' QAZI HAMID-UD-DIN, J.---This is an appeal preferred against the judgment, dated 31-5-1994 passed by the Chairman, Drug Court, N.-W.F.P., Peshawar, whereby the appellants have been convicted under section 27(4) of the Drugs Act, 1976, and sentenced to 3 years' R.I. Each with a fine of Rs,40,000 each, in default thereof to further undergo one year's R.I. Each.
2. The facts leading to this appeal, briefly stated, are that on 30-10-1987, Akbar Jan, Drug Inspector, inspected Nawaz Medical Store, D.I. Khan and took into possession Rexachlor Chloroquine Phosphate Injection bearing Badge No,3230, Registration No,002205 manufactured by S.J. & G.
Fazal Elahi (Pvt.) Limited Karachi. After analysis by the Government Analyst it was declared to be of substandard quality. In response to the notice issued by the Drug Inspector to Nawaz Medical Store, it was disclosed that the Drugs had been purchased from Messrs.' Haji Ghulam Nabi & Sons, Lahore, who produced invoice No,185, dated 15-4-1987 of Messrs New Medical Store Mandiwala Yousaf Building, Altaf Hussain Road, Karachi and further disclosed to have purchased the Drugs from S.J.&G. Fazal Elahi Karachi, therefore, they were accordingly served with a notice.
3. On 11-4-1988 the Provincial Quality Control Board, N.-W.F.P., Peshawar, after consideration of the case, approved for the prosecution of the appellants as they were Manager, Director and General Manager of Messrs S.J.&G. Fazal Elahi (Pvt.) Limited Company in the Drugs Court.
4. In the Drugs Court, the appellants were accordingly charged under section 27(4) of the Drugs Act, 1976, for contravention of mandatory provision of section 23(I)(a)(iv) of the Act. They pleaded not guilty. The prosecution to prove its case produced two witnesses. Allah Nawaz, Proprietor, Nawaz, Medical Store, D.I. Khan (P.W.1) is a marginal witness of form 5 (Exh.P.W.1/1) vide which the samples of Drug in question were obtained. Akbar Jan (P.W.2) is the Investigating Officer. He inspected Nawaz Medical Store, D.I. Khan and seized aforementioned drugs vide form 5 (Exh.P.W.1/1) which was sent to D.T.L., Lahore for test vide form 7 (Exh.P.W.2/1). Report of Government Analyst is Exh.P.W.2/2 stating that the drug was being not conforming to the physical specification of the injection as it was adulterated with particles and fibers.
5. The appellants when examined under section 342, Cr.P.C. Pleaded not guilty and claimed innocence. The trial Court, at the conclusion of the trial, convicted them-under section 27(4) of the Drugs Act, 1976, and sentenced them as mentioned above. Aggrieved of their convictions and sentences, the appellants have approached this Court in appeal under section 31(7) of the Drugs Act
6. We have heard learned counsel for the parties and perused the record with their assistance. The learned counsel for the appellants insisted that the appellants have committed no offence as per report of Analyst the drug containing the particles and fibers does not fall within the purview of definition of adulteration. He referred to No,127 of 1989 wherein their Lordships Mr. Justice Riaz Ahmad and Mr. Justice Raja Afrasiab Khan had held that particles and fibers are. Not covered under the definition of adulteration. He, secondly, submitted that the report of Government Analyst cannot be acted upon as he has not been appointed and no notification in this respect has been issued for such drugs or classes of drugs as required under section 16 of the Drugs Act. He next contended that the Drugs Inspector had no authority to inspect the premises as he was not appointed to do so as provided under section 17 of the -Drugs Act.
7. In our view the first point urged by Mr. Munir Ahmad Bhatti, Advocate, must succeed. The definition of adulterated or substandard drugs has been explained in section 3 of the Drugs Act. It is reproduced as under:-- "Section 3. Definitions.--- In this Act, unless there is anything repugnant in the subject or context,-
(a) "adulterated drug" means a drug--
(i) which consists in whole or in part of any filthy, putrid or decomposed substance or which contains any foreign matter, vermin, worm, rodent or insect; or
(ii) which has been manufactured, packed, or held under unsanitary conditions. Whereby it may have been contaminated with dirt, filth or any other foreign matter or whereby it may have been rendered injurious to health; or
(iii) the container of which releases any poisonous or deleterious substance which may render the contents injurious to health; or
(iv) which bears or contains as an ingredient a substance other than the prescribed substance; or
(v) with which any substance has been mixed or packed so as to reduce its quality or strength or for which any substance has been substituted wholly or in part; "
' There is nothing in the four corners of the definition reproduced above to show the report of sample (ExIt.P.W.2/2) to be consistent with the- definition of adulterated drug. To hold the drug adulterated or substandard, it must be declared as filthy, putrid or decomposed substance which contains any foreign matter, vermin, worm etc. Or manufactured under unsanitary conditions. The report also does not elaborate that particles and fibres were of such .a nature which render them injurious to health. Thus, the particles and fibres in the drug would not make it adulterated or for that matter substandard. Besides, the report does not give the protocols of the test or analysis as required under the rules which itself is a fatal defect as it deprives the person from whom the samples were taken or the warrantor of his right of giving notice under section 22 of the Act to the Inspector or the Court of his intention to adduce evidence in contravention of the report.
8. As regards the contention of appointment of Government Analyst through a Notification, we observe from the record that no such Notification describing the appointment of Government Analyst, as contemplated by section 16, in respect of such drugs or classes of drugs or such areas was ever made, therefore, the report of Government Analyst is of no authenticity as he was never appointed within the meaning of the Drugs Act. We hold that such report which is not given in prescribed manner is illegal and without lawful authority and, therefore, not admissible in evidence.
Similarly there is no such Notification as envisaged by section 17 of the Act to show the appointment of Akbar Jan (P.W.1) as Inspector prescribing the limits within which he could have acted as Provincial Inspector for the purpose of the Drugs Act.
9. No doubt it is an admitted fact that drug in question is manufactured by Messrs.' SJ&G Fazal Elahi Company but the appellants because of.The positions they were holding in the company as Director and Manager could be held guilty of offence only on the proof of existence of knowledge and consent or when SJ&G Fazal Elahi & Sons being a private limited company had been made accused and proceedings had been drawn up against it under section 34 of the Act which reads as under:-- "Section 34. Offences by companies, etc.--- Where the person guilty of an offence under this Act, is a company, corporation, firm or institution, every director, partner and employee of the company corporation, firm or institution shall, unless he proves that the offence was committed without his knowledge or consent, be guilty of the offence."
A perusal of section 34 makes it clear that if the company which is a juristic person is not impleaded as an accused, the employees of the company cannot bell"/k held guilty of the offence.
' In view of above circumstances we allow the appeal and acquit the appellants of the charges levelled against them. They be released forthwith if not required in any other case.