1. The appellant was convicted by the S. D. M., Civil Lines. Karachi for an offence under section- 18(x)
(1) read with section 27 of the Drugs Act, 1940 and sentenced to imprisonment till the rising of the Court and pay a fine of Rs. 1,OOJ or in default to undergo R I. For 6 months. The appeal against the conviction and sentence was dismissed by the learned Additional Sessions Judge, Karachi.
2. Consequently the present revision has been filed.
3. The appellant who is the proprietor of M/s. Roshan Trading Company, had sold sulphadiazine tablets to M/s. Rehmat Medical Store, Soldier Bazar, Karachi vide invoice No. 1677 dated 4-5-66. The medical store of Mr. Rehmat was searched by Mr. Ghulam Nadir Inspector of Drugs on 7-9-66 and he found Sulphadiazine tablets manufactured by Pakistan Chemical and Pharmaceutical Works, Lahore. The proprietor of the medical store was directed not to dispose of the tablets. The Inspector again inspected the store on 16-9-66 and took samples of the tablets. The sample was divided into four parts, one part was given to the proprietor, one part was sent to the Chemical Analyst, Karachi, who reported that the drug was of sub-standard quality. The copy of the report was sent to M,/s. Rehmat Medical Store. They informed the Inspector that they had purchased the drug from the applicant. Consequently, a complaint was filed against the applicant. He was served with a warrant for his appearance in Court on 4-4-67. He moved an application stating that he had purchased the medicine from Pakistan Chemical and Pharmaceutical Works, Lahore, through their agent Minhaj Brothers, Lahore, and had obtained receipt dated 27-4-66 along with warranty duly issued by them. He admitted that he had sold the tablets to M/s. Rehmat Medical Store on 4-5-66.
4. The learned counsel for the applicant raised several pleas before me but I confine myself to one of them which will dispose of this case. It was urged by him that the case of the applicant was covered by subsection (3) to section 19 of the Drugs Act. Section 19 reads as under: --- "(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having brought? Only for the purpose of test or analysis, has not been prejudiced by the sale.
(2) For the purpose of section 18 a drug shall be deemed to be misbranded or to be below standard quality only by reason of the fact that-
(a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug or to conceal its inferior quality or other defects; or
(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it: provided that this clause shall not apply in relation to any sale or distribution of the drug occurring after the vendor or distributor became aware of such intermixture.
(3) A person, not being the manufacturer of a drug or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves--
(a) that he did not know, and could not with reasonable diligence have ascertained, thatthe drug in any way contravened the provisions of that section, and that the drug while in his possession remained in the same state as when he acquired it ; or
(b) that he acquired the drug from a person resident in (Pakistan) under a written warranty is the prescribed form and signed by such person that the drug does not in any way contravene the provisions of section 18, and that the drug while in his possession remained in the same state as when he acquired it: Provided that a defence under clause (b) shall be open to a person only-
(i) if he has, within seven days of the service on him of the summons, sent to the Inspector a copy of the warranty with a written notice stating that he intends to rely upon it and giving the name and address of the warrantor, and
(ii) if he proves that he has, within the same period, sent written notice of such intention to the said warrantor."
5. It is an admitted position that the applicant was not the manufacturer of the drug or agent of the manufacturer, but he had purchased the drug frown the manufacturer for sale. His case was, therefore, to be covered by subsection (3). Clause (a) to subsection (3) lays down that the person did not know and could not with reasonable diligence have ascertained that the drug in any way contravened the provisions of section 18. There is no allegation that he knew nor he was expected to know that the drug was of sub-standard, but at the same time he could with reasonable diligence have ascertained. He made no effort to ascertain it. Consequently his case is not covered by this clause. So far clause (b) is concerned it requires that the person must obtain a written warranty from the manufacturer that there is not contravention of section 18. The applicant produced the written warranty. In this connection the learned Additional Sessions Judge observed that the applicant had produced only a- copy of it and not the original. It seems that he had not properly seen the warranty. It was the original warranty which had been produced and not the copy. The genuineness of the warranty was not challenged. This clause has to be read with the previous which lays down that the person must send a copy of the warranty with a written notice to the Inspector within 7 days of the service of summons on him and send another written notice to the warrantor within the same period. The evidence on record proves that this compliance was also made. He had sent a letter Exh. P-1/K to the Court on 20-3-67 i.e. Within four days of the service of the warrant which was served on 16th March 1967 with a copy to the Inspector and the warrantor.
6. This document was brought on record in the evidence of Ghulam Kadir, Inspector. The receipt of a copy of this document was admitted by Mr. Ghulam Kadir. It was however, urged by the learned counsel for the State that beyond the word of the applicant there was no evidence to show that the copy was actually sent to the warrantor. Of course, no postal receipt has been produced but it may be that it was sent by ordinary post. I am not prepared to accept that the applicant has made a false statement. The document itself shows that the copy was endorsed to the Inspector as well as the warrantor and there is no reason why the applicant should not have sent the copy to the warrantor. It is further proved by the evidence of Ghulam Kadir Inspector that proceedings had been taken against the manufacturer and prosecution was launched but he was untraceable and that they have not succeeded in effecting the service. It appears that the manufacturer absconded after the prosecution was launched.
7. Thus, it has been established that the case of the applicant I covered by subsection (3) to section 19 and he had mad compliance with the provisions of law. Consequently, he " cannot be held to be guilty of the offence. I, therefore allow the revision application and set aside the conviction and sentence passed against the applicant. Fine, if paid, to be refunded to him.