KARAM ELAHEE CHAUHAN, J. The petitioner Abdul Hafeez and his brother Muhammad Azarn were tried by the Drug Court for Punjab, and having been found guilty were convicted for an offence under section 27 of the Drugs Act XXXI of 1976 (hereinafter called the Act) and sentenced to rigorous imprisonment of 6 months and 3 months as per its judgment and order dated 24-1-1979 respectively.
2 Both the accused filed a joint appeal being Criminal Appeal No. 194 of 1979, which was accepted qua Muhammad Azam whose conviction and sentence were set aside and who was consequently acquitted. However, as regards Abdul Hafeez the present petitioner, the High Court not only rejected his appeal but also after issuing him a regular notice of enhancement under section 435/439 of the Code of Criminal Procedure (Act V of 1898) and after duly hearing him enhanced his sentence to 3 years' rigorous imprisonment vide its judgment dated 9-2-1981.
3. The petitioner has now come up in a petition for special leave to appeal against the same to this Court. We have heard the learned counsel for the petitioner and the learned Advocate-General (Punjab) who on notice issued to him in Court appeared in response thereto for the State.
4. The first point argued by the learned counsel for the petitioner was that in the Drugs Act no doubt there was a provision as contained in sub--section (7) of section 31 which provided for an appeal against a sentence passed by a Drug Court, to the High Court, but there was no express provision providing for or bestowing a revisional jurisdiction on the High Court, with the result, that in this case the High Court, had rio jurisdiction or authority to enhance the petitioner's sentence in his own appeal, and as such, the order of the High Court in this respect was nullity and liable to be set aside. It was further submitted that by bestowing an appellate jurisdiction and- at the same time not bestowing any other or to be more precise a revisional jurisdiction, by implication it meant that the revisional jurisdiction of the High Court had intentionally been excluded.
5. The contention has no merit. Section 435 of the Criminal Procedure Code says that the High Court (to put in broad words) will have a revisional jurisdiction against orders of "inferior criminal Courts". The word "inferior" here means judicially inferior Nobin Kristo Mookerjee v. Russick Lall Laha (1 L R 10 Cal. 269). It is to point out that a Court whose orders are subject to appeal to another independent and separate Court, is in that particular sense, inferior to the appellate Court. It will be worthwhile to mention here that in the Criminal Procedure Code of 1872, in the corresponding section 295, the words used were "any Court subordinate to such Court or Magistrate". It appears to unreasonable to suppose that this new expression has been substituted without any definite object, and the obvious conclusion which can legitimately be drawn is, that it refers to a Court over which the High Court proceeding under section 435, has appellate jurisdiction. From the above principle it is further evident that there may be inferiority without subordination but there cannot be subordination without inferiority. The epithet "inferior" seems to have been used simply in order to avoid the use of "subordinate" on account of the special limitation of the latter word which would prevent the superior Court from looking into certain cases arising beyond the line of "subordina--petition" to it; which yet might properly be examined for the purpose of as order under sections 436 and 437 or reference under section 438, and then by High Court under section 439. It is to keep the hands of the High Court quite free in dealing with a case in its ultimate stage of revision etc. That expression "inferior" has been substituted for the word "subordinate". In that context, therefore, when in the manner aforesaid, a Drug Court has been made subject to appellate jurisdiction of the High Court and in that sense inferior to the High Court, the latter could exercise revisional jurisdiction against its order and proceedings as laid down in sections 435/439, Cr. P. C. In other words once having made the Drug Court, in that manner judicially inferior to the High Court, there was no necessity of duplicating the matte over again by expressly providing for a revisional jurisdiction of the High Court; because, the same already inhered in the status and position I which the Drug Court stood to the High Court. It is well settled that an appeal is a complaint to a superior body of any injustice done or error committed by an inferior one with a view to its reversion or correction etc. From that point of view also the Drug Court being subject to the appellate jurisdiction of the High Court is an "inferior criminal Court" whose orders and proceedings will be revisable by it under section 435.
6. The next point argued was that the phrase "inferior criminal Court" has reference only to the criminal Courts established under the Criminal Procedure Code and if any criminal Court is established under any other or special law the same would not fall within the ambit of section 435/439 and its proceedings and orders will not be revisable by the High Court. The contention has no merit and at this place we may reproduce section 6 which occurs in Part II, Chapter II of the Cr.
P. C. And reads as follows:-- "PART II-Constitution and Powers of Criminal Courts and Offices CHAPTER II--Of the Constitution of Criminal Court and Offices A-Classes of Criminal Courts Section 6.-Classes of Criminal Courts.-Besides the High Courts and th< Courts constituted under any law other than this Code for the time being in force, there shall be five classes of criminal Court it (Pakistan), namely:-
(i) Courts of Session;
(iii) Magistrates of the first class:
(iv) Magistrates of the second class:
(v) Magistrates of the third class."
A perusal of the above will show that the classes of the criminal Courts as given in section 6 are not exhaustive, because, it contemplates that suchl Courts may as well be "constituted under any law other than this Code".' This may be read with Article 175 of the Constitution of 1973, which is headed as "Establishment and jurisdiction of Courts" and states that (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
Combined effect of these two provisions is that "criminal Courts" are not necessarily only those which are mentioned in section 6 of the Criminal Procedure Code, but this term will also include such other criminal Courts which are constituted under any other law. Thus--
(i) the Court of a Municipal Magistrate of Calcutta was held to be a "criminal Court" in Abdoola Haroon c$ Co. v. Corporation of Calcutta AIR 1950 Cal. 36 and Ram Gopal Goenka v. Corporation of Calcutta AIR 1925 Cal. 1251.
(ii) the Court of the village headman under the Burma Village Act III of 1898 was held to be a criminal Court in Naga E: v. King-Emperor AIR 1924 Rang. 23;
(iii) the Court of a village Panchayat constituted under U. P. Village Panchayat Act VI of 1920 was held to be a criminal Court in Kamlapati Panth and others v. Emperor AIR 1926 All. 27; and
(iv) the Court of a village Panchayat constituted under the Punjab Village Panchayat Act II of 1939, was held as a criminal Court in Dhirjoo v. Kamna and another AIR 1950 Hima Pra. 40.
That the constitution of criminal Courts is not confined and restricted to such Courts as are mentioned in Cr. P. C. Is further clear from the fact that the words used in section 435 are "any inferior criminal Court", and the word "any" as is well known is not a word of limitation but of enlargement of the scope of the word next following it which means that it covers all types of criminal Courts constituted under any other law as well. For the general proposition that the power to make laws includes the power to enforcing their observance by creating Courts or Tribunals of justice, see Mirza Gulzar Beg v. The Station House Officer, Railway Police and others (1), and which we may add, will embrace the power, to create Courts of various types including "criminal Courts".
7. Examined in the light of the above, it is clear, that a Drug Court is also a criminal Court. It is established under section 31(1) of the Act. According to subsection (4) of that section it "shall have all the powers conferred by the Code of Criminal Procedure on a Court of Session exercising original jurisdiction". As per subsection (6), it "shall in all matters with respect to which no procedure has been prescribed by this Act follow the procedure prescribed by the Criminal Procedure Code for the trial of summons case by Magistrates." According to subsection (7) "a person sentenced by a Drug Court may prefer an appeal to a Bench of the High Court consisting of not less than two judges within thirty days of the judgement."All these provisions leave no room for doubt that the drug Court is a "Court" and is so--designatedby the legislature itself, and from the nature of the duties which it performs, to be more precise, it is a "criminal Court" within the contemplation of section 435, Cr. P. C.
8. It was then argued that orders of a Drug Court being "final" under section 39 of the Act, the same cannot be subjected to the revisional jurisdiction of the High Court, though they may be subject to its appellate jurisdiction. This argument is being raised at this juncture on the word "final" as used in the aforesaid section. The contention has no force inasmuch as it does not take into consideration the whole context, and the language deployed in the section which states that "save as otherwise expressly provided in this Act, every order passed by a Drug Court . . . . Under this Act shall be final and shall not be called in question by or before any Court or other authority", This will show that the finality attached to the order of the Drug Court, it may be emphasised, is subject to any other provision which may provide otherwise, and that provision in the instant case is the incident of this Court being inferior to the High Court by virtue of its orders, having already been made appealable thereto, by subsection (7) of section 31. The effect of this incident, is to be seen further in the light of section 2 of the Act, which is headed as "Application of other laws not barred" and which lays down that the "provisions of this Act, shall be in addition to, and in derogation of the Dangerous Drugs Act, 1930 (II of 1930), and any other law for the time being in force" which means that the Drug Court having been made inferior to the High Court, the provisions of this Act are to be considered not in derogation of the aforesaid incident of inferiority and its natural and legal consequences as contemplated in section 435 of the Cr. P. C. In other words, and to be more precise for the purpose of the present discussion, due to that status of its inferiority, sections 435 and 439 of the Cr. P. C. Will be fully attracted to it. The word "final" therefore is to be read in this context and not in any other manner. It may be observed that the legislation after having so expressly fixed the aforesaid inferior status of the Drug Court, and after having clarified that the provisions of the Drugs Act are not to be read in derogation of any other law which may be applicable by virtue of the aforesaid status, there remains no scope for doubting the existence of the revisional jurisdiction in the High Court against its orders. The result is that looked from whatever angle, the conclusion is inevitable that no provision of the Drugs Act ousts the revisional jurisdiction of the High Court (and rather points -to ` the contrary as discussed above) and the use of the word "final" does not detract anything from the same in the context above explained. The cumulative effect of all the above provisions and the discussion is that the High Court in cases under the Drugs Act is simultaneously a Court of appeal and revision and can, not only, exercise appellate powers but also, those under section 439 of the Cr. P. C. And can enhance sentence passed by, the inferior Court viz. The' Drug Court.
9. The next point argued was that the report of the Government Analyst on the basis of which it was held by the Courts below that the petitioner had stored for sale and was selling a spurious drug viz. Tetracycline Pediatric Powder was not comprehensive in proving that the Drug recovered from the petitioner was in fact spurious. It may be mentioned that a Drug which purported to be a particular Drug but does not contain its active ingredients is a spurious drug. The report of the Government analyst proved that the Drug Tetracycline Pediatric Powder which was kept in store for sale and was sold by the petitioner did not contain the relevant ingredients but rather contained kaolin and coco powder. The petitioner, at the time the sample was taken was given a set of that sample but did not prove by leading an evidence that the Drug contained the necessary components and was genuine and not spurious. In this state of affairs the argument raised, lose all force.
10. The last point argued was that in the overall circumstances of the case there was no justification for the High Court to enhance the sentence of the petitioner. In that respect we would like to refer to section 27 of the Act which deals with "Penalties" and so far as relevant for our case reads as follows: "(1) Whoever himself or by any other person on his behalf
(a) exports, imports manufactures for sale or sells any spurious drug or any drug which is-not registered;
(b) manufactures for sale any drug without a licence; or
(c) imports without licence any drug for the import of which a licence is required; shall be punishable with imprisonment for a term which shall not be less than three years or more than ten years and with fine which may extend to one lakh rupees: Provided that the Drug Court may, for any special reasons to be recorded, award a sentence of imprisonment for a term of less than three years.
(2) : : : . .
(3) :
(4) . , This will show that the minimum sentence in cases of this type as prescribed by law, is of 3 years though for special reasons in any particular case it may be lesser. Now in the instant case the reason given by the Drug Court for inflicting the lesser sentence was that the petitioner had purchased the relevant drug (Tetracycline Pediatric Powder) from a firm known as Messrs Lyallpur Medicine Traders, Lyallpur. However, the said firm did not own that supply and the Drug Court considered that the petitioner had probably been. Entrapped by that firm, because, in the relevant invoice/bill/voucher of that firm though the present medicine did figure but its batch number was missing. The aforesaid firm did not own even the very entry of this drug in that invoice. In these circumstances, the question of any entrapping did not arise, because, had it been so, the case would then have been rather of acquittal and not of lesser sentence. As factually the assumption raised by the Drug Court was baseless, therefore, the High Court finding no sufficient cause enhanced the sentence, and even before us the learned counsel could not point out from the record the existence of any other sufficient cause. In these circumstances, we are constrained to hold that the order of the High Court which does not suffer from any legal or factual mistake calls for no inter--ference by this Court.
11. The result is that this petition has no merit and is dismissed hereby.