1. ' HAMID ALI MIRZA, J.--This is an appeal under subsection (7) of section 31 of the Drugs Act, 1976 directed against the judgment of conviction dated 28-4-1994 passed by Drug Court at Karachi, whereby the appellant - has been convicted under section 27(4) of Drugs Act and sentenced to pay fine of Rs,20,000 or in default thereof to suffer S.I. For three months.
2. ' The brief facts of the prosecution case, as disclosed in the complaint, are that the appellant is a proprietor of M.S. Wazeer Traders Wholesale Chemists and Druggists, Karachi and on 11th October, 1988 Drug Inspector Mr. Ghulam Rasool Halepota inspected the medical-store of Civil Hospital, Karachi and took and sealed the sample of Zinc Oxide Adhesive Plaster made in I.R.P. For test analysis. The Inspector sent one sealed portion of the sample to the Government Analyst, Karachi for test/analysis. The Superintendent, Civil Hospital, Karachi produced before the Inspector photo stat copies of purchase invoices Nos.307 and 308 with warranty of appellant/accused. The Inspector respondent received the Test Report No,3395 of 1987, dated 27-3-1988 from the Government Analyst who declared the said drug as of substandard quality, the Inspector thereafter, sent a Letter No,1000, dated 14th November, 1988 to the appellant/accused for production of purchased invoice with warranty who failed to produce the same, consequently Inspector by another letter dated 26-11-1988 sent a test report and sealed portion of said drug to the appellant but he again failed to produce the invoice with warranty, therefore, the case was referred to the Chairman Provincial Quality Control Board, Karachi on 29-12-1988 for permission to prosecute M/s. Wazeer Traders. Meanwhile, Mr. Ghulam Rasool Halepota, the Inspector, was transferred and he handed over the case papers to his successor Mr. Altaf Hussain Hakro, who received sanction to prosecute M/s Wazeer Traders, thereafter he filed complaint against the appellant Faqih Alam for violation of provisions of sections 23(1)(a) V, 23(1)(a) VII and section 27(2)
(b) read with sections 27(1)(a), 27(4) and 34 of the Drugs Act, 1976.
3. ' The trial Court framed charge under sections 27(1)(a), 27(2)(b) and 27(2) of the Drugs Act.
4. Prosecution examined P. W.1 Mr. Ghulam Rasool Halepota, DDI, P.W.2 Mr. Altaf Hussain Hakro and P.W.3 Mahboob Ali Soomro, R.M.O. Civil Hospital, Karachi. Accused was examined under section 342, Cr.P.C. Wherein he admitted to be proprietor of M/s. Wazeer Traders but showed his ignorance about taking of sample by Inspector Ghulam Rasool Halepota and having sealed the same for sending it to the Government Analyst. He admitted that he had supplied said drug to the Superintendent Civil Hospital Karachi through Exhs.Nos.14-A and 14-B with warranty. He also admitted that as per Exhs. Nos.15 and 18 and whether he was asked to produce bill of warranty to which he answered in the affirmative and he further stated that he had purchased the said drug vide Exhs. Nos. 20-A, 20-B and 20-C. He also examined himself under section 340(2), Cr.P.C.
5. Wherein he admitted to have sold the said drug to Civil Hospital, Karachi as per cash memos (Exhs.
6. Nos.14/A and 14/B) which bore his signatures and the same were supplied in emergency due to bomb blast which occurred in Saddar, Karachi.
7. ' After recording the above evidence and hearing the learned counsel for the parties, the trial Court passed the judgment of conviction against the appellant and sentenced as said above.
8. ' We have heard the learned counsel for the appellant and the learned A.A.-G. For the State and have gone through the record and proceeding of the case.
9. ' The first contention of the learned counsel for the appellant is that a complaint was lodged by Mr. Altaf Hussain Hakro, Divisional Inspector, against the appellant who was not competent in law to lodge a complaint and prosecute the appellant as required under section 30 read with section 19 of the Drugs Act, where under only Drug Inspector duly notified would be competent in law to lodge or initiate proceedings against the appellant/accused. He has placed reliance upon (i) 1996 SCM R 767 (The State through Advocate-General, Sindh v. Iqbal Ahmed Khan) wherein their Lordships have observed at page 771 that a person not being an Inspector and not authorised by law should not have instituted proceedings for prosecution and as such prosecutions initiated by unauthorised person would vitiate the entire proceedings. And (ii) Shaukat Hayat v. The State 1982 PCr.L1 48 wherein Division Bench of Lahore High Court observed that section 30 of the said Act is clear in its terms where under no prosecution can be instituted except by a properly appointed Drugs Inspector and since there has been a legal defect in the institution of the case hence it would not possible to maintain the conviction and sentence of the appellant.
10. ' In the instant case, the admitted position is that the complaint was lodged by Mr. Altaf Hussain Hakro, who was Divisional Drug Inspector but photo copy of notification dated 14th September, 1988 bearing No, S.O. (DC)I-42/86 states:-- "In exercise of the powers conferred by section 17 of the Drugs Act, 1976 and in supersession of all previous notifications issued in that behalf the Government of Sindh are pleased to appoint the Officers mentioned in column 2 of the schedule below to be Inspectors for the purpose of the said Act for the areas mentioned against each in column 3 thereof."
11. ' At serial No,2 Mr. Altaf Hussain Hakro (Divisional Drug Inspector Hyderabad) has been mentioned.
12. Photo copy of the Notification No, S.O.VIII/8-388/80-81, Part I, dated 27th May, 1989 issued by Sindh Government runs:-- "In exercise of the powers conferred by section 17 of Drugs Act, 1976, and in supersession of all previous notifications issued in that behalf the Government of Sindh are pleased to appoint the officers mentioned in column 2 of the Schedule below to be the Inspector for purpose of the said Act for the areas mentioned against each in column 3 of thereof. The Government of Sindh, further authorised the officers mentioned in column 2 below to exercise the power under clauses (t) to (j) of section 18 of the said Act."
13. ' At serial No,1 Mr. Altaf Hussain Hakro Divisional Drug Inspector Karachi having an area of Karachi Division under column 3 has been mentioned. The case The State v. Ahmed 1996 SCM R 767 has different and distinguishable facts of the case to the instant case as in the said case there was no notification issued under section 17 for the appointment of Drug Inspector in favour of Mr. Ghulam Rasool Halepota who was then also Divisional Inspector of Drug. In the instant case, Mr. Altaf Hussain Hakro, Divisional Inspector, has been notified as "Drug Inspector" under section 17 of Drugs Act, 1976, therefore, he could not be said to be incompetent person to initiate the proceedings and prosecute the appellant within the meaning of section 30 of the Drugs Act. The next case which has been relied upon, is 1982 PCr.LJ 48 (Shaukat Hayat v. The State). This case also lays down that no prosecution can be instituted except by a properly appointed Drug Inspector. In the cited case, there was no notification issued in respect of a person who instituted prosecution against the appellant under section 17 of the Drugs Act as the said case also mentioned that there was no notification as required by section 17 for appointment of Drug Inspector. In the circumstances, the above two cited cases have no application to the facts of the instant case. However, Mr. Azizul Hassan has further argued that because the respondent did not produce the said notification before the trial Court therefore the same cannot be considered whereas under Article 112 of Qanun- e-Shahadat the official Gazette notification issued could be looked into by the Court and judicial notice could be taken under the said provision of law. We are of the considered view that the complaint was lodged by a competent person by virtue of the said notification cited above.
14. Accordingly, we do not find any substance in the said contention of the learned counsel.
15. ' The next contention of the learned counsel for the appellant is that the respondent issued show- cause notice to Wazeer Traders which was replied by Wazeer Traders through Faqih Alam, proprietor, therefore, the complaint should have been lodged against Wazeer Traders and not against Faqih Alam. He has placed reliance upon Qassim Shah and others v. The State (PLD 1991 SC 893) wherein their Lordships at page 896 observed that "the appeal could, and should, succeed alone on the point that the company was not impleaded as an accused in the proceedings constituted against the appellant. The appellants being the employees and directors of the company, could be held to be guilty of offence, provided the company was found guilty of the offence as required by section 34 of Drugs Act." In the instant case, it has come in evidence that the appellant is a proprietor of Wazeer Traders. Mere is nothing on record to show that "Wazeer Traders" is a company, corporation, firm or institution, the appellant is the sole proprietor of "Wazeer Traders". The appellant has even not suggested in the cross-examination of P. Ws. That "Wazeer Traders" is a company, Corporation, firm or institution within the meaning of section 34 of the Drugs Act. Mere fact that the Quality Control Board has permitted the prosecution against Wazeer Traders would not effect the prosecution case at all which otherwise proved beyond doubt that the appellant was the person who was the sole owner of the said concern and no prejudice could be said to have been caused to the appellant in his defence before the trial Court. The appellant even did not take such plea either in his statement recorded under section 342, C P.C. Or in his statement recorded under section 3rl 0(2), Cr.P.C. We do not find any substance in the said contention of the learned counsel for the appellant and hold that it was not necessary that Wazeer Traders should have been prosecuted in the case and the appellant is sole proprietor of the concern.
16. ' The third contention of the learned counsel for the appellant is that test report Exh.11 was received after expiry of 60 days whereas section 22(2) of the Drugs Act provided that the said report is to be submitted within 60 days and tfiere fore entire proceedings vitiated consequently the conviction and sentence passed would be illegal. Subsection (2) of section 22 of the. Drugs Act reads:- "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."
17. ' Reference may be made to Khalid Mansur and another v. The State 1985 PCr.LJ 281 at page 283 learned Judge in Chambers observed that "the burden is on the prosecution to prove that necessary permission of the Quality Controls Board for extension of time was obtained. In the absence of any documentary evidence it cannot be presumed that necessary permission was obtained from the Quality Control Board. Subsection (2) of section 22 of the said Act provides that the analyst shall communicate the reasons to the Inspector in writing and shall endorse its copy to the Board and in the instant case this has not been done as such the provisions were not complied with. In the circumstances, we are of the view that the report shall not be conclusive as provided under section 22(4). In our opinion, violation of the provisions of law has been committed by the Drug Analyst in submitting his report beyond the prescribed period without obtaining extension from the Board." At page 284 of the cited case, it has been observed:- "We have seen the original report in this case. It is not in the prescribed form. Rules 15 and 16 have also not been complied with."
18. ' At page 285 of the cited case it has been observed that "Federal Drug Laboratory or Federal Government Analyst Rules, 1976 require that the provisions of the said Act and Rules should be observed with complete strictness and where the dispatch of the samples and submission of the report are not in accordance with the legal provisions the appellants 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 exercised by the authority strictly in the manner specified in the statute. In this case the provisions of rule 14 and section 22(9) expressly required the inspector to collect 4 bottles of the samples and to seal and suitably mark the same and despatch to the Central Laboratory or the Federal Laboratory for testing and analyzing the Gonapan suspension. We are of the opinion that the directions contained in section 19(2) and rules 15 and 16 and also from No,6 in regard to making and submission of the test reports are not directory but are mandatory and the Drug Court could not convict the appellants as it had not been established that the sample which was collected on 13-1-1980 from M/s. Pak Traders Hyderabad Limited and sent to the Federal Laboratory, Islamabad, and found by the Analyst to be substandard was in fact the very sample alleged to have been taken from the said shop. The importance of the strict observance in regard to the submission of the report in the prescribed manner is emphasised in the form".
19. Admittedly, the instant case sample was taken on 12-10-1987 and was sent to the Central Drug Laboratory, Karachi on 12-10-1987 which was received on the same date and report was sent by the said Laboratory on 27-3-1988 beyond 60 days as required under subsection (2) of section 22 of the Drugs Act and if the report could not be submitted within 60 days, the Government Analyst was to communicate the reasons to the Inspector in writing and was to obtain extension of time for submitting report but nothing has been shown that Government Analyst wrote to the Inspector stating the reason for not submitting the report within the time and sought extension of time for delayed submission of report.
20. ' In the instant case, the report was not sent within 60 days and no explanation for delay has been submitted by the Government Analyst and no further permission for further time was accorded by the Inspector or the Authority concerned, consequently, there has been violation/non-observance of the mandatory provisions of law hence, the report Exh.11 on the basis of which conviction and sentence have been passed declaring the drug to be substandard could not be maintained/sustained keeping in view the observation reported in Khalid Mansur's case 1985 PCr.LJ
281. Accordingly, we are of the opinion that there has been non-compliance of the mandatory provisions of law, therefore, the conviction and sentence passed against the appellant are set aside and the appeal is allowed. The appellant is on bail, his bail bonds are discharged.