1. SYED HAIDER ALI PIRZADA, J.--- This Criminal Acquittal Appeal has been directed against the order of acquittal passed by the Drugs Court of Sindh and Baluchistan at Karachi dated 8-10-1986 whereby the respondents have been acquitted.
2. Briefly stated the facts of the case are that on 18-3-1981 at about 11-00 a.m. P.W. 1 Ali Akbar, the Drug Inspector at Karachi visited Messrs Hameed Medical Store, Commercial Area, Defence Society.
3. Hameed was present he was proprietor and incharge of the shop. He found among other drugs at the shop, packets of Asprin manufactured by Messrs Aspro Nicholas (Pakistan) Ltd. He collected packets of Asprin from the shop from the pack of one thousand tablets, which were stocked in the shop for sale. He collected the samples on Form-2 and obtained the signature of Hameed. He produced Form-2 as Exh.13. Then he sealed all the tablets of the said drug in four portions separately in equal numbers in presence of Hameed and gave one sealed packet to Hameed and obtained his signature on the receipt, which he produced as Exh.14. Then he sent one sample to the Government Analyst Director C.D.L. For the purpose of test and analysis. He produced his letter as Exh.15. In all, the secured 200 tablets, which he divided in four portions equally of 50 tablets each. All the tablets were packed in paper strips. Then he sent one sample to Chairman, Provincial Quality Control Board vide his letter No.307/81 dated 13-3-1981, which he produced as Exh.16. Then he received test report dated 6-4-1981 from the Director Central Drug Laboratory, which he produced as Exh.17. According to this report the sample of Asprin tablet batch NoAST/182-A/80 was declared to be not of standard quality. Then he wrote letter to Messrs Hamid Medical Store and asked them to produce the bill warranty. He produced the copy of the letter as Exh.18. He also sent registered letter to Messrs. Hameed Store alongwith test report. He produced the copy of letter alongwith postal receipt as Exh.19 and Exh.19-A. Messrs Hamid Medical Store supplied the bill warranty of Messrs. Muller and Phipps alongwith covering letter, which he produced as Exhs.20 and 20/1. Then he contacted Messrs Muller and Phipps for production of bill and warranty vide his letter, which he produced as Exh.21. Messrs Muller and Phipps submitted a bill and warranty regarding the said drug having purchased the same from Messrs Aspro Nicholas (Pakistan) Ltd. He produced their letter alongwith covering letter as Exhs.22 and 23. Then he contacted Messrs Aspro Nicholas with his letter dated 28th May, 1981. He produced the letter alongwith postal receipt as Exh. 24 and 24/1. He also sent sample to them alongwith test report. He received their reply, which he produced as Exh.25.
4. Then he referred the matter to the Secretary, Provincial Quality Control Board vide his letter, which he produced as Exh.26 seeking the permission for prosecution. The show-cause notice was issued to respondent No.1 by the Secretary, Provincial Control Board. He produced the notice as Exh.27. The representative of the respondent No.1 appeared before the Board and requested for retesting.
5. Accordingly, Secretary Provincial Quality Control Board referred the sample to National Institute of Health, Islamabad for retesting. He received the report which he produced as Exh.28. The Drugs were found again to be substandard. The PQCB granted permission for prosecution, which he produced as Exh.29. He filed the complaint before the Drugs Court which he produced 'as Exh.30.
6. The Drugs Court framed the charge. The respondents denied the charge and claimed to be tried.
7. The Drugs Court recorded the evidence of P.W.1 and also recorded statements of the respondents under section 342, Cr.P.C. The respondent No.1 filed written statement. During the pendency of the trial, application under section 265-K of the Code of Criminal Procedure on behalf of the present respondents was moved and after giving proper notice to the State and hearing the parties, the order for their acquittal was passed. The State has come up to this Court in this appeal and the order of acquittal has been challenged by Mr. Muhammad Hayat Qureshi, learned counsel appearing for the State.
8. Mr. Qureshi contended that the order of acquittal was premature.
9. It is established principle of law that in an appeal from acquittal the accused starts with the double presumption in his favour. It is well-settled principle of law that it is for the prosecution to make out their case and until they do so beyond all reasonable doubt, the accused must be presumed to be innocent. The other principle is that the accused having succeeded in securing an acquittal from the Court, the Appellate Court will not interfere until the State shows conclusively that the inference of guilt is irresistible and the indications of error in the judgment are clear and the evidence more cogent and convincing is available: The accused is entitled to ask the Court to consider all the possible grounds, which may be raised against acquittal unless it is established beyond all reasonable doubts by the evidence proposed to be led in the case that the accused can be held guilty of the offence with which he was being charged and in considering this aspect due weight ought to be given to the findings of the trial Court and its opinion concerning the effect of the evidence.
10. Mr. Qureshi contended that provisions of subsections (1) and (2) of section 22 of the Drugs Act, 1976 (hereinafter referred to as the Act) are not attracted in the present case.
11. On the other hand, Mr. Puri submitted that the provisions of subsections (1) and (2) of section 22 are applicable to the report submitted by National Institute of Health, Islamabad. He submitted that the Provincial Quality Control Board was not authorised to refer the sample to National Institute of Health.
12. We have considered the contentions of the learned counsel for the parties with great care. We have perused the R&P of the case. We will take up the contention whether the report submitted by the National Institute of Health, Islamabad beyond the period prescribed by section 22(2) of the Act is effective. In order to appreciate the contention of the learned counsel, it is advantageous to reproduce section 22(1) and (2) as under:-- "22. Reports of Government Analysts.---(1) The Government Analyst to whom a sample of any drug has been submitted for test and analysis under subsection (3) of section 19 shall deliver to the Inspector submitting it a signed report in guadruplicate in the prescribed form and forward one copy thereof to the authority as may be prescribed.
(2) The Government Analyst, as far as may be, shall submit the report referred to in subsection (1) within sixty days of the receipt by him of the sample of the drug and, if he is not able to do so for reasons beyond his control, shall communicate the reasons to the Inspector in writing and shall endorse its copy to the Board concerned who shall have the sample tested from the same or any other Government Analyst or a Government Drug Testing Laboratory or any other Laboratory and shall ensure the receipt of results of such test and analysis within a further period as may be prescribed and shall make the test report available to the Inspector for further action:"
13. Section 22(1) of the Act provides that the Government Analyst to whom a sample of any drug has been submitted for test and analysis under section 19(3) shall deliver to the Inspector of Drugs a signed report in quadruplicate in the prescribed form. In the instant case the Secretary, Provincial Quality Control Board sent the sample with Memorandum No.SPQL/(6-M-29) on 20-12-1981 to National Institute of Health, Islamabad which was received there on 24-12-1981. The test report NoA- 129 is dated 27-2-1982 (Exh.28). Admittedly the report was received after lapse of sixty (60) days.
14. The burden is on the prosecution to prove that time was extended by the competent authority. In the absence of any documentary evidence, it cannot be presumed that the period was extended.
15. Instead of producing any documentary evidence, it was contended that the provisions of subsection (2) of section 22 are not attracted to the retest report.
16. "The words of sections 19(2) and 22(2) & (4) and Rule 16 and Form 6 of the Drugs (Federal Inspector, Federal Drug Laboratory or Federal Government Analysis) Rules, 1976 require that the provisions of the said Act and Rules should be observed with complete strictness and where the report was not in accordance with the legal provisions the appellant cannot be convicted on such report. Where statutory powers are conferred and specific provisions are made in the statute as to the manner in which the powers are to be exercised, they should be specifically carried out in accordance with the statute."
17. This decision was followed in Muhammad Amin Khan v. Muhammad Siddiq 1984 P Cr. L J 1580, Khalid Mansur and another v. The State 1985 P Cr. L J 281, Messrs W. Woodwards (Pakistan) Ltd. v.
18. The State 1985 P Cr. L J 2064 and The State v. Messrs Kalco Pharma and 4 others 1990 P Cr. L J 865 and in view of these decisions, it cannot be said that the finding of the Drug Court that the test report in the instant case is not according to law, it is not correct. Drug Court has rightly come to the conclusion that the report shall not be conclusive as provided under section 22(4). We, therefore, find no force in the contention of Mr. Qureshi and the same is rejected.
19. We now come to the second test report (IIxh.28). Type objection was raised on behalf of the respondents that the Provincial Quality Control Board was not competent to send the sample for retesting by way of second opinion, Subsection (4) of section 22 provides that a report of Government Analyst shall be admissible in evidence as conclusive unless the person from whom the sample is taken or the said warrantor has within thirty days of the receipt of copy of the report, notified in writing to the Inspector or Drugs Court, or as the case may be, before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
20. Subsection (5) further provides that after a person has notified his intention as required under subsection (4), the Drug Court or the Board concerned 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 lying with the Board concerned under subsection (3) of section 19 to be sent for test or analysis to the Federal Drug Laboratory or any other Laboratory specified for the purpose by the Federal Government. It is very clear that only the Drug Court or the Board have been specifically specified to be competent to send the sample for retest or second report. Provincial Quality Control Board is not mentioned in subsections (4) and (5) to be one of the specified authorities to be competent to send the sample.
21. In the instant case, admittedly the Provincial Quality Control Board sent I the sample for retest in contravention of the provisions of subsections (4) and (5) of section 22 of the Act, as such the second report having been obtained by the Provincial Quality Control Board is illegal and has no warrant in law.