1. ' Muhammad Ali Abbas petitioner has assailed the legality of order dated 14-2-2013 passed by the learned Chairman Drug Court, Multan whereby application made by the petitioner under section 265-K, Cr.P.C. was dismissed.
2. 2.Succinctly, the facts of the case are that on 11-3-2009 Hassan Haider Shah, Drug Inspector Tehsil Arif Wala, District Pakpattan Sharif inspected the premises of the petitioner in the name and style of Ali Medical Store, situated at Thana Ahmad Yar, Tehsil Arif Wala District Pakpattan Sharif and took sample, of Suspension Biprim Forte Batch No,Y-225 manufactured by Messrs Ankaz Pharmex (Pvt.)
3. Ltd. Plot No,24, Sector 12-A, North Karachi, Industrial Area Karachi and sent the same for analysis to the Government Analyst Punjab Lahore and the Provincial Quality Control Board, Lahore. The Government Analyst Punjab declared the sample sub-standard vide its letter No,9682/DTL dated 28-3-2009. The petitioner challenged the said report before NIH Islamabad, which vide report No,076-P/2009 dated 11-12-2009, declared the same as substandard. Thereafter, the Provincial Quality Control Board Lahore issued notice for personal hearing and granted sanction for the prosecution of the petitioner and formal complaint was filed by the Drug Inspector.
4. 3.The challan was submitted before the Chairman Drug Court, Multan wherein the charge was framed against the petitioner on 9-5-2012 and the case was fixed for recording of evidence when an application under section 265-K, Cr.P.C. was made, which was disallowed vide impugned order dated 14-2-2013. Hence, the present criminal revision petition.
5. 4.Learned counsel for the petitioner has contended that the Provincial Quality Control Board has penalized the petitioner vide order dated 1-10-2012 and recommended for the suspension of the Registration Certificate of the drug Biprim Forte Suspension of Messrs Ankaz Pharmex (Pvt.) Ltd.
6. Karachi, which remained suspended for nine months, therefore, the Provincial Quality Control Board was not competent to grant permission for the prosecution of the petitioner and others; that a person cannot be vexed twice for the same offence, therefore, prosecution before the Drug Court amounts to double jeopardy.
7. 5.On the other hand, learned A.A.G. has put appearance on Court's call and contended that order regarding the suspension of the license was administrative one and the petitioner has not been acquitted from any competent Court of law, therefore, the question of double jeopardy does not arise at all.
8. 6.We have heard the learned counsel for the petitioner and the learned AAG and have also perused the record.
9. 7.Under Section 42 of the Drugs Act, 1976 the registration of any drug can be suspended for a specified period. The said Section is reproduced for ready reference:- "Where any person has been found to have contravened any of the provisions of this Act, or the rules in respect of any registered drug, the Registration Board may, after giving such person an opportunity of being heard, cancel the registration of such drug or suspend such registration for a specified period."
10. 8.It is an admitted fact that registration certificate of Messrs Ankaz Pharmex (Pvt.) Ltd. Karachi was suspended for nine months. Under Section 11 of the Drugs Act, 1976 the Punjab Quality Control Board is competent to scrutinize the reports of the Provincial Inspector in respect of contraventions of this Act and reports of Government Analysts in respect of drugs sent to them by Provincial Inspector for test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports. The Provincial Quality Control Board by exercising the said power, directed the Drug Inspector to prosecute the petitioner under Section 23(v) of the Drugs Act, 1976 for manufacturing, possession and selling the substandard drugs.
11. 9.The contention of the learned counsel for the petitioner is that by imposing penalty of suspension of license and the registration of the petitioner and license of Messrs Ankaz Parmex (Pvt.) Ltd.
12. Karachi further proceedings before the Drug Court amounts to double jeopardy and are in violation of Article 13 of the Constitution of Islamic Republic of. Pakistan 1973. The said Article reads as under:-- "No person--- ' shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself."
10. The principle of double jeopardy has been provided under section 403, Cr.P.C., which reads as under:-- "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237."
13. ' This provision is based on Latin maxim "nemo debet bis vexari pro una et eadem causa (No person should be twice disturbed for the same cause) which led to the development of two common law principles of equity namely, autre fois acquit (acquitted formally) and autrefois convicted (convicted formally). There are following pre-conditions for attracting the provisions of section 403, Cr.P.0 (i)There must have been earlier of the accused seeking protection against second trial for the offence charged; (ii)The facts alleged in the earlier trial were the same sought to be proved in the second prosecution/trial; (iii)The trial must have been conducted by a Court of competent jurisdiction; and (iv)The trial must have ended in a Judgment of conviction or acquittal."
11. Stroud's Judicial Dictionary explains the term prosecution" in the following manner:-- "The 'prosecution' of an action ends with the final judgment therein."
14. ' According to Webster's New International Dictionary (2nd Edition) The word "prosecution" means, inter alia, "the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government as by indictment or information.
15. ' And in the Oxford Dictionary "prosecution" means "the following up, continuing, or carrying out of any action, scheme, or purpose, with a view to its accomplishment or attainment."
12. Admittedly, the petitioner has not been tried for the offence of keeping and selling of the substandard medicines by any competent Court of law. Only charge has been framed in the complaint against him and the evidence is yet to be recorded and the final order of acquittal or conviction is yet to be passed. Therefore, the principle of double jeopardy cannot be said to have been invoked against the petitioner. The order passed under Section 42 ibid regarding the cancellation or suspension of registration of registered drug was an administrative order and the penalty of suspension of registration does not amount to acquittal or conviction of the petitioner and others for the offence allegedly committed by them for manufacturing, keeping and selling the substandard drugs. Therefore, the impugned order is in accordance with law.
16. ' For the foregoing reasons, the impugned order dated 14-2-2013 is hereby maintained and the revision petition stands dismissed in limine.
17. (Sd.)(Sd.)
18. (Muhammad Qasim Khan)(Syed Iftikhar Hussain Shah)
19. JudgeJudge MUHAMMAD QASIM KHAN, J.--I have read the detailed judgment handed down by my learned brother and fully concur with the comprehensive reasoning given in the main order dated 2-4- 2013. However, for further clarity of legal position, I would like to highlight another important aspect that by mere suspending or. cancelling the licence of the manufacturer of drugs, the legal term "double jeopardy" cannot be made applicable while deciding the charge against an indict person by the Drugs Court and penalizing him under Section 27 of the Drugs; Act, 1976. Section 5 of the Act, ibid, in terms deals with regulation of manufacturer of drugs and it provides that licence to a manufacturer of drug shall be regulated according to the conditions as well as procedure, which may be prescribed by Central Licensing Board. Section 7 of the Drugs Act, 1976 provides the conditions where the Registration Board is competent to cancel or suspend the registration.
20. Section 7(11)(c)(d) of the Drugs Act, 1976 are reproduced hereunder for ready reference:- "7. Registration of drugs: (1)
21. (2)
22. (3)
23. (4)
24. (5)
25. (6)
26. (7)
27. (8)
28. (9)
29. (10)
30. (11)If the Registration Board, on the basis of information received or an inquiry conducted by it, is of opinion that:-- (a)
31. (b)
32. (c)there has been a violation of the conditions subject to which a drug was registered; or (d)it is necessary in the public interest so to do; the Registration Board may, after affording to the person on whose application the drug was registered an opportunity of showing cause against the action proposed to be taken, cancel or suspend the registration or specify any further conditions to which the registration shall be subject and inform such person and the Provincial Governments accordingly."
33. ' Rule 12 of the Drugs (Licensing Registering and Advertising) Rules, 1976 also deals with cancellation or suspension of licence and this rule provides that if a licencee did not comply with any of the conditions of the licence or if the licensee violates the provisions of the Ordinance or Rules, the Central Licensing Board may either cancel or suspend the licence for such period as it may deem fit. Suspension of licence of the petitioner under section 41 of the Drugs Act, 1976 is a penalty under administrative domain of the Central Licensing Board, as whenever it received any information or any inquiry is conducted by the said Board itself, whereby, it forms an opinion that the licencee has breached any of provision of the license, the Board has the authority to proceed against him. As such, a thin of difference exists between the penalties provided under section 27 of the Drugs Act 1976 or a penalty for breach of conditions prescribed in the licence itself. Therefore, both these eventualities may be flowing or emerging from the same series, yet entail different, separate but simultaneous impact and consequences, and thus, the order passed by the administrative authority for suspending or cancelling the licence cannot be equated with the punishment provided under section 27 of the Act, ibid.Consequently, the argument of learned counsel about "double jeopardy" is held to be fallacious.
34. Order accordingly.