GHAUs ALI SHAH, J. - This appeal under section 31(7) of the Drugs Act, 1976 is directed against the judgment dated 16th October. 1977 of the Drugs Court of Sind and Baluchistan, Karachi, whereby the appellants were convicted under section 23 (a) (vii) of the Drugs Act, 1976 and each one of them was sentenced to imprisonment till rising of the Court and in addition the appellant No. 1 to pay a fine of Rs. 5,000 and the appellants Nos. 2 and 3 to pay a fine of Rs. 2,000 each or in default each defaulter to undergo R. I., for six months.
2. The facts of the prosecution case in brief are that Dr. M. Abdul Sami Khan. Assistant Drugs Controller, Health Division, Government of Pakistan, Karachi lodged his F. I. R , on behalf of the State on 1 October, 1976 at 00-30 hours at Police Station Gulberg of Karachi against Messrs Chas A.
Mendoza, a drug manufacturing firm under section 23(1) (vii) of Drugs Act, 1976 which reads as under :- ---It is to report that on Ist October at about 12.30 p. m., the under--signed visited and inspected the premises of Messrs Chas A. Mendoza Federal `B' Area and found that the manufacture of drugs was being conducted in contravention of section 23(1) (a) (vii) by Mr. Khalil Ahmed, Managing Director and the management responsible for the commission of the above offence. The manu-- facture was found to be conducted in presence of the following witnesses. (1) Mr. Saeed Khan son of Gul Afzal Khan, (2) MaheAlam son of Asghar Ali 1011/19 F. B, Area Karachi, (3) Mr. Ghayoor Abbas 32/1, F. Jacob Lines, Karachi. The following employers were working in the factory (1) Mr. Naeemullah, (2) Mr. Mohammad Jamil Javed, (3) Mr. Alamzeb (4) Mr. Ali Nasir.
Please register the case against the Management of the firm and investigate the case. The drugs being manufactured were as follows :-st
(1) Paracetamol compound tablets, (2) Aspirin tablets for strip, (3) Rutine compound tablets and
(4) Powder samples from the same have been taken and being handed over to you for further recovery action."
3. The F. I. R. Exh. 9/3 was recorded by the A. S. I., Abrar Hussain of Police Station Gulberg. The S. H. O.
Ghulam Hussain, accompanied by the police party headed by the D. S. P., Mr. Zafar lqbal and officers of the Health Department including the complainant Dr: S. Abdul Sami Khan, Mr. G. Abbas and Dr. Fazle proceeded to the premises of Messrs Chas A. Mendoza Karachi on Ist October. 1976 at 00.15 hours. He was actually picked up by the D. S. P., when he was on his way to his Police Station.
They went to M/s. Chas A. Mendoza and Company situated in Block 10, Federal `B' Area, Karachi, where they found the four accused persons except the appellants at the factory premises. The police party was accompanied by two mashir also when they went inside the factory of the accused. They were Mahe-Alam and Saidjan. The accused were preparing and packing drugs which were seized under mashirnama Exh. 9/1 which was prepared by the S. H. O. The accused did not produce any registration certificate about the drugs which were being manufactured in the factory. The S. H. O. Thereafter recorded the statements of P. Ws. : Said-Jan and Wahab Arain.
Before seizure of the drugs, the complainant Dr. Abdul Sami Khan gave a written complaint Exh. 9/2 to the S. H. O. Which was sent by him to the police station for registration as a F. I. R.
4. The prosecution case is based on the evidence of the complainant Dr. M. Abdul Sami Khan, Dr. F.
R. Y. Fazle, mashir Mahe-Alam and the Investigating Officer.
5. The accused in their statements before the trial Court have denied the allegations and have stated that the process of manufacturing of the drugs was completed on the night of 1st October, 1976 and no such manufacturing was carried on thereafter except that some of the workers had remained behind to clean the machine and to keep the stock in the store according to normal practice when the police party raided their premises. It was further stated by them they had a dispute with the Exh. Director-General of Health, who suspended their licence in May, 1976 and they got it restored from the Health Minister, Government of Pakistan: It was on account of it that he was annoyed and got them falsely implicated in this case. The accused Mohammad Ilyas and Abdullah have further stated that they had no direct concern with the manufacturing process carried on in the factory as they worked in the Head office in capacity of the Director and the Incharge Accounts respectively.
6. We will first of all examine the evidence on record. The com--plainant Dr. A. Sami Khan P. W. 1 has stated before the trial Court that the accused Khalil Ahmed was the Managing Director of Messrs Chas A. Mendoza whereas the accused Mohammad Ilyas and Mohammad Abdullah were the Directors of the above-said firm. He received information on 1 October, 1976 to the effect that the above-said firm were manufacturing drugs which were not registered in their name. He accompanied by Dr. Fazli, Ghayoor Abbas, police party and Mahe--Alam went inside the premises of the firm at 12-30 mid-night and they found that manufacturing process was going on there and the workers of the firm were filing capsules with drugs and stripping Aspirin Tablets but no one from the Directors was present in the premises at that time. There were only four accused who were workers in the firm. When it was inquired from them if the firm had got the above drugs registered in their name; they showed their ignorance about it. They took samples of "Aspirin tablets, Paracetamol compound tablets, Rutine tablets and the powder which was being put in the capsules. The complainant however handed over the samples to the Investigating Officer, who prepared such memo Exh.'9/1 for the seizure of the samples. The complainant made such written complaint Exh. 9/2 to the police officer. He has however admitted in cross-examination that it was about 8-30 p. m., on the night between 30 September, and 1 October of 1976 when he received information about the unauthorised manufacture being carried out by the firm of the accused. He has also admitted that there was notification allowing manufacturing of the drugs withoutst th st registration till 30th September, 1976 but they made arrangements and went to Lalokhet police station at about 11-00 p. m and then to the police station Gulberg at 12 o'clock mid-night as the firm fell within its beat. It has also been admitted by the complainant that they did nut pass any receipt to any of the accused why were present in the factory after the seizure of the drugs.
7. Dr F. R. Y. Fazli, P. W. 3 has supported the complainant and has stated before the trial Court that he had visited the factory of the accused on Ist October, 1976 and was accompanied by the complainant Dr. M. Abdul Sami Khan, Mr. Ghayoor, Assistant Drug Controller and the Police party headed by the S. H. O. There were also two mashirs by name Mahe-Alam and Said-Jan, with them.
They found four type of drugs being manufactured which were Aspirin tablets, Paracetamol compound tablets, Rutine compound tablets and an unidentified powder. There were four persons engaged in the manufacturing process in the factory. The police secured the samples of the drugs which were being manufactured there. He has however admitted that they did not ask the accused whether the drugs being manufactured by them were registered in the name of the firm as he had such a list of the drugs showing registration in name of the firm. It has also been admitted by him that a notification authorising manufacture of drugs without registration till 30th of September, 1976 was there, He has also admitted that they had received information that certain firms would be manufacturing drugs not registered io their names even after the above date and he had therefore come to Karachi in order to check up and see that no such unauthorised manufacture took place after the above date It has also been admitted by him that it was at about 9-00 p. m., on 30th September, 1976 when such a plan to raid the firm after cut of date was made and the seizure of the drugs was not carried out strictly in accordance with the Drugs Act and the rules made thereunder as the requirement of law was to pass a receipt to the person from whom drugs were seized and he was not quite sure if they had passed a receipt or not after the seizure of the drugs in the instant case.
8. The S. H. O. Ghulam Hussain, P. W. 4 and Mahe-Alam, mashir P. W. 2 have supported the prosecution case for seizure of the drugs under mashirnama Exh. 9/1. They have also stated that they found four accused manufacturing and packing the drugs when the firm in question was raided on the night between 30th September and 1st October. 1976.
9. Mr. Mohammad Hayat Junejo, the learned counsel for the appellants contends that the case against the appellants has been engineered even much before the offence was committed. It's clear from the evidence on record that all was done to see that the efforts to involve the appellants did not fail and the intention on part of the complainant as well as Dr. Fazli was to involve the present appellants. It has also been contended by him that the complainant Dr. M. Abdul Sami has admitted that he received the information of the offence at about 8-30 p. m., when there could be really no offence. This is nothing short of putting cart before horse as every thing was done before 12 o'clock mid-night it has also been admitted by the complainant that the bottle containing Rutine compound tablets was not sealed in accordance with the provisions of the Drugs Act. Moreover Dr. Fazli, P. W. 3 has also admitted that seizure of the drugs was not strictly in accordance with the Drugs Act, 1976 and the rules made thereunder and requirements of law have not been complied with properly when the rules have not been followed. The whole case fails as non-compliance with mandatory provisions of law vitiates the whole proceedings. The provisions of section 19 of the Drugs Act, 1976 have been clearly flouted though it was mandatory to pass on receipt after seizure of any drug or any other article in the prescribed form to the accused. He relies upon 1972 P Cr. L J
756. There is no mens rea in this case, therefore nothing criminally could be connected with any of the appellants. It's admitted position that registration of the drugs in name of the firm was valid up to 12 O'clock mid-night on 30th September, 1976 and the possibility that the workers were cleaning the machines when the firm was raided cannot be ruled out under the circumstances of the case.
The appellants are victims of hostility and the prosecution having utterly tailed to prove guilt against them are entitled to acquittal under the circumstances of the case.
10. Mr. S. Murtaza Hussain, the learned counsel appearing on behalf of the State has stated that the points raised by the learned counsel for the appellants do not get support from the facts on the record. The raiding party has entered the premises of the firm after mid-night on 1 October, 1976.
They found that the drugs were being manufactured which were not registered in the name of the firm and the appellants who are the Directors of the firm could not get out of their liability because of their absence at the time of commission of offence. He supports the con--victions and sentences awarded to the appellants.
11. We have carefully read the evidence and considered the contentions of the learned counsel for the appellants as well as State. There is no denial of the fact that the provisions of - section 19 of the Drugs Act have been clearly flouted in this case which is clear from the evidence of the complainant as well as Dr. Fazli. It's also strange to find that all preparations to raid the premises were completed on 30th September, 1976 when the firm in question was still within permissible limits of manufacturing the drugs without registration. It's very difficult to accept that the raid was in normal course and without any hostility against the firm or the appellants who were managing the affairs of the firm in capacity of Directors. We find lot of force in what the learned counsel for the appellants has contended that the case was engineered even much before the offence was committed and all efforts were made to involve the appellants. It appears that the background of the case is mala fide and there is a deliberate effort to harass the appellants otherwise there was nothing to initiate such an action against the firm only within half an hour of the expiry of the date for manufacture of the drugs.
12. We therefore hold that there are infirmities in the prosecution case as the mandatory provisions of law have not been followed and such a non-compliance cuts roots of the prosecution case. The background of the case as already observed above also appears to be mala fide. The convictions and sentences awarded to the appellants cannot be maintained under such circumstances of the case. We accept the appeal, set aside the convictions and sentences awarded to the appellants and acquit them. The judgment of this appeal was announced earlier by a short order and foregoing are the reasons for allowing it.