1. HAMOODUR RAHMAN, C. J-The appellant in this case, who is the proprietor of the Unison Chemical Works, Lahore, manufactures and supplies drugs throughout West Pakistan.
2. On the 16 of October 1961, he supplied Tincture Benzoin to Messrs Taj Medical Store of Tando Muhammad Khan under invoice No. 8810. Subsequently, on the 6 of August 1962, the Inspector of Drugs, Hyderabad Region, inspected the said Medical Store and purchased four bottles of Tincture Benzoin as a sample for chemical analysis. He left one bottle with the proprietor of Taj Medical Store and sent another bottle to the Government Analyst, Karachi. The report of the Government Analyst and of the Chemical Examiner, Govern--ment of West Pakistan, revealed that the drug was not of standard quality.
3. A prosecution was, accordingly, launched against the pro--prietor of Taj Medical Store; but, during the trial, it transpired that the drug had been manufactured and sold by the appellant through his distributors. As such, another case under the Drugs Act, 1940, was started against the appellant on the 9 of August 1963.
4. The appellant was tried by the Civil Judge and First Class Magistrate, Tando Mohammad Khan, who acquitted the appellant holding that since no copy of the report of the Government Analyst had been supplied to the appellant as required by subsection (2) of section 25 of the Drugs Act, 1940, the report cannot be treated as conclusive evidence of the facts stated therein. Hence in the absence of any other evidence, the case against the appellant was not proved.
5. As against this, the State came up on appeal before the High Court and a Division Bench of the former High Court of West Pakistan, Karachi Seat, took the view that the report of tie Governmentth th th Analyst and testimony of the Inspector of Drugs and of P. W. Khan Muhammad, the proprietor of Taj Medical Store, and the respondent's own admissions, are suffi--cient evidence of the fact that the respondent manufactured for sale and distributed Tincture Benzoin of a standard which was in contravention of the provisions of the Drugs Act, 1940, and the rules thereunder." The acquittal was accordingly set aside and the appellant was convicted and sentenced to a fine of Rs. 500 only, in default, simple imprisonment for six months.
6. With regard to the non-compliance with the provisions of subsection (2) of section 25 of the Drugs Act, the High Court took the view that, reading section 25 as a whole, "the effect of the second part of subsection (3) on the respondent's case is only this-that the report cannot be treated as conclusive evidence against the respondent as no copy of the report was supplied to him. But under the first part of the subsection, there is a presumption that the facts stated 9n the report are correct. This presumption, unless rebutted by contrary evi--dence, can be sufficient basis for the conviction of an accused."
7. Leave was granted in this case on the 22 of November 1966, to consider whether: -
(1) Under section 25 of the Drugs Act the Analyst's report could be treated as conclusive evidence of its contents in the absence of compliance with the provisions of subsection (2 of the said section);
(2) It was proved that the bottle, which was sent for chemical examination was the same which was supplied by the petitioner.
8. Learned counsel appearing in support of this appeal has contended that the provisions of subsection (2) of sec--petition 25 of the Drugs Act of 1940 are mandatory and the non-compliance with the said provisions renders the entire proceedings invalid.
9. Section 25 reads as follows: - "25-(1) The Government Analyst to whom a sample of any drug has been submitted for test for analysis under sub--section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the warrantor, if any, named under the proviso to subsection (3) of section 19, and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in con-- troversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory where a person bas under subsection (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug produced before the Magistrate under subsection (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under subsection(4) shall be paid by the complainant or accused as the Court shall direct."
10. It will be observed from this that subsection (2) requires that copy of the report of the Government Analyst shall be delivered to the person from whom the sample is taken and another copy to thend warrantor, if any,named under the proviso to sub-- section (3) of section 19.
11. Then comes subsection (3) which makes the report evidence of the facts stated therein and furthermore makes it conclusive "unless the person from whom the sample was taken or the said warrantor has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report."
12. It will thus be seen that the contents of the report not only prove themselves but are also considered to be conclusive unless objection is made. In the present case, it is contended on behalf of the appel--lant that since no copy of the report was supplied to the appellant, the conclusiveness never attached to the report and, therefore, the trial Court was right in taking the view that there was no evidence at all.
13. We regret our inability to concur with such a conclusion. Subsection (3) of section 25 provides the consequence of non---compliance with the provisions of subsection (2) of the said section. Thus, if no report is supplied, all that happens is that the contents of the report do not become conclusive evidence; but they are nevertheless evidence and rebuttable at the stage of the trial. This does not mean that at the trial the contents of the report cannot be utilized as evidence.
14. The evidence with regard to this was fully considered by the trial Court. It found that "it is an undisputed fact that the accused is a manufacturer of a Tincture Benzoin and he had supplied the same drug to the Taj Medical Store, Tando Mohammad Khan" and furthermore that "there can be no doubt that the Tincture Benzoin seized by the Inspector of Drugs is the same manufactured by the accused at the Unison Chemical Works Lahore.
15. This finding has been confirmed also by the High Court, and we see no reasons to doubt its correctness. We have ex--amined the evidence with the assistance of the learned Counsel for the appellant and we find that the evidence abundantly establishes this fact. The bottle, which was seized, bore the labels of the appellant and one of such bottles was sent to the Chemical Examiner.
16. The mere fact that the bottle was not sealed does not demolish the direct evidence of the proprietor of Taj Medical Stores.
17. The conclusion that the non-compliance with the provisions of subsection (2) does not make the report inadmissible to evi--dence appear also to be correct.
18. The appellant has only to thank himself for his conviction. If he had objected to the correctness of the report the Court could have even at the trial stage acted under subsection (4) of section 25 and sent the contents again for examination. This provides that where objection has been taken to the correctness of the report, the Court may send the sample for re-analysis and for a report in writing signed by or under the authority of the Director of the Central Drugs Laboratory and such report is then to be conclusive evidence of the facts stated therein. Had this been done then the appellant would also have had an opportunity of testing the contents again.
19. Therefore, the intention of the Legislature appears to be merely give an adequate opportunity to the person charged to challenge the correctness of the report. If this has not been done then the contents of the report become conclusive evidence. In any event, the provisions are clear and leave no room for doubt that if the copy of the report is not supplied to the accused, the report is, nevertheless, admissible in evidence and proves itself but its contents are not conclusive evidence On the other hand, if a copy has been supplied and the appel--lant does not raise any objection within the time prescribed, I then the report becomes conclusive evidence and cannot even be rebutted,