This is a reference by the 1st Additional Sessions Judge, Karachi recommending that the order passed by A. C. M. Court No, 1, Karachi refusing to summon the Government Analyst as a defence witness may be set aside.
2. Respondent Abdul Ghani, Proprietor of Messrs Anglo-Pak. Pharmaceuticals, Karachi was prosecuted by Inspector of Drugs, Karachi for an offence under section 18 (a) (i) read with sections 27 and 28 of the Drugs Act, 1940 for having on 20-7-1973 sold a sample of tetracycline syrup manufactured by him under batch No, 105 to Messrs National Agencies, Wabab Arcade, Denso Hall, Karachi under a written warranty-the said sample being not of the standard quality as the said sample contained 80.75 m. g./5 m.
1. Of tetracycline hydrochloride instead of 125 mg/5 ml. The prosecution examined Drugs Inspector Mr. Muhammad Siddiq who produced the report of the Government Analyst as described above.
The accused/respondent challenged this report and he made an application for summoning the Government Analyst as a witness under section 94/257, Cr. P. C. This application was made on 13- 7-74 when section 257 was still in force and had not been omitted from the Cr. P. C. This application was rejected by the A. C. M. Court No, 1, Karachi on the ground that the application was made for the purpose of vexation and delay,
3. It has been argued by Mr. Farooq Hashim on behalf of the respondent that under section 25(3) of the Drugs Act, 1940, which was applicable at the time of the alleged commission of this offence, the report of Government Analyst shall be conclusive unless it had been challenged within 28 days of the receipt of the copy of that report by the accused. That it was true that this was not done within the prescribed time, but the report could be conclusive only when it was a complete report as defined in rule 46 of the Drugs Rules, 1945. Rule 46 shows that under this report the analyst send result of the test or analysis together with full protocols of the tests applied. In S. Dutra v. State it has been observed that the expression "full protocols of tests supplied" means an official statement or account of a proceeding as a description of an experiment or clinical report, viz. The various tests employed by the analyst to test the purity of the drug should in fact be embodied in the report itself, for instance the report in that case contained full description of the experiments as under:- "Test for Purity 1 c. c. Of the oil was boiled with 1.5N alchoholic potash under reflux condenser for 10 mts. 50 c. c. Alcohol (70 per cent) and 0.8 c. c. Hcl. Added. The mixture was stirred with a thermometer in it. Turbidity appeared at above 38C (Genuine olive oil should not show turbidity above 94C)"
It is true that in the present case it has not been shown by the public analyst how he arrived at a conclusion regarding low percentage of tetraycline by hydrochloride in the sample. Full description of the test applied should have been given as that is meant by the term 'full protocols of the test applied'.
4. Since the report was not a complete report as contemplated under the Drugs Act it could not be considered as being conclusive under section 25 (3) of the Drugs Act, 1940. Under these circumstances it was necessary and in the interest of justice to call the public analyst and this could be done under section 257 at that time and under section 540 now after the amendment.
5. The order of the A. C. M. Rejecting the application is accordingly set aside and it is directed that the public analyst may be summoned to produce full protocols of the tests applied in the present case, in the interest of justice.
The reference is accepted accordingly. AIR 1969 Cal. 427