KARAM ELAHES CHAUHAN, J.-According to the prosecution, a Drug Inspector seized on 11th April 1975, under section 22 of the Drugs Act XXIII of 1940 (hereinafter called the Act) certain quantity and samples of two drug (Ampiclox Injunction 500 m.g. Batch Nos. 59/2 and 75 m.g. Batch No. 58/2) which had been supplied by Beecham Pakistan Limited. Lahore-(on supply from the Karachi Office who in turn had received the same from the Beecham Research Laboratories, Singapur)-to the Drug Store, Services Hospital, Lahore. On 26-4-1975, he reported the conduct of this raid to the Magistrate/Assistant Commissioner, Lahore and solicited permission under section 25(3)(b) of the Act to keep the seized stock in his custody, apparently for getting them properly checked and analysed from the Laboratory, etc. The permission was granted on 26/28-4-1975.
2. The Drug Inspector had also lodged F. I. R. Being No. 518/75 with the Police Station, Mozang Chungi, Lahore on 11-4-1973, i.e. the date of the raid.
The samples were then sent to the Laboratory and on its report that the goods were not in specified formula, the Drug Inspector, submitted a formal complaint in the Court of the Assistant Commissioner/Magistrate on 29-10-1975, along with the police challan file which also was attached thereto. The complaint is contained at pages 1-2 of the paper book and pages 7-8 of the trial Court file. It reads as follows :-- "Complaint No. 449//Beecham D. J.Dated 20-10-75.
From Inspector of Drugs Lahore City & Cantt., Health Directorate, Cooper Road, Lahore.
In the Court of Assistant Commissioner, Lahore (Magistrate 1st Class).
Complaint under the Drugs Act, 1940 and Drugs Rule, 1958.
State versus
(1) S. T. M. Tirimzi, Incharge Beecham (Pak.) Ltd., Patiala Ground, Lahore.
(2) Javaid Ahmad Qadusi, Sale Manager Beecham (Pak.) Ltd., 94-Edh Landhi, Karachi.
(3) Mahmood Ahmad Chaudhry General Manager, Beecham (Pak.) Ltd. 94-Deh Landhi, Karachi.
The petition of the undersigned most respectfully sheweth that :-
(1) The petitioner as Inspector appointed by the Provincial Government under section 21 of, the Drugs Act, 1940, took sample(s) of the follow--ing drugs on 12-4-1975, from the premises of Drug Store Services Hospital, Lahore, under section 25 of the Dcugs Act, 1940.
(1) Ampiclox Injunction 500 m.g. Batch No. 59/2.
(2) Ampiclox Injection 75 m.g. Batch No. 58/2.
(3) Both above manufactured by Beecham Research Laboratories. Singapur.
After giving an intimation on Form 17 to the person/firm from whom sample(s) is/are taken, that sample(s) was/were being of the sample(s) to the Government Analyst for the purpose of test analysis under the provision of subsection (4) of section 23 of the Drugs Act, 1940.
(2) The certificate of Government Analyst is attached herewith. It dec--lares that the samples) does not conform to the specified standard as prescribed in the formulas-
(3) Messrs Services Hospital, Lahore purchased this medicine from Beecham (Pak.) Ltd., Patiala Ground, Lahore, vide Bill No. 5th/21/2/75 dated 25-3-1975.
(4) He is an possession/in possession of invoice warranty as required under Drugs Act, 1940.
The petitioner prays that as Messrs Beecham (Pak.) Ltd. Has/have com--mitted an offence, under section 18 of the Drugs Act, 1940, action may kindly be taken against him/them under section 27 and 28 of the Act: (Sd.)
Dated 29-10-1975.Drug Inspector, Lahore witness :City & Cantt.
Same is described(Shops) Health Direc--- in the challan form."torate Punjab.
4. The learned trial Court on 12-11-1975, took cognizance of the case and directed issuance of the relevant process against the accused now respon--dents herein.
5. The accused filed a criminal miscellaneous application bearing No. 450-Q/76 under section 561- A of the Code of Criminal Procedure (Act V of 1898), for quashing the proceedings, which was accepted by the High Court on 17-11-1976, on the ground, that the prosecution in this case had not been instituted in Court by the Drug Inspector as required under section 32 of the Act and, therefore, the case could not have been processed further.
6. The State/complainant have now come up in appeal to this Court against the aforesaid order by special leave which was granted on 13-9-1977 to consider the above-mentioned finding of the High Court.
7. We have heard the learned counsel for the parties and have gone through the record. We must say that we are unable to sustain the view and the order of the High Court, because, as it is clear front the complain above reproduced, the case had been formally and factually instituted by the] Drug Inspector and not the Police as assumed by the High Court. A perusal of the complaint will show that (i) it is titled, headed and numbered by the Drug Inspector as a complaint ; (ii) it is addressed to the Assistant Com--missioner/Magistrate ; (iii) it mentions the date of the raid ; (iv) the contents of the goods seized during the raid ; (v) it States that according to the certificate of the Government Analyst the goods do not confirm to the specified standard as prescribed in the relevant formula ; (vi) these goods were supplied by the respondents to the Services Hospital, Lahore if vide Bill No. 5th/21/2/1975. Dated 25-3-1975, and that (vii) the respondents committed an offence under section 18 of the Act and action may be taken against them under sections 27 and 28 of the Act. The complaint makes mention of "witnesses" and states that "Same as described in the challan form". A perusal of the challan from similarly shows that it was directed to be put in Court by the Drug Inspector on 29-10-19'75, and constituted as an enclosure of the complaint. In these circumstances. To suggest that the prosecution in this case was not "instituted" by the Drug Inspector as required under section 32 of the Act is not correct and the finding and view of the High Court to the contrary which is based on omission to consider the aforesaid material and aspect of the case cannot be sus--tained.
When confronted with this situation learned counsel for the respondents referred to Messrs Nawabsons Laboratories Ltd., Lahore v. The Superintendent of Police, Federal Investigation Agency and another (1), for the proposition that a prosecution instituted by Police in Court was not a proper institution, and that a mere counter signature of the Drug Inspector on the challan report of the police was no "institution" in the eye of law as it did not indicate a conscious application of mind by the Drug Inspector himself. This case has no relevancy to the facts and the circumstances of the present case, because, from what has been stated above here the Drug Inspector did act quite conscientiously as is apparent from his complaint detailed above.
9. Even otherwise the mere fact that there is a countersignature that by itself is no proof, that the countersigning officer had not applied his mind to the report or the order-(as the case may be)- which he may have in any case countersigned and each case will depend on .Its own individual facts. In the instant case the endorsement on the challan made by the Drug Inspector on 29-10- 1975, which states that "Returned after completion of their challan for further necessary action in the Court which is attached with l paper"-when read with the detailed challan drafted and compiled by him clearly shows that he had done all this with full application of his own independent mind.
10. The resuit is that this appeal is accepted. The order of the High Court dated 17-11-1976, is set aside and the case is remanded to the learned trial Court for further proceedings in accordance with law. There shall be no order as to costs.
(1) PLD 1976 Lab, 813