Sardar Muhammad Sarfraz Dogar, J. Through this constitutional petition, the petitioner seeks quashment of FIR No.153/2015 dated 1.6.2015 registered against him under Sections 23/27 of the Drugs Act, 1976 ("Act") read with Sections 186, 506 of PPC at Police Station City Hasilpur, District Bahawalpur.
2. The petitioner was accused of selling outdated and misbranded sexual enhancement medicines without drug license. These were not warranted, and consequently taken into possession duly mentioned in Form-5; thereafter, it was held that he disregarded law and obstructed public servant in discharge of public duties. Further he had been a violator of Sections 27 (1) (a) 30 (2) of the Act, which are cognizable offences, so; the petitioner, being aggrieved and saddled with a criminal liability under the provision of the Act invoked Constitutional jurisdiction for quashment of FIR.
3. Brief facts, as unfolded in FIR are that the petitioner is running a business under the name and style of M/s Azeem Super Store, Anarkali Bazar, Hasilpur. The allegations levelled against him are that at the time of conducting raid at 02:40 PM on 1.6.2015, Drug Inspector seized the contraband items of medical store displayed on counter, kept for the purpose of selling. Being annoyed from this raid conducted by the Drug Inspector, the petitioner also extended threats of the dire consequences. The detail of those medicines is as under:- i. Animation Spray; ii. Cream Max Man; iii. Loose Spray bottle without label.
4. The same were taken into possession by respondent No.2 who is Drug Inspector/Controller. As a matter of fact, this action of respondent No. 2 is called in question before this Court. The petitioner is annoyed because of unfair handling in registration of case, and articulated the matter through this constitutional petition.
5. Learned counsel for the petitioner argued that the case has been registered without prior permission of Provincial Quality Control Board ("PQCB") which is sine-qua-non for the registration of criminal case under Section 11 of the Act, and Provincial Inspector on finding any contravention of the Act, shall always refer the matter to the PQCB, and after obtaining permission from PQCB, he has the authority to register the case, which has not been done in case of the petitioner. Further argued that no show cause notice was issued to the petitioner by PQCB, which is clearly a violation of mandatory provisions of law. Further argued that Form-5 was not prepared at the time of so- called break-in/raid, and the same was also not mentioned in FIR. Precisely, it reflects malafide on the part of respondent No.2. Learned counsel argued that no codal and legal formalities have been adopted, which are required under the law, therefore, the impugned FIR is liable to be quashed being frivolous, and based on malafide without any substance and of no legal consequence.
6. On the other hand, the learned Law Officer assisted by Drug Inspector controverted the facts, and vehemently opposed the arguments of the learned counsel for the petitioner with the contention that the permission has been obtained from the District Quality Control Board, Bahawalpur ("DQCB") vide letter dated 1.6.2015, and thereafter, the case FIR was lodged, hence, no illegality or irregularity has been committed. Learned Law Officer further argued that the case has rightly been registered against the petitioner for the offence of selling, stocking of expiry drugs without license, no warranties, obstructing a public servant while performing his duty, and finally disobeying the orders of the lawful authorities along with unregistered and misbranded drugs.
7. We have heard learned counsel for the parties at length and perused the available record with able assistance of the learned counsels.
8. The main grievance of the petitioner is that prior permission from the PQCB was not obtained, therefore, no case could have been registered against him, and show cause notice as required under the law was also not issued to him. This Court observed that the prior permission was properly sought by respondent No.2 from the Office of the Provincial Inspector of Drugs, Tehsil Hasilpur vide its letter No.328/DDC/Hospital, dated 1.6.2015, and the same was granted by the Secretary, District Quality Control Board, Bahawalpur through letter No.1373/DQCB/EDO(II) dated 1.6.2015, and thereafter, the case was registered after having been conducted the raid. However, it has been noticed by this Court that vide letter dated 30.4.2002 issued by Secretary, Provincial Quality Control Board, Punjab, Lahore, Quality Control Boards were established at District Level to ensure the availability and supply of quality medicine in line with the National Health Policy under Rule 3(2) of the Punjab Districts Government Rules of Business, 2001 {Schedule-II, 6 (i) (k)}. It was reflected from the stated letter that a meeting was convened by the members of the PQCB, who delegated their powers to the DQCB, therefore, the permission which has been obtained from the DQCB was in line with the powers delegated by the PQCB, hence, no illegality or irregularity was committed for the registration of the case.
9. Section 27 (1)(a) of the Act provides that "Whoever himself or by any other person on his behalf exports, imports, manufactures for sale of sells any spurious drug or any drug which is not registered shall be punished with imprisonment for a term which shall not be less than [five] years or more than ten years, and with fine wich may extend to [five] lakh rupees. This provision of the Act leads to the cognizance of the offence Sub-Section 2(a) of Section 30 of the Act provides that Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898):-
(a) an offence punishable under this Chapter other than an offence mentioned in sub-section (1) of section 27, shall be non-cognizable, hence, the offence under sub-Section (1) of Section 27 is a cognizable offence, and there is no need to issue show cause notice as the drugs are contraband items. Further, there is no need to obtain the prior permission for the registration of the case.
Furthermore the argument of the learned counsel for the petitioner regarding preparation of Form- 5 is not tenable as such the same was duly prepared on 1.6.2015, which is available on the police file.
10. Needless to say that for quashing of FIR following grounds are ordinarily considered:-
(a) Jurisdictional defect patent on the record;
(b) Patent violation of some provision of law;
(c) Allegations contained in the FIR does not constitute an offence.
It is settled proposition of law that High Court has no jurisdiction to resolve the disputed question of fact in a constitutional jurisdiction. It has been squarely settled that quashing of the FIR by appreciating the arguments advanced by the learned counsel for the petitioner would amount to bypass the normal procedure of law prescribed by the Act. Certainly, an accused cannot be allowed to avoid special course of trial before the Court of competent jurisdiction, as the Act is special law and special law has overriding effect on ordinary Law, and If prima facie the offence is made out against him, by resorting to constitutional Jurisdiction of High Court. Quashing of FIR during the investigation amounts to throttling the investigation process, which is not permissible in law. By now, it is settled too; that course of trial before the special courts should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court, if prima facie an offence has been committed. By allowing the constitutional petition it would be erred in law to all the procedures prescribed under the Act which would become redundant. Quashing the proceedings summarily would create chaos due to following:-
(i) To interfere in sphere allotted to the executive organ.
(ii) There is likelihood of injustice in summary disposal.
11. The inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. Is neither alternative or additional in its characteristics and is to be rarely invoked only in the interest of justice so as to redress the grievances for which no other procedure is available, and the provision should not be used to circumvent the ordinary course of criminal procedure. Reliance is placed on a case titled "Muhammad Rehman v. District Police Officer and others" (PLD 2015 Lahore 413). The fact that the prior permission from the PQCB or DQCB and mentioning of Form-5 in the FIR is not an exceptional circumstance, as the same has been discussed above and procedural lapse found by this Court while registering this FIR, therefore Court could not exercise its exceptional jurisdiction which can sparingly be used to extraordinary circumstances. It has also been held in "Dr. Ghulam Mustafa v.
The State and others" (2008 SCMR 76) that the Hon'ble apex Court has settled that the High Court has no jurisdiction to quash the FIR while exercising Constitutional power under Article 199 of the Constitution or under section 561- A, Cr.P.C. Except in exceptional circumstances. This Court had no jurisdiction whatsoever to take the role of the investigating agency and to quash the FIR while exercising constitutional jurisdiction unless and until very exceptional circumstances existed.
Furthermore prior permission from the PQCB or DQCB and mentioning of Form-5 in the FIR is not an exceptional circumstance, which merits interference. No extra ordinary circumstance has been urged on the basis of which this Court can exercise its jurisdiction. Furthermore, alternate and efficacious remedy under Section 265-K or 249-A of the Cr.P.C is available to the Petitioner.
Reliance is placed on "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006 SCMR 276). In fact all the grounds raised pertain to the involvement or not of the Petitioner for which the trial Court is the court of competent jurisdiction.
12. Under the circumstances, instant petition is dismissed.