagdesh Lai was present. On search of the shop, the Drug Inspector recovered from the store of the shop, which was behind the shop and separated from the front portion of the shop by admirals, 3,945 Betnelan Tablets and 3,290 Delta Cortil Tablets, as they appeared to be spurious. The Inspector, while seeing these tablets, made four portions of the samples seized, as required by section 19 of the Drugs Act, 1976, and also prepared Forms 16 and 17. The drugs in question were subsequently sent to the Central Drugs Laboratory and the ,reports from the said laboratory indicate that the samples of the Betnelan Tablets as well of Delta Cortile Tablets are sub-standard. According to the test reports, the percentage of active agent in the Betnelan Tablets was 60% as against the B. P. Permissible limit of 90% to 110% while the percentage of the active agent in the Delta Cortil Tablets was 83.3% as against the B. P. Permissible limit of 90% to 110%. Reports from the Glaxo Laboratories, the manufacturer of Betnelan Tablets, and of Pfizer Laboratories also were obtained which indicated that the tablets in question were supurious and not manufactured by these laboratories.
3. At the trial of the accused, the prosecution examined Drug Inspector Altaf Hussain and two Mashirs, Rafiq Ahmed and Nasir Jamal, in whose presence the tablets are alleged to have been secured from the shop of the accused. Two other persons were also examined as Court witnesses.
They are, Dr. Mrs. Naqvi, the Chief Analyst of Glaxo Laboratories and Mr. Muhammad Aslam Sheikh, Director, Quality Control, of Pfizer Laboratories. Dr Mrs. Naqvi has testified that she has examined the Betnelan Tablets sent to her by the Inspector of Drugs for examination and according to the tests performed by her in respect of the tablets they are not only sub-standard but spurious, not being manufactured by Glaxo Laboratories. Similarly, Mr. Muhammad Aslam Sheikh has stated that the allegedly Delta Cortile Tablets are spurious and not manufactured by Pfizer Laboratories. He has further testified that he did not find even traces of the active agent in the samples of the Delta Cortil Tablets sent to him. On his attention being invited to the report of the Central Drugs Laboratories regarding estimation of 83.3% of active agent in the Delta Cortile Tablets in question, he was unable to explain the discrepancy between his opinion and that of the Central Drugs Laboratories. He, however, contended that according to his report the sample of Delta Cortil Tablets contained not even traces of the active agent.
4. The defence of the accused is complete denial of the prosecution allegations. Accused Gurmukhdas has stated that he was not even present when the search was carried out. As regards accused Jagdesh Lal, he has submitted that though he was present when the Drug Inspector came to the shop. He has no concern with the shop, as he is not an employee of the shop.
5. Despite the very great discrepancies as to the quantity and peg engage of the active agent in the two drugs in question between the reports on the one hand of the Central Drugs Laboratory and the evidence on the other hand of the Chief Analyst of the Glaxo Laboratories and the Director, Quality Control, of Pfizer Laboratories, it is quite evident that the two drugs in question which have been produced in Court are not only substandard but spurious. The short point, however, which falls to be considered is whether the drugs in question were in possession of the two accused and were seized from their shop as alleged by the prosecution. On this point, there is evidence of the Drug Inspector Altaf Hussain, and the two mashirs, Rafiq Ahmed and Nasir Jamal. No doubt, Drug Inspector Altaf Hussain has testified that a fairly large quantity of Betnelan as well as Delta Cortil tablets were recovered from the shop of the accused, and he is supported on this point by both the mashirs Rafique Ahmed and Nasir Jamal, but their evidence does not carry conviction and we find it difficult to place implicit reliance on the same. Both the mashirs are admittedly not residents of Jacobabad. Rafique Ahmed is a resident of Lahore while Nasir Jamal is a resident of Khairpur, which .Is also at a considerable distance from Jacobabad. Moreover, both mashirs appear to be interested witnesses. Rafique Ahmed is admittedly an employee of Glaxo Laboratories, the manufacturer of Betnelan Tablets. It is quite possible that it was at his instance that the raid on the shop of the accused was organized since he is the Trade Marks Investigator of Glaxo Laboratories.
His visit to Jacobabad on the very day that the shop of the accused was raided is very significant and lends support to this inference. However, even if the raid on the shop of the accused was not initiated at his instance, the fact that he is an interested party tends to throw considerable suspicion not only on the raid but also on the recoveries allegedly made during the raid. The second mashir, Nasir Jamal, is an equally interested witness. He is a salesman at an agency in Khairpur which stocks and sells products of Glaxo Laboratories. We consider his explanation of how he happened to be at Jacobabad at the time of the raid as unsatisfactory. According to him he had gone to Jacobabad to recover some money from a shop in the bazar at Jacobabad but admits that he did not recover this amount.
6. Section 103, Cr. P. C. Provides that searches must be made in the presence of respectable persons of the locality. The two mashirs may be entitled to be called respectable but they certainly are not witnesses of the locality and moreover they are interested persons. Their evidence thus must be looked upon with a great deal of suspicion, since the search was made in contravention of the salutary provisions of section 103, cr. P. C.
7. Even the evidence of these two interested witnesses is of no great assistance to the prosecution case. As already indicated, the recoveries were made from the back portion of the shop which was separated from the front portion by admirals. Both the mashers have admitted that they did not go into the back portion from where the tablets were allegedly recovered. Moreover, P. W. Nasir Jamal has admitted that it was not even possible, from the place where they were standing in the front portion of the shop, to see into the back portion of the shop. In the circumstances, it cannot really be said that the recoveries were made in the presence of the mashirs.
8. Since there is no trustworthy and reliable evidence to indicate that the incriminating tablets were actually recovered from the shop of the accused, it is not necessary for us to examine the other aspects of the case. We would accordingly give the accused the benefit of the reasonable doubt entertained by us on the aforesaid point and both the accused are acquitted.