1. ANAL MIAN, J.-This is an appeal against the judgment, dated 9th May, 1977 passed by the Drug Court of Sind at Karachi in case No. 5/76, convicting the present appellant under clause (i) of section 23 read with sub-clause (b) of clause (1) of section 27 of the Drugs Act, 1976 and ' imposing a fine of Rs. 5,000, in default to undergo 2 years' imprisonment.
2. The brief facts leading to the filing of the above appeal are that Inspector of Drugs, Sukkur Division at Khairpur (Mr Altaf Hussain made a complaint under section 23 (1) (c) read with section 27 (1) (b) f the Drugs Act, 1976 (hereinafter referred to as the Act) before the Drug Court alleging therein, that the complainant received formation that the appellant i.e. Muhammad Ilyas proprietor of M/s. Farhat Food and Chemical Works, Shahi Bazar, Sukkur, was manufacturing/re-packing castor oil and glycerine pure at his premises without any licence. Thereupon the complainant sent a bogus purchaser to the appellant to place the order of 100 bottles of castor oil and 100 bottles of glycerine pure to the appellant, who started re-packing castor oil in 1 oz. Bottles at his shop. It was further alleged that after that the complainant raided the premises of the appellant, who was present at his shop and upon being asked to produce the Drug manufacturing and Drugs sale licence, he failed to produce any valid licence. After that the complainant searched the appellant's shop in presence of the two mashirs Ali Gulab and Ghulam Muhammad and seized the following medicines and labels from his shop :---
(i) Castor oil of 2 oz. Bottle, 48 bottles.
(ii) Castor oil 1 oz. Bottle, 24 bottles.
(iii) 67 labels containing the name of M/s. Farhat food and Chemical.
3. On the basis of the above complaint the Drug Court took cognizance of the offence and issued process to the appellant. After that the following charge was framed :- ---You, Muhammad Ilyas, proprietor of M/s. Farhat Food Chemical Works, Shahi Bazar Sukkur, are hereby charged that on or about 17th June, 1976 at your aforesaid premises, re-packed for purposes of sale, caster oil in bottles of 1 oz. And 2 ozs. Without possessing a manufacturing/re- packing licence under the Drugs Act, 1976.
(2) By such act you have committed an offence punishable under clause (b) of subsection (1) of section 23 read with cause (b) of subsection (1Yof section 27-of the Drugs Acts, 1976, an J triable by this Court."
4. On the trial of the above case, the prosecution examined the Drug Inspector, Altaf Hussain, the alleged bogus purchaser Ali Gulab and mashir Ghulam Muhammad. On the basis of the above since the Drug Court concluded that an offence had been made out under the aforesaid provisions of the Act and, therefore, convicted the appellant and imposed a fine of Rs. 5,000 in default of payment imprisonment for 2 years. The appellant being aggrieved by the above judgment has filed the present appeal.
2. In support of the above appeal Mr. Sharif Khatak, learned counsel for the appellant has made the following submissions :-
(i) That in order to bring a case within the purview of sections 23 and 27 of the Act; 1976, it is necessary that the offender would have carried out the production of the drug and that packingor re---packing is not sufficient.
(ii) That the charge as framed by the Drug Court was vague inas--much as it was not clear from the same, as to whether the appellant was facing the charge of re-packing or manufacturing of the drug and, thereby, he was prejudiced.
(iii) That packing or re-packing is not an offence within the purview of section 27 of the Act.
5. Reverting to the first contention of Mr. Khatak, it may be pertinent to refer to the definition of the term 'manufacture' given in section 3 (r) of the Act, which reads as follows :- - Sec.3....
(r) "manufacture",in relation to a drug, means all operations involved in the production of the drug, including processing, com--pounding, formulating, filling, packing, re-packing, altering, ornamenting, finishing and labelling with a view to its storage, sale and distribution, but does not include the compounding and dispensing or the packing of any drug in the ordinary course of retail business or on a prescription of a registered medical practitioner or dentist or of a veterinarian and "to manufacture" shall be construed accordingly "
6. It may be noticed that the definition of the term `manufacture' give in the above-quoted provision of the Act is the wide import as to include not only the production of drugs, but also any other processing including packing or re-packing and, therefore, in our view, in order to bring a case within the ambit of section 23 (1) (b), we will have to refer to the above definition. It may be observed that section 23 (1) (b) provides that In. Person shall himself or by any other person on his behalf manufacture for sale any drug except, and in accordance with the provisions of a licence issued under the Act. Since the definition of the term "manufacture" includes packing or re- packing,. In our view, the appellant's case is covered by the above provisions as admittedly the appellant was re-packing castor oil, etc. With reference to the second contention of Mr. Khatak that the charge as framed was vague inasmuch as it was not clear as to whether the appellant was facing the charge of manufacturing the drugs or of re-packing the same, it will suffice to observe that as the term `manufacture' as defined in the Act, includes packing and re-packing in the process of manufacturing, in fact the appellant was tacking one charge and not two charges as canvassed by the learned counsel for the appellant. In this view of the matter there was no ambiguity.
7. Reverting to the third contention that the process of packing and re-packing is not covered by section 27 of the Act, it may be pertinent to observe that in support of the above submission Mr. Khatak has referred to the definition of the word 're-packing' given in Rule 2 (1) of the Drugs (Licensing, Registering and Advertising) Rules, 1976 (hereinafter referred to as the Rules), which provides that re-packing means an operation involved in the transfer of a drug from a larger container or packing into smaller container or packing including filling, packing and labelling with a view to make it made for retail sale or whole-sale but does not include any compounding or processing with a view to formulate it in any dosage form. Whereas section 27 (1) (b) of the Act provides penalty for the offences mentioned therein, which inter alia include manufacturing for sale any drug without licence under clause (1) (b). If the definition of the term `manufacture' -given in section 3(r) includes the process of packing and re-packing, it must follow that the word manufacture' used to section 27 (i)(b) will include the process of packing and re-packing and, therefore, the appellant's case is covered by the above section 27 (1) (b) of the Act. We may observe that there is no inconsistency between Rule 2(1) of the Rules and sections 3(r) and 27 (1)
(b) of the Act, Rule 2 (b) defines the word re-packing whereas section 3 (r) of the Act defines term `manufacture', which includes packing and re-packing. In this view of the matter the third contention of the learned counsel for the appellant has also no substance.
8. For the aforesaid reasons the appeal is dismissed.