Haji Abdullah Jan is accused of offence under section 23/27 of Drugs. Act, 1970 r/w section 424/468/471/109/482/483, P.P.C. r/w section 5(2) of Act 11 of 1947 registered by F.I.A. Quetta vide F.I.R.
No.4/91, dated 21st October, 1991.
2. Concisely relevant facts related for disposal of this case are that a case under aforesaid provisions of law was registered against Muhammad Ismail, Muhammad Hussain and Ahmad Hussain by F.I.A. On the basis of information to the effect that these persons under the command of some Federal Provincial Drugs Inspectors of Faisalabad are dealing with business of manufacturing of spurious drugs etc. Accordingly a case was registered and above-named persons were arrested and 75 cartons of medicines were also recovered from the godowns of Pakistan Azad Goods Transport Company which were brought from Faisalabad to Quetta in the name of Muhaminad Hussain and Ahmad Hussain. After having taken into possession above articles, Drug Inspector Sultan Ahmad issued a certificate that medicines appear to be spurious drugs which are not fit for human consumption. It was also noticed that accused Muharymad Hussain and Ahmad Hussain have also been found dealing in drugs with the proprietor/owner of Al-Sharique Traders Bakhtiar Building, Jinnah Road, Quetta and they have executed warranty in favour of Al-Shafique Traders to the effect that if at any stage any defect etc. -is found in the medicines Ahmad Hussain and Muhammad Hussain would be responsible for it. F.I.A. Authorities arrested the above two named persons and Muhammad Ismail and they were subjected to interrogation. Thereafter an application was moved by them for their release on bail before Special Judge Anti-Corruption who vide order dated 10-11-1991 dismissed the same as such a Criminal Bail Application No.316 of 1991 was moved in this Court, which was disposed of vide order dated 12-12- 1991, whereby bail was granted to Muhammad Hussain and Ahmad Hussain. However, in respect of accused Muhammad Ismail bail application was rejected.
3.In the afore quoted order of this Court following observations were made '
"Before dilating upon respective contentions of both the parties, it is necessary to observe that prosecution has not Investigated the case properly, so much so, the proprietor of Al-Sharique Traders who also deals in medicine business and accused-applicants Muhammad Russain and Ahmad Hussain had issued warranty in his favour, has not been examined in order to probe in the matter properly, as such, for effective and proper investigation of the case, F.I.A. Authorities may entrust investigation of this case to some other competent officer, who could handle the matter in a proper way."
4. In persuance of above observation investigation of the case was handed over to some other officer who examined applicant Haji Abdullah Jan because he is the owner/proprietor of Al- Shafique Traders and following medicines were taken from his. Possession:-
(j) Anpicin capsules
(ii) Actifed P cold tables
(iii) Trifed cold tablets Copy of Invoice No.750 dated 4-3-1991 issued by Western Traders, Chiniot Bazar, Street No.3, Faisalabad Distributors Pharmaceuticals was produced by the applicant which shows that Al- Shafique Traders has received aforesaid medicines through Chaudhary Ahmad Hussain. In the invoice following warranty was also appended:- "I......Being person resident in Pakistan carrying on business at Chiniot Bazar, Faisalabad under the name of ... ... Hereby give this warranty that the drugs described above as sold by me specified and contained in the Bill of sales do not contravene in any way the provisions of section 23 of the Drugs Act, 1976."
Investigation reveals that statement of one Muhammad Amin under Section 104, Cr.P.C. Was also recorded who stated that he has given his licence to Muhammad Rafique through a person Akhtar and he was receiving Rs.400 from him and later on Akhtar has given this licence to Abdullah Jan who is running the business of selling of medicines who is paying him Rs.8W per month. Likewise statement of Salesman of applicant's shop namely; Amir Muhammad was also recorded who confirmed that applicant used to sell the aforequoted medicines at his shop.
1 5. During pendency of the case the F.I.A. Authorities were directed to procure the report from Central Drugs Laboratory, Karachi. As there was some delay in procuring the report, therefore, the applicant was admitted to interim bail vide order dated 16-1-1992.
6. Mr. Muhammad Riaz Ahmad learned Standing Counsel now has produced in Court three copies of report of Chemical Analyser indicating analysis of Anpicin capsules, Active P cold tablets and Trifed cold tablets. In respect of these. Medicines it has been opened by the concerned analyst that capsules- and: tablets arc made of starch and lactose. It also rinds mention in the report that the medicines are not - adulterated/sub-standard/mis branded/spurious as defined in the Drugs Act, 1976. On perusal of report and in view of the definition of Spurious Drug under the Drugs Act, 1976 prima facie report was found doubtful as such Mr. Muhammad Riaz Ahmad Standing Counselwas asked to get certain clarification from the concerned analyst to the effect that if a medicine contains starch or lactose which is not an active ingredient of any drug then how it could, be said that medicines arc not as such Dr. Muhammad Younus Malik who has tested the medicines in Laboratory was summoned by the Standing Counsel to clarify the above position before the Court who explained that in fact these medicines arc Unani medicines, therefore, do not fall within the mischief of provisions of section 23 or 27 ofthe Drugs Act. However, he was enquired whether in the report he has mentioned that the medicines are Unani medicines. His explanation was that such fact has not been mentioned by him ' and in his o wn handwriting he endorsed on all the three reports that he has not described that the drug is Allopathic, Unani, Avruvedic and Bio-chemic. Mr. Muhammad Younus Malik also furnished separate explanation stating that the medicines are not Spurious drugs according to Drugs Act, 1976 because no allopathic drug has been claimed on the label. While the Trifed P. Cold tablets, Active P. Cold tablets, Oxy-Talrem Capsules, claim herbal ingredients as mentioned on the Carton. The contents of his above explanation reads as follows:-- "in the opinion of undersigned starch and lactose are nodrugs. These have no, pharmacological action. These are excipients. Starch is used as a binder and disintegrater whereas lactose is used as a fillcr. Kaolin is an active allopathic ingredient according to Drugs Act, 1976.
The sample of Anpicin capsule, Trifed cold tab. Active P. Cold Tab. Oxy Tatrem Caps., Chlorilcap are not spurious drug-, according, to Drugs Act, 1976 because no Allopathic drug has been claimed on the abel. While Trifed cold tab. Active P. Cold tab. Oxy-Tatrem Cap.Claim herbal ingredients as mentioned on the Carton: Spurious drug means a drug i) which purports to be a drug but does not contain the active ingredient ofthat drug; or ii)which purports to be the product of a manufacturer, place or country of whom or of Which it is not truly a product; or (iii)which is importer or exported or sold or offered or exposed or sale under a particular name while actually it another drug; or (iv)the label of which bears the name of an individual or company purporting to be its manufacturer or producer which individual or company is fictitious or does not exist."
7.Mr. Shakeel Ahmad, learned counsel for applicant in support of the application contended as under:-- (i)Applicant is bona fide seller and purchaser and he has warranty in his favour issued by Western Traders, Faisalabad who are manufacturers of the medicines, therefore, under section 32(3) of Drugs Act, 1976 applicant cannot be held liable for violation of section 23 of Drugs Act.
(ii)Chemical Analyser in his report has in clear terms expressed his opinion that the medicines are not spurious, adulterated etc., therefore, no case can be made out against the applicant Haji Abdollah Jan.
(iii)F.I.A. Authorities have registered the case without lawful jurisdiction because such case can only be registered at the report of Federal or Provincial Drug Inspector as such whole proceedings in the instant case are illegal and bad in the eyes of law.
8. On the other hand Mr. Muhammad Riaz Ahmad learned Standing Counsel for State argued that applicant is not in possession of a legal warranty therefore, protection of section 32(3) of Drugs Act would not be available to him. The report of Chemical Analyser in view of inquiry conducted by the Court cannot be validly considered a conclusive piece of evidence in favour of applicant to absolve him from accusation. The F.I.A. Authorities have registered the case in accordance with the law because besides the offences of Drugs Act applicant has also been charged for the ' offences of the Penal Code as well as Anti-Corruption Act 11 of 1947, therefore, merely for this reason that proceedings have not been launched properly applicant cannot make out a case for his release on bail.
4. 1 have heard learned counsel for parties and the record of the case has also been gone through carefully in order to reach on a tentative conclusion in respect of the involvement of the applicant in commission of the offence. So far514 first contention of the learned counsel for applicant in respect of protection, under section 32(3) of the Drugs Act is concerned that is not available to him because 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 32 if he -establishes that he aid not know, and could not with reasonable diligence have ascertained, that the drug in any way contravened the provisions of this Act and that the drug while in his possession remained in the same state as when he acquired it or he had acquired the drug from a duly licensed manufacturer or his authorised agent or an importer or an indentor resident in Pakistan under a written warranty in the prescribed form stating, in particular, the batch number of the drug and signed by such person that the drug does not in any way contravene the provisions of section 32 and that the drug while in his possession was properly stored and remained in the same state as when he acquired it and that the drug has been manufactured by a manufacturerholding a valid licence to manufacture drugs and permission to manufacture that drug. Besides invoice, which was taken in possession by F.I.A.
No other document has been shown particularly licence of the manufacturing in order to show that under the law 'he was authorised to manufacture and sell the medicines. Therefore, at this stage I am inclined to hold that the warranty which is being relied upon by the applicant has not been issued under any lawful authority. It appears that the Firm from whom medicines were purchased by the-applicant is also not a registered one.
10. Mr. Shakeel Ahmad greatly emphasised that as in the Chemical Analyser's report expresscly it has been opined that the drugs are not adulterated/spurious etc. Therefore, presumption would be that applicant is not involved in any offence. But the Chemical Analyscr's report prima facie is not confidence inspiring because as per his explanation which he offered in Court, he has formed his opinion that the medicines are Unani because on the label pasted on Cartons/boxes it is mentioned that these are herbal medicines. Chemical Analyscr is required to make his opinion on the basis of chemical tests which are to be carried out in laboratory. During proceedings I enquired from Dr. Muhammad Younus Malik that on basis of which material he has formed his opinion and why in the report he has not mentioned that medicines recovered from possession of applicant are of Unani system of treatment, he could not offer satisfactory answer. However, with red ink he mentioned on reports that he has not specified whether the medicines arc Unani, allopathic etc. According to section 3 clause (zb). Spurious drug means a drug which purports to be a drug but does not contain the active ingredients of that drug. Admittedly medicines were recovered from possession -of the applicant which he was selling at his shop purported to be the drug and according to the Chemical Analyser's report the medicines contain only lactose and starch which means that it has no active ingredient of the drug. Thus in view of these facts the report of Analyscr is not free from doubt. So much so explanation offered by Chemical Analyser referred to above also does not appear to be satisfactory. Therefore, I am of the opinion that the medicines found in possession of the applicant are de-registered and spurious.
There is no material available on record to conclude that these medicines belong to Unani system of treatment. It may not be out of place to mention here that the Chemical Analyser's opinion is.
Sought for the aid and assistance of the Court. However, the Courts are competent to disbelieve such reports I no plausible reasons have been put forth by the expert. In the instant case no reasoning-,_ have been stated that how these medicines were not found spurious. In this behalf if any reference is required reliance can be placed on 1987 SCM R 117.7.
11. It is contended by learned counsel for applicant that FJA. Authorities have no jurisdiction to register case under the Drugs Act unless a complaint is made by the Drug Inspector. It. Is sufficient to mention here that this question does not require determination at this stage. Moreover, apparently no prejudice seems to have been caused to applicant due to non-registration of case according to Drugs Act. Even otherwise there is consensus of the opinion that due to lacuna in he registration of the case proceedings shall not be violated. In this behalf reference can be made to AIR 1955 SC 196 and Muhammad Ashiq v. Martial Law Administrator, Zone C (1980 PCr.LJ 97),1 thus this objection of the learned counsel is also overruled,
12. Mr. Shakeel Ahmad submitted that in near future there is no probability of submitting of challan against the applicant in the competent Court of law, therefore ' he contended that on this ground as well the applicant is entitled for grant of bail. I have enquired from learned Standing Counsel that as to why challan has not been submitted in the Court in spite of lapse of sufficient time who replied that due to completion of formalities of the case challan could not he submitted. He further submitted that probably it would take another three months in submission of challan. As the accused . s involved in a heinous offence -of selling spurious medicines which has created havoc for the human life in the society, therefore this ground itself is not sufficient for release of applicant on bail. However, directions arc made to prosecution to expedite the investigation of the case as early as possible.
Even Otherwise statedly applicant is an Afghan there is apprehension of his absconsion if released on bail.
II. Before parting with this judgement I feel obligated to observe that in spite Of clear directions contained in the order of this Court in Criminal Bail Application No.316 ofl996 dated 12-12-1991 F.I.A.
Authorities have failed to entrust investigation of the case 10 a competent officer, the Incharge of the' investigationof case appears to be a Young officer having no experience of dealing with important investigations and perhaps this is the reason that manufacturers of the medicines who have their laboratories and Head office at Faisalabad have not yet been arrested. So much so the investigation papers reveals that no concrete steps have been taken for causing their 'arrest as such copy of this judgement be sent to the Direct or-General F.I.A., Islamabad as well as Deputy Director F.I.A. Balochislant a Quetta lor intimation and necessary action if they so desire.
14- It is also important 10 observe that the witness Muhammad Amin had deposed in his 164, Cr. P.C.
Statement that he has given his licence to applicant in lieu whereof he is receiving Rs.8w from him per month. Meaning thereby hat neither the applicant nor the licence-holder is complying with the revisions of rules 61 and 05 Of West Pakistan Drug Rules, 1958. According to rule 65 any drug specified in Schedule E of any preparation containing any Lich drug and any drug supplied on the prescription of a registered medical practitioner shall, if compounded or made up on the licensee- --s premises, be compounded or made up by or under the direct and personal supervision of a qualified person. The supply, otherwise than by way Of wholesale dealing of a drug specified in Schedule E or any preparation containing any such drug and Of any drug supplied on the prescription of a registered medical practitioner shall be effected only by or under the personal supervision of a qualified person. Therefore, Federal and Provincial Health Departments are under legal obligations to ensure the compliance of aforesaid rules because if a qualified person such like in the instant case is not attending the shop and had handed over his licence to the trader/dealer just for the purpose of displaying it on a prominent place of the shop in order to indicate that a man has been engaged by him would provide free hand to traders for selling adulterated de-registered spurious medicines. In this behalf concerned authorities should keep strict check on all the medical stores that duly qualified persons are engaged by them for whole time and if qualified persons are violating the rules as prima facie in the instant case had happened then action seeking for the cancellation of their licences must be initiated to save, the General Public specially the patients from consuming adulterated spurious medicines. The above observations be conveyed to Federal as well as Provincial Health Departments for intimation and appropriate action.
15, For the foregoing reasons application is rejected and interim bail granted to applicant vide order dated 12-12-1991 is hereby recalled. Applicant is present in Court, he be taken into custody and sent to judicial lock-up. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.