' RIAZAT ALI SAHAR, J.---The appellants were convicted and sentenced by the Drug Court, Sindh at Karachi vide its judgment dated 22-3-2012 for offence punishable under sections 23 (1)(i)(a)(x) of the Drugs Act, 1976 to suffer R.I. For three years and to pay fine of Rs,50,000 each and in default in payment thereof to further suffer R.I. For six months. Benefit of section 382, Cr.P.C. Was extended to the appellants.
The version of the prosecution case: 'The relevant facts of the prosecution case are that on 25-3-2010, complainant Abdul Sattar Soomro filed the Direct Complaint under section 30(1)(b) of Drugs Act, 1976, alleging therein that the complainant was working as Provincial Inspector of Drugs, District Khairpur in Health Department, Government of Sindh. According to the complainant on 22-12-2009, he inspected Messrs Ali Medical Store, situated in Village Pir Wassan, Taluka Thari Mirwah, District Khairpur in presence of accused Muhammad Tariq son of Qadir Bukhsh and found eight different kinds of drugs including drugs of National Program for Family Health (Government Property) and physicians samples (not for sale), which were stocked and exhibited for sale in the Medical Store, he demanded the bills/invoices with warrantees of the drugs from accused Muhammad Tariq, who failed to produce the same as required under section 23(1)(i) of the Drugs Act, the Provincial Quality Control Board, Sindh regarding the seizure of above mentioned drugs and also requested for its custody as required under section 19(5)(b) of the said Act, vide Letter No,PID/KHP/576/78. On the same day the complainant sent notice under section 21 of Drugs Act, 1976 vide Office Letter No,PID/KHP/572/75 to the accused Muhammad Tariq for collecting the names and addresses of the persons from whom they had acquired/ purchased the drugs in question and their bills/invoices along with warranties, but they failed to disclose/produce the same. On 19-1-2010 the complainant received a letter bearing No,SQCB/17 dated 12-1-2010 from the Provincial Quality Control Board, Sindh, Karachi wherein the complainant has been authorized to keep the seized stock under the custody and charge. The Provincial Quality Control Board, Karachi in exercise of the powers under provision of clause (b) of subsection (5) of section 11 of Drugs Act, 1976 specified the class of cases and authorized all the Provincial Inspectors of Drugs to submit complaint directly before the Drug Court, Sindh Karachi with consultation to District Deputy Attorney of the area vide letter No,SQCB(6)/2953/83 dated 30-12-2005. He further alleged that the accused Nos.2, 3 and 4 namely Fahim Khan son of Saeed Iqbal, Ghulam Nabi son of Qaiser Khan and Muhammad Tariq son of Qadir Bukhsh were the Proprietor, qualified person and sales incharge of Messrs Ali Medical Store, who stocked and exhibited the drugs for sale containing eight different kinds of drugs including the drugs of National Program for Family Health (Government Property) and physician sample (not for sale) as mentioned above. Therefore, they are punishable under the provisions of section 27(4) of the said Act.
' On 25-3-2012, the trial Court, issued bailable warrants against the appellants/accused after taking cognizance of the offence against them.
' The trial Court after supplying the copies of papers to the accused, framed the charge against them under section 242, Cr.P.C. For offence punishable under section 23 (1)(a)(x) and 23(1)(i) of Drugs Act, 1976 as Exh.2, to which mashirnama at Exh.3/B, letter to Chairman, Quality Control Board for custody of the drugs at Exh.3/C, letter to Messrs Ali Medical Store for production of bill warranty of the drugs as 3/D, letter received from Quality Control Board, Sindh at 3/E, notification dated 30- 12-2005 at Exh.3/F, copy of memo of complaint at 3/G. Prosecution also examined PW-2 Sardar Khan Wassan at Exh.4, P.W.3 Mir Ahsan Raza at Exh.5.
' Statement of appellants/accused Fahim Khan, Ghulam Nabi and Muhammad Tariq under section 342, Cr.P.C. Were recorded by the trial Court at Exhs.6, 7 and 8 respectively, wherein they denied all the evidence of prosecution witnesses.
' After hearing the parties, learned trial Court convicted and sentenced accused Nos.2 to 3 (hereinafter called as "appellants") for offence punishable under section 23 (1)(i)(a)(x) of the Drugs Act, 1976 to suffer R.I. For three years and imposed them a fine of Rs,50,000 each and in default in payment thereof to further suffer R.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to them.
' We have heard the learned counsel for the appellants and the learned Prosecutor General for the State at great length, crux of their submissions are as under:-- Submissions of learned counsel for the appellants:- The learned trial Court passed the judgment in a hasty manner without consideration of the fact and evidence of the case.
The alleged drugs neither spurious nor adulterated.
The learned trial Court while deciding the present case violated the provision of seizure as prescribed under subsection (1), (c) of section 18 of Drugs Act, 1976.
The learned trial Court did not consider the contradictory statements of P.Ws. Specifically time and duration of the alleged(sic).
Learned Prosecutor General for the State contended that there is no discrepancy on the part of prosecution at all and the prosecution is, succeeded to prove its case beyond any shadow of reasonable doubt.
There is no material contradiction in the evidence of P.Ws.
The Proprietor and License Holder of Medical Store is also involved in the offence, therefore, the license of the Medical Store may be cancelled.
' Though the punishment has been provided under the law to the extent of five years, in fact the nature of offence is very heinous and is against the society and precious life of innocent people, but the trial court has already awarded lesser punishment, therefore, no lenient view may be taken.
Discussion and opinion formation:--
2. We have carefully considered the respective submissions of learned counsel for the appellants, learned Prosecutor General for the State and also examined the record meticulously.
3. It appears that during recording the evidence of complainant, he stated that on the day of inspection, he recovered the drugs of National Program for Family Health (Government property) and physician sample (not for sale) from Ali Medical Store (place of incident) which were exhibited in the store for sale. It is admitted fact that the inspection of complainant at the Medical store (place of incident) has not been denied by all three appellants, which appears that appellants Nos.2 and 3 being proprietor and license holder were also in knowledge that drugs in question were available in the medical store for sale and detected by the complainant, even they did not challenge the proceedings; initiated by the complainant, before any competent forum prior to filing Direct Complaint.
4. The version of the prosecution is corroborated with ocular evidence, statements under section 342, Cr.P.C. Of accused/appellants along with circumstantial evidence including the report of Provincial Quality Control Board, Sindh at Karachi, and the same has been proved.
5. The relevant portions of statements under section 342, Cr.P.C., of appellants are reproduced hereunder:-- Appellant Faheem Khan Q. You have heard the prosecution evidence. It has come in evidence that you are the Proprietor of Messrs Ali Medical Store, Village Pir Wassan, Taluka Thari Mirwah, District Khairpur. What you have to say?
' A. Yes, it is correct.
' Q. It has come in evidence that on 22-12-2009 Drug Inspector Khairpur Mr. Abdul Sattar Soomro inspect the shop premises of Messrs Ali Medical Store, Village Pir Wassan, Taluka Thari Mirwah, District Khairpur, where you were present and seized 8 different kinds of Drugs including the drugs of National Program for family Health Government Property and Physicians samples not for sale as mentioned on Form 3 (Exh.3-A) and Mushirnama (Exh.3-B). What have you to say?
' A. Yes, it is correct. Appellant Ghulam Nabi ' Q. You have heard the prosecution evidence. It has come in evidence that.You are the Qualified person of Messrs Ali Medical Store, Village Pir Wassan, Taluka Thari Mirwah, District Khairpur. What you have to say?
' A. Yes, it is correct. I have licensed (sic) as Qualified person. Appellant Muhammad Tariq ' Q. You have heard the prosecution evidence. It has come in evidence that you are the Sales Incharge of Messrs Ali Medical Store, Village Pir Wassan, Taluka Thari Mirwah, District Khairpur.
What you have to say?
' A. Yes, it is correct. I was the sales in charge of Messrs Ali medical Store.
6. Section 23(1)(c) and (i) of the Drugs Act, 1976 is relevant to reproduce hereunder:-- "23. Import, manufacture and sale of drugs.---(1) No person shall himself or by any other person on his behalf:
(c) sell any drug except under, and in accordance with the condition of a licence issued under this Act;
(i) sell any drug without having a warranty in the prescribed form bearing the name and batch number of the drug issued,--"
7. The record reflects that a letter dated 23-12-2009 (Exh.3-D) was sent to the appellants for seeking bills and warrantees of the drugs in question, but all the appellants failed to provide such documents to the complainant, which shows that the appellants have contravened the provisions of section 23(1)(c) and (i) of the Drugs Act, 1976.
8. The 'letter dated 23-12-2009 was not denied by any of the appellant during the course of trial, which shows that all the appellants have jointly committed offence and comes within the ambit of section 34 of Drugs Act,1976.
9. From the perusal of record it also appears that all the appellants were fully aware of the sale and purchase of drugs in question and they in association to each other committed the above offence, thus their act comes within the purview of section 34 of the Drugs Act, 1976, which is reproduced as under:--- ' Section 34. Offences by companies, etc. ---Where the person guilty of an offence under this Act, is a company, corporation, firm or institution, every director, partner and employee of the company, corporation, firm or institution [with whose knowledge of consent the offence was committed shall be guilty of the offence].
10. In view of the above discussion we are of considered view that prosecution has established its case beyond the shadow of reasonable doubt, therefore, we do not find any merit for consideration in the instant appeal and maintain the conviction and sentence under section 27(4) of Drugs Act, 1976 along with benefit of section 382-B, Cr.P.C. Awarded by the trial Court, Consequently the appeal stands dismissed. Copy of the Judgment; be communicated to the Chairman Quality Control Board, Sindh at Karachi for proceedings under section 41 of Drugs Act, 1976.