1. ' Munawar Ali Khan, J.--The appllant/accused, Shafiq Niazi, the proprietor of Messrs Exo Laboratories Asumal Ojha Road, Karachi, was tried for advertising of the "Knight Pills" manufactured in the said Laboratories and convicted by the Drug Court, Sind and Baluchistan under section 27(4), Drugs Act, 1976 (hereinafter referred to as the Act) and sentenced to imprisonment till rising of Court and fine of Rs, 10,000 or in default, in S.I. For six months, vide judgment of the said Court dated 30th May, 1982.
2. ' The prosecution case, in brief, is that on 14th September, 1980 Drug Inspector, Muhammad Sidik paid a visit to the Messers Khawaja Stores, Saddar, Karachi and in presence of Anwar Ali, the partner of the said stores, seized from there a handbill containing advertisement of knight pills manufactured by the Exo Laboratories. Thereafter, the said Inspector secured a sample of the pills from the manufacturing laboratories and issued notice to the said laboratories after obtaining necessary sanction from the Quality Control Board, he lodged complaint in Drug Court against the accused the proprietor of the Exo Laboratories.
3. ' The accused in his statement before the trial Court made a clean breast of the facts, admitting not only that he is the proprietor of the Exo Laboratories where the pills in question were manufactured but also that the controversial handbill was sent to the Khawaja Stores by him. He has however, averred that the handbill was never intended to be used as advertisement of the knight pills but it was meant as literature usually accompanying the medicine for use by the drug stores and purchasers who are supplied the same on demand.
4. ' Mr. I. A. Hashmi was heard in support of the appeal and Mr. Imam Bux submitted his arguments on behalf of the State. After hearing the arguments of the learned counsel, the appeal was dismissed by short order dated 5th April, 1984 for reasons to be recorded later on. Following are the reasons for the dismissal of the appeal.
5. ' It goes without saying that the handbill which is the basis for conviction of the accused was issued by him and the knight pills mentioned in the handbill were manufactured in the Exo Laboratories of which the accused is the proprietor. The recovery of the handbill (Exh.4) is proved by the evidence of the Drug Inspector, Muhammad Sidik (P.W.1), who has also stated in his evidence that the sample of the pills was secured from Exo Laboratories' premises. He is corroborated by Anwar Ali (P.W.3) admittedly the partner of Khawaja Stores with regard to the recovery of the handbill which, he confirm, was made in his presence. Again Dr. Ghulam Safdar D.H.O., Karachi (P.W.2) has supported the evidence of the Drug Inspector inasmuch as that a sample of Knight Pills and empty cartons of the pills were secured by the Inspector from the premises of the Exo Laboratories in his presence. As stated above, it is not controverted by the accused that the knight pills were manufactured by the Exo Laboratories of which he is the proprietor and that the handbill in question was issued by him.
6. ' The only point that falls for determination is whether controversial handbill was in the nature of advertisement or just in the form of literature for use by shopkeepers and purchasers of the pills. In this connection, the learned counsel for the appellant in the first place drew our attention to the shape of the handbill which is in the form of a folder. Secondly, it was argued that the handbill has neither been distributed publicly nor has it been published in newspapers. Accordingly, the learned counsel expressed the view that the handbill cannot be held as advertisement of the knight pills, but its use being restricted to the shopkeepers and buyers of the pills, it is not more than literature for use of the pills which is also clear from the fact that it was seized from the shop of Khawaja Stores.
7. ' With a view to appreciate the argument of the learned counsel for the appellant if the handbill is an advertisement of the knight pills or is just a literature for use by the shopkeepers and buyers of the pills, the definition of "advertisement" as given in the Explanation to S. 24 of the Act is reproduced as under: ' Explanation--In this section "advertise" means to make any representation by any means whatsoever for the purpose of promoting directly or indirectly the sale or disposal of a drug, a substance or mixture of substance, a remedy or a treatment except the display of signboards for a clinic a dispensary or a hospital or such other institution offering treatment."
8. ' While interpreting the handbill in the light of above definition, the learned Drug Court has come to the conclusion that the handbill is nothing but an advertisement. The reasoning adopted by the Court in support of its conclusion is as follows:- Looking at Exh.4 we find that on nearly half of this handbill, there is a picture of healthy semi-nude male and female, which gives rise to a suggestion that by taking the pills in question, a person would look as healthy as the male in the picture. There are two and half columns of Urdu inscription on this handbill. In the end of the second column, it is written; it is well-known about knight pills that husband who takes knight pills never gets old and knight pills keep the potency of a male ready for action. The Urdu inscription does not show the component ingredients of knight pills, but states that with recent scientific ways the precious herbs which were previously available to the rich, have now been made available to general public which will bestow long marital bliss to the husbands... .The nature of the writings on the handbill and the picture clearly show that it is publicity for the purpose of promoting sale of the pills."
9. We are inclined to agree with the views expressed by the trial Court. No doubt, the language used in the handbill is calculated to induce the persons interested in combating sexual weakness to buy the pills mentioned in the handbill and thereby promote the sale of the pills. Contrary to this, the literature which generally accompanies the drug for the use by drug stores or by doctors specifics therein not only the components of the drug but also the percentage of each component. The literature also carries the dosage to be administered under various conditions of the ailment. In short, it serves as a complete guide for user of the drug. The ingredients of the knight pills are totally missing from the handbill under consideration. In absence of such information, it is not only risky to use the pills but is also difficult to vary the dosage depending upon the condition of the person using the pills. In this view of the matter we have no doubt in our mind that the handbill falls within the definition of advertisement and by no stretch of imagination it can be named as literature for guidance of users of the pills.
10. ' As provided in section 24 of the Act, advertisement of a drug or any other substance prepared for use in accordance with Ayurvedic, Unani. Homeopathic or Biochemic system is prohibited except in the prescribed manner. The conditions to be satisfied for the purpose of advertising any drug or substance are contained in the drug (Licensing, Registering, and Advertising) Rules, 1976 (hereinafter called as the said Rules). The relevant rule which prescribes the conditions for advertising is rule 31. Relying upon sub-rule (2) of this rule, the learned counsel for the appellant attempted to show that advertising of a drug to the medical, pharmaceutical and allied professions without referring to the Federal Government through medical representatives or through academic scientific research journals which are registered with the Federal Government is permissible. Therefore, his argument was that even though handbill is an advertisement, since it was intended for use by the shopkeepers and buyers of this pills it is not offensive rendering the accused liable to any punishment. The argument was obviously self-defeating. The learned counsel while advancing this argument was conscious of the legal position that the knight pills which are the subject-matter of the advertisement through the controversial handbill being preparation of Unani system of medicine are not a "drug" within the definition given in clause (g) of section 3 of the Act nor their advertisement is for medical pharmaceutical and allied professions.
11. Consequently, the argument is of no avail to the accused's counsel. Assuming for the sake of argument that the advertisement contained ill the handbill was meant for medical, pharmaceutical and allied professions, still such advertisement was to be subject to the conditions specified in the next following sub-rule i,e,, sub-rule (3) of Rule 31. Since the said conditions are admittedly not fulfilled in the instant case, the accused cannot claim exoneration from the liability on the above ground. Furthermore, as provided in sub-rule (10) of rule 31, advertisement of the diseases specified in Schedule 'E' of the said rules under sub-rule (2) referred to above is totally banned. A peep into the said Schedule would show that. "Sexual Impotence" finds mention at serial No,4 of the Schedule. The handbill being the advertisement relating to sexual weakness, cannot be saved even on the ground that it falls under sub-rule (2) of rule 31.
12. ' The last argument of the learned counsel for the appellant was that since the handbill does not contravene sub-rule (9) of rule 31, the accused is not liable for any offence. Sub-rule (9) reads as under:- "No drug or any other substance shall be advertised in a manner which encourages self- medication or use to the extent that it endangers health."
13. ' Although the learned counsel conceded that the advertisement contained in the handbill in question does encourage self-medication, yet his objection was that the pills sought to be advertised by the handbill being harmless, the use thereof to any extent could not endanger life. In support of his contention, the learned counsel placed reliance on the report of Pakistan Council of Scientific and Industrial Research Laboratories, produced by the accused (Exh.16). The report relied upon on behalf of the accused has not been proved in accordance with the law. It is not admissible under the Act automatically, as the report of Government Analyst. Accordingly, if the said report was to be produced in evidence it was necessary to examine the expert whose view are contained therein. In absence of the expert's evidence, the report cannot be looked into and will have to be excluded from consideration.
14. ' It appears that the sample of knight pills secured from the accused's laboratories was forwarded by the Drug Inspector for report of the Government Analyst. He has also produced such report (Exh.8). No doubt, the report shows that methyltestesterene, morphine, and yohambine as suspected by the Drug Inspector were not detected, yet there is no indication in the report as to what were constituents of which the knight pills were the end product and whether unlimited use of such pills was likely to endanger life or not. The learned trial Court has rightly held: "It cannot be said that the pills are absolutely free from toxicity and will produce no adverse effect by its unlimited use without medical supervision."
15. ' Apart from above, the pills is not a drug and as such the manufacturing laboratory has not even obtained any licence for manufacturing the pills. Therefore, it cannot be claimed that the pills are prepared in scientific manner. It is also not possible to say with certainty that the sample taken from the premises of the laboratories and forwarded for report of the Government Analyst was representative of the whole lot of the pills offered for sale. This is because pills are not manufactured as a drug in accordance with the conditions of any licence obtained for manufacture of any drug. In absence of such evidence, the pills cannot be declared as a substance which can be used to any limit without any risk. Consequently, it cannot be argued that no contravention of sub-rule (9) has taken place. Accordingly, the case has been proved against the accused beyond reasonable doubt.
16. ' Before parting with the case we would like to observe that the learned trial Court has taken very lenient view in awarding the sentence. It is our experience that by such unscrpulous writings as the handbill, illiterate people are invariably misled and become victims of the greedy manufacturers of the medical preparations such as knight pills. Unless, ---deterrent punishment is awarded, on proof of the case against them, the menace would continue unabated. If penalty of fine alone is imposed on such accused, we may not be surprised that they will recover the amount of fine from innocent purchasers of such pills in no time.