1. ABDUR RAHMAN, J.-----This appeal is directed against the judgment of the Drug Court of Sind and Baluchistan, dated 1-6-1981, whereby the appellants were convicted under sections 27 (2)(b) and (4) of the Drugs Act, 1976 end each of them was sentenced to suffer imprisonment till rising of the Court and to pay a fine of Rs.8,000 or in default to undergo S.I. For 4 months. Each of them was further sentenced under section 27, subsection (4) of the Drugs Act to pay a fine of Rs .2,000 or in default to suffer S.I. For one month more.
2. The prosecution story is that Ghulam Rasool Drug Inspector Karachi, raided Muslim Medical and General Store, in Al-Azam Square Karachi, and secured and sealed the sample of a drug namely Incrimine B-Complex Lysine Iron Syrup Batch No. 278 labelled to have been Manufactured by Messrs Lederle Laboratories Division Cynamid (Pak.) Lid. Karachi. This drug, on analysis by the Government Analyst was found to be substandard and misbranded. The seal of this drug was traced to the manufacturers that is the accused firm. The Drug Inspector sealed the samples and after obtaining the requisite statutory sanction of the Provincial Quality Control Board filed complaint in the Court against present appellants who are admittedly the (1) Director and General Manager, (ii) Plant Manager, (i.e) Production Manager, (iv) Quality Control Manager and (v)
3. Controller respectively of the accused firm.
4. This appellant further admitted that the drug in question was manufactured and sold by their firm under the Bill and Warrantly to Messrs Pharmade Limited and in turn to the Medical Store concerned. However they disputed that the drug in question is misbranded or substandard.
5. A charge was framed against the appellants under the above sections to which all of them have pleaded not guilty and have claimed to be tried.
6. The main point that came for determination of this drug for sale before the learned trial Court related to the manufacture misbranding and substandard of the said drug.
7. During the course of trial the prosecution led the evidence of Drug Inspector Ghulam Rasool as Exh.
8. 15, who produced intimation to the person from whom sample was taken as Exh. 16, receipt of the sample to that person as Exh. 17, letter of sending the samples to the Quality Control Board Exh. 18, letter of sending the Samples to the Analyst Exh. 19, certificate of the Test Analysis Exh. 20, it receipt Exh. 21, Cash Memos. Of the said drug Exhs. 22 and 23. Its receipt for Lederle Distributors Exh. 24 letter of the Drug Inspector to the accused firm Exh. 25, postal receipt Each. 26, reply, the accused firm Exh. 27, Quality control Assary Report Exh. 27 Letter of Drug Inspector to Quality Control Board Exh. 28, Per Prosecution under Drugs Act, 1976 Exh. 27, Prosecution under Drugs Act, 1976 Exhs. 30 and 31, Exh.
9. 32, D/O. Nasim Mirsa, Exh. 33 Cash Memo. Exh. 34 Depositing of Witness No. 3, Ziaulhassan Exh. 35, Receipt of Well come distributors Exh. 36, deposition of witness No. 4 for the prosecution Mr. Abdul Raouf Exh. 37, Cash Memo. Pharmed Ltd. Exh. 38, Deposition of witness No. 5 for the prosecution Mr. Syed Amir Exh. 39, Receipt of Invoice Lederle Lab. Division Cynamid (Pak.) Ltd. Exh. 40, statement of the Lable as regard Iron. Exh. 41, Form 13, certificate of test or analysis of Government Analyst under section 25 Exh. 42, Form 6, Test Report No. 1187/1979. Exh. 43 Form 6, Test Report No. 7442/1980, Exh.
10. 44, Form 6 Teat Report No. 941/1978. Exh. 45, Quality Control Assary Report. The learned trial Court after taking into consideration the above evidence came to the conclusion that this drug was manufactured for sale by the appellants and was misbranded and substandard and was sold under a false warranty.
11. We have heard Mr. Munawar Malik Advocate for the appellants and Mr. Makhdoom Abdul wali, counsel for the State at length.
12. It has been contended by Mr. Munewar Malik, counsel for the appellants that the sanction for prosecution was not proper as it was not obtained against the appellant that is, in their individual names but was obtained in the name of the manufacturer Messrs Leaerle Lab. Division Cynamid (Pak.) Ltd. Karachi, which is a limited Company. He further contended that there was no evidence to show that the appellants had any knowledge about the substandard manufacture of said drug in their company, or of its being misbranded. In his support he has cited the case of Superintendent of Police Federal Investigation Agency Lahore and another v. Akhtar Hussain Bhutta PLD 1978 SC 193 in which it was held that the private limited Company was a person in its own right and, therefore, could be prosecuted. The liability of Managing Director of such Company could arise only if he could have been shown to have manufactured substandard drug for and on behalf of the Company. No such allegations had been made in challan submitted to the trial Court. The Managing Director being assisted by executives and workers, it was difficult to presume him guilty of manufacture of such drug on behalf of the Company, simply because he happened to be its Managing Director.
13. Mr. Munawar Malik, Advocate also placed reliance on an unreported decision of this Court in Criminal Appeal No. 134 of 1982, where our brother Ajmal Mian, J. Relying upon the same Supreme Court decision held that the prosecution was vitiated as the firm was not impleaded as the principal accused.
14. We do not find any substance in any one of the contentions of the appellant's counsel. The Supreme Court decision referred to above is based on section 38 of the old Drugs Act (XXIII of 1949) which has been repealed. That old section reads as under:-- "Offences by Companies, etc. Where the person guilty of an offence under this Act is a company corporation of firm every director, partner, and officer of the Company, corporation. Or firm with whose knowledge and consent the offence was committed shall be guilty of the like offence."
15. The perusal of this section would show that only such director/ officers etc. Of a company will be liable for the offence with whose (directors /officers) knowledge or consent the offence was committed. Since the section did not place onus on the accused to prove absence of knowledge or consent, therefore, according to the ordinary principles of criminal law, the burden to prove the existence of knowledge or consent was on the prosecution. But the position has now changed.
16. The old Drugs Act has been replaced by a new Drugs Act (XXXI of 1976). The provisions contained in section 38 of the old Drug Act, have been substituted by the provisions of section 34 of the new Drug Act, which reads as under:- "Offences by companies etc. Where the person guilty on an offence under this Act, is a Company, Corporation, Firm or Institution, every director, partner and employee of the company, corporation firm or institution shall unless he proves that the offence was committed without his knowledge or consent, be guilty of the offence."
17. The plain reading of this new section will make it clear that if the person guilty of an offence under this Act is a Company, Corporation Firm or Institution every director, partner and employee of the company, corporation, firm or institution shall, unless he proves that the offence was committed without his knowledge or consent, be guilty of the offence.
18. So far as the judgment of this Court in Criminal Appeal No. 134 of 1982, is concerned, it is no doubt based on the new provision of law contained in section 34 of the Drugs Act XXXI of 1976, but it is also distinguishable from the present case. In the appeal referred to above Messrs Hanneman Laboratories, North Nazimabad, Karachi, was labelled as manufacturer. This was neither a company nor a partnership firm nor an Institution but it was a sole proprietorship concern owned by Appellant No. 1 of the case viz. M.A. Ghori. Ajmal Mian, J; was of the view that the same being proprietorship concern owned by appellant No. 1 was not a partnership firm, therefore, section 34 of Drugs Act, 1976 would no: apply to it. It was further observed by Ajmal Mian, J. That even if Messrs Hanneman Laboratories, was treated as a partnership firm the prosecution would be vitiated as Messrs Hannman Laboratories, was not impleaded as an accused. Since in the present case, the manufacturer of the Drug Messrs Cynamid (Pak.) Ltd. Lederle Lab. Division Limited Karachi, is a Limited Company/ Corporation and the appellants were its Director and employees, therefore, section 34 of Drugs Act (XXXVI of 1976) is fully applicable to it.
19. Moreover the list of the appellants as well as that of the accused before the trial Court would show that the appellants were not being tried in personal capacity but were being tried as director and employees of Messrs Lederle Lab. Division Cynamid (Pak.) Ltd. Which was arrayed as an accused, of course alongwith its director and employees. We want to make it clear that no doubt a Limited Company or a Corporation is a 'Person' in the eye of law and by a legal fiction it is capable of taking and defending civil actions in its own name, though even there it has to act through its directors /employees or agents as the case may be. But in Criminal Law the position is different. Despite the generality of section 11, P.P.C. It is not indictable for offences which can the committed by human beings only or offences which must be punished with imprisonment. Reliance is placed on AIR 1952 All. 114 and AIR 1964 Bom.
195. The trial Court, therefore, could not punish the company. Hence if any one of its acts amounts to an offence sortie one or more of its directors or employees who do that act will have to be held responsible for it. Ordinarily the burden of proving complicity in the offence by means of the knowledge of consent was on the prosecution but in view of the special provisions of section 34 of the Drugs Act, 1976, the burden is now cast on such director or employee of such company to prove that the substandard or misbranded drug was manufactured etc. Without their knowledge and or consent, after the prosecution discharges its initial burden, which it has done. Hence it will be presumed that all such acts of manufacture of misbranded or substandard drug were committed with the knowledge and or with the consent of every such director and or employee.
20. It was next contended by Mr. Munawar Malik that the Analysis Report of the Government Analyst does not conform to the pro forma provided, therefor. We have gone through the report and compared it with the pro forma in the Court. We found that the report .Is in conformity with the pro forma provided under the law. The trial Court had also taken into consideration the report of the Government Analyst and had discussed at length the statistics about its (drugs) components and on the basis of such discussion had come to the conclusion that the quantity of its components does not conform to the requisite standard. We have gone through the reasoning given by the trial Court and we are of the view that the same is perfectly justified.
21. We have gone through the evidence led in the case by the prosecution. We find that the learned trial Court has discussed the evidence of the witnesses as well as the documents produced by them. The discussion is not detailed and fact of the matter is that no detailed discussion was required because facts deposed in the evidence as wall as given in the documents were not disputed by the appellants. We are, therefore, satisfied that the appellants have been rightly convicted by the trial Court. The sufficiency or otherwise or the sentence war not challenged before us nor do we find it necessary to modify the same.
22. Consequently we uphold the conviction and sentence awarded to the appellants by the trial Court and dismiss the appeal.