This is an application filed on behalf of one Abdul Hamid under the provisions of section 561-A, Cr.
P, C. For quashing a proceeding pending as Revision Application in tire Court of the Additional Sessions Judge, Dadu, which has-been filed challenging the order of discharge passed by the Civil Judge and F. C. M., Dadu, in a case in which Abdul Hameed was prosecuted under section 18 read with section 27 of the Drugs Act, 1940.
2. Briefly stated the facts are that Mr. Ghulam Kadir Memon, Drugs Inspector at Hyderabad raided a shop known as Abbasi Medical Stores at Dadu and seized and secured samples of two drugs namely Iodine and Vinum Ipeeno, these drugs were sent to the Government Analyst and chemical examiner who on examination found the same to be not up to the standard quality. The drugs were manufactured by Commonwealth Chemical Company, and it is admitted case that Abdul Hameed the peti--tioner is a partner of that concern. M/s. Abbasi Medical Store of Dadu, produced before the Drugs Inspector a cash memo in respect of some drugs and this cash memo. Which is Exh. 1-A on the record of the trial Court bears a printed warranty purported to have been signed by one Bashir Ahmed Butt, and the said warranty states that the goods sold do not contravene in any way the provisions of section 18 of the Drugs Act, 1940. Since section 19 of the Drugs Act, 1940 lays down that a warranty by a manufacturer is a valid defence in prosecutions under the Drugs Act, the Inspector of Drugs took no further action against any representative of Abbasi Medical Stores, but he filed a complaint under section 18 (a) (i) read with section 27 of Drugs Act, 1940, against the present petitioner. This complaint was originally instituted in the Court of Resident Magistrate, Dadu, where the complainant Mr. Ghulam Kadir Memon, Inspector of Drugs and the owner of Abbasi Medical Stores, Dadu, were examined. Thereafter, the case came before the Civil Judge and F. C. M., Dadu, who had examined the petitioner accused under section 342, Cr. P. C. And passed the order of discharge.
3. Being aggrieved by this order of discharge Mr. Ghulam Kadir Memon, Drugs Inspector, filed a revision application before the Court of Sessions Judge at Dadu, praying for setting aside this order of discharge and for further inquiry in the case as envisaged by section 436, Cr. P. C. This revision was admitted by the Additional Sessions Judge, Dadu, who called for the record and issued notice to the petitioner.
4. The present petition has been filed with a prayer that the proceedings by way of this revision application should be quashed. The grounds in support of the prayer are the proceedings now pending before the Sessions Court are an abuse of process of the Court and secondly, that this revision application is not maintain-- able because the whole of the evidence having been recorded the order of discharge has all the characteristic of an order of acquittal which could not be interfered with at the instance of a private party in the absence of an appeal by the Government under section 417, Cr. P. C. It is further argued that if this revision application is allowed there would be no further proceed--ings to be taken in this case by the trial Court as all the evidence in the Vase had already been recorded.
5. I had given time to the learned counsel on either side to find out if there was any decided case where the proceedings by way of revision had been quashed by the High Court in exercise of its power under section 561-A, Cr. P. C., but they frankly informed that never had such a case arisen.
However, the learned counsel for the petitioner relied on the terms of section 561-A, Cr. P. C. Which is designed to provide a remedy in such cases where the process of law was being abused or that the process of law was being used in a manner which tends to cause unnecessary harassment to a party. In short the argument was that this revision application which had been admitted by the Sessions Court to regular hearing, was in the nature of harassment to the petitioner. I am afraid, I cannot accept that argument because, whenever, legal proceedings are instituted by a party and entertained by a Court the lawful presumption is that the same are not designed to harass some party and the burden then is on the party alleging harassment to show to the High Court that if the proceedings are allowed to remain pending no useful purpose would be served or it will cause unnecessary harassm ent to the party proceeded against. In this case the proceedings by way of revision application have been instituted by virtue of sections 435 and 436, Cr. P. C. And grievance is made by the complainant who is the Drugs Inspector that the order of the trial Court is in violation of law. Mr. Fazle Ghani, learned counsel for the petitioner contended that because the warranty was not signed by the petitioner, but by another partner of the petitioner's firm, the petitioner would not be liable. This argument completely loses sight of tire provisions of section 38 of the Drugs Act, which creates liability of vicarious nature. Section 38 reads as follows :- "S. 38. Where the persons guilty of an offence under this Act is a company, corporation or 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."
6. Prima facie therefore in accordance with provisions of section 38 of the Drugs Act, 1940, the liability in respect of drugs sold will also fall on the petitioner.
7. The next contention of Mr. Fazle Ghani, was that Mr. Ghulam Kadir, Drugs Inspector, was inimical to the petitioner and had involved him in several cases of spurious drugs under the Drugs Act, 1940, and for that reason the proceedings should be quashed. To say the least every case has to be decided on its own facts and no case can be quashed simply on the ground that the complainant is inimical to the accused, more so, when the complainant is a public servant who is bound to perform his duties even if the same involves several prosecutions. However, these are matters which can properly be agitated in the lower Courts and I am aware that if these grounds are taken before the lower Court or Courts the same shall be given due consideration regardless of what views I may have expressed.
8. Coming to the question of maintainability of the revision application reliance has been placed on a decision of the Supreme Court in case of Abul Hossain Sana v. Sewalal Agarwala and another (PLD 1962 SC 242). The relevant portion on which reliance is placed is as follows:-- "An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar, will practi--cally have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted. There is no reason for holding that it is only in the case of a judgment that a fresh exercise of the same jurisdiction is barred. As long as there is no provision for a review, proceedings once taken on the merits cannot be re-opened. Of course, the revisional Court has full powers in all cases where any sufficient reasons exist to direct fresh inquiry for the bar itself is based on a general principle and is not to be regulated by any techni--cal considerations."
This decision does not help the petitioner because their Lordships had clearly laid down that a revisional Court has full powers in all cases where any sufficient reason exists to direct fresh inquiry and no rule has been laid down to the effect that an order of discharge after examination of all the evidence cannot be inter--fered with. Indeed such a narrow interpretation would render the provision of section 436, Cr. P. C. Nugatory. I cannot possibly see any bar to the institution of revision application for setting aside an order of discharge, if the evidence has been misinterpreted or mis-read or when the inferences drawn from the evidence; are in violation of any specific provision of law. In such cases it shall be duty of the Sessions Court to order further inquiry so that the relevant issues may be reconsidered by a Court in the light of the directions of the revisional Courts. In short I am of the opinion that this remedy availed of by the complainant is not barred and that being so the revision application in Sessions Court is certainly competent.
9. Under these circumstances, I find no force in this petition which is hereby dismissed.