' Shahid Habib owner of Malik Medical Store has called in question through this Criminal Miscellaneous petition order of the Drug Court, dated 15-6-1994, whereby his application under section 265-K, Cr.P.C. For quashing F.I.R. No,422 registered with Police Station Ravi Road, Lahore, dated 16-8-1990 under sections 23 and 27 of the Drug Act, 1976 was rejected.
2. Briefly the allegations as contained in the aforesaid F.I.R. Are that on 21-7-1990 Drug Inspector Ravi Road, Lahore took into possession Proviron Tablets Batch No,93093 from the medical shop of the petitioner which were sent to the Government Analyst who declared the same to be spurious vide his report, dated 30-7-1990. Notice was issued to Shahid Habib petitioner to produce warrantee within time given, which he failed to do so, hence, through respondent No,2 F.I.R.
Mentioned above was registered.
3. During the course of investigation Shahid Habib took stance before the Investigating Officer that he purchased the medicine in question from Munir Aslam of Al-Minar Medical Store and produced a handwritten receipt. It was sent to the Handwriting Expert who compared the signatures on the same with the admitted signatures of Munir Aslam and concluded that the writing alongwith signature on the receipt produced by petitioner were in the handwriting of Munir Aslam. The Chairman, Quality Control Board on 22-4-1992 granted the permission/sanction for the prosecution. Complaint alongwith report under section 173, Cr.P.C. Was submitted in trial Court, where as mentioned above, application under section 265-K, Cr.P.C. Was submitted which was declined and the said order was impugned through this application.
4. Learned counsel for the petitioner inter alia contended that:--
(1) under section 32(3)(A)(I)(II) of the Drug Act petitioner could not be prosecuted;
(2) that under section 19(6) read wish section (11)(V)(B) of the said Act no sanction as required under the law was taken by the Provincial Quality Control Board; and lastly ' Rule 4 of the Punjab Drug Act, 1988 having not been complied with, grave prejudice has been caused to the petitioner as a result of which further proceedings before the trial Judge would be exercised in futility.
5. In support of his contentions reliance was placed on Shuja Ullah v. The State 1994 PCr.LJ 1065 and Aga Nadim and another v. S.H.O., Lohari Gate, Lahore 1998 PCr.LJ 181.
6. Learned A.A.-G. Maintained that failure of the petitioner to produce the bill of warrantee entailed lodging of F.I.R. For which sanction from the Provincial Quality Control Board was received and thereafter the case was filed in a Court of law. Subsequent sanction by Provincial Quality Control Board rectified any initial lapse on the part of the prosecution.
7. Section 23 (ibid) provides that no person shall himself or by any other person in this behalf
(a) export, import or manufacture for sale or sell
(i) any spurious drug (ii)
(iii)
(x) any drug in contravention of any of the provisions of this Act or any Rule (b)
(c) sell any drug except under and in accordance with the conditions of a licence issued under this Act.
(H)(I) sell any drug without having a warrantee in the prescribed form bearing the name and batch of the drug issued.
8. Section 27 which is penal in nature provides punishment for the contraventions detailed in section 23 with punishment of imprisonment which shall not be less than five years or more than ten years and with fine which may extend to five lac rupees.
9. Section 32 of the Act deals with different pleas which may be taken in defence. Subsection (3) of section 32 provides that persons not being manufacture of a drug or his agent for the distribution thereof. Shall not be liable for a contravention of section 32 if he proves;
(a) that he did 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 and when he acquired it;
(b) that he acquired the drug from a duly licensed manufacturer or his authorised agent or an importer or an indentor resident in Pakistan under a written warrantee in the prescribed form stating in particular the batch number of a drug and signed by such person that the drug does not in any manner contravene the provisions of section 23 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 manufacturer holding a valid licence to manufacture drugs and permission to manufacture that drug; ' Provided that a defence under clause (b) shall be open to a person only--
(i) if he has within seven days of the service on him of the summons, sent to the Inspector a copy of the warrantee with a written notice stating that he intends to rely upon it and giving the name and address of the warrantor; and
(ii) if he proves that he has, within the same period, sent written notice of such intention to the said warrantor.
10. In the instant case proviso (1) of clause (A) of subsection (3) of section 32 of the Act makes it mandatory upon person selling a drug to produce within seven days of the service upon him of the summons before the Inspector copy of the warrantee upon which he relies. In the present case it is an admitted fact that there was no warrantee containing the batch number of the drug for which the petitioner was hauled up being spurious in nature. To the contrary the receipt in writing was produced stating to be in the handwriting of Munir Aslam of Alminar Medical Store and having found by the Handwriting Expert to be in the hand of Munir Aslam. In any case it was for the petitioner to insist at the time of receipt of drugs from Alminar Medical Store to have the warrantee containing the batch number of the drug. Having failed to do so, it cannot be said that he stood totally absolved from his liability.
11. Section 19 of the Act prescribes procedure for Drug Inspector when he seizes a drug under section 18. Subsection (6) which is relevant provides that if the Drug Inspector after noting the contraventions shall refer the case to the Provincial Quality Control Board and seek orders as to the action to be taken in respect of such contravention.
12. Section 11 of the Act deals with the powers of the Provincial Quality Control Board set up by the Government and relevant clause (b) of subsection (5) of section 11 authorizes the Board to scrutinize reports of Provincial Inspectors in respect of the contraventions of the Act and reports of the Government Analysts in respect of the drugs sent to them by the Provincial Inspector for tests and analysis and issue instructions to the Inspectors as to the action to be taken on such reports.
13. Undoubtedly, sanction for the prosecution as has been noted above was granted by the Provincial Quality Control Board to launch prosecution against the petitioner. However, Rule 4 of the Punjab Drug Rules, 1988 provides a mechanism for the functioning of the Board in matters dealing with the reports of the Inspectors and the Government Analysts. Sub-Rules (3) to (5) of Rule 4 is relevant and is reproduced for facility of reference:-- "(3) The Board shall examine the cases referred to it by any Inspector under the Act before directing him to prosecute such accused or recommending to the Licensing Authority for cancellation or suspension of the licence. Provided that no such action shall be taken without a show-cause notice to the accused.
(4) Before referring any case to the Drug Court the Board shall ascertain the names of the Directors, partners and employees of the company, corporation, firm or institution who are prima facie responsible for the commission of the offence under the Act or the rules and allow an Inspector to institute prosecution only against such persons;
(5) The Board may in view of minor contravention in its discretion advise the accused to bring improvement or if considered necessary issue a warning to the accused and take any other action including recall of batches."
14. The cumulative effect of reading the aforesaid provisions of law leads to an irresistible conclusion that hearing of the accused before according sanction for his prosecution is mandatory for the reason that words is "shall" and indicates the intention of the law giver which is manifest by its language enjoining the authority that any action to be taken against the person concerning his rights of prior hearing by the Provincial Quality Control Board requiring his explanation is a sine qua non. Reason being that if the lapse is of minor nature and the same is rectifiable, warning can be issued or in the alternative any other action including recalling of batches can be resorted to.
15. The instant case was a fit case where a warning could be issued to the accused for the reason that although he had obtained a receipt from Munir Aslam of Alminar Medical Store yet failed to obtain a warrantee as required by law.
16. I allowed time to the learned A.A.-G. To enquire from Provincial Quality Control Board whether prior hearing as envisaged by sub-Rule (4) of the Rules was given to the petitioner or not. Neither learned A.A.-G. Could give a definite reply nor the representative of the Department present in Court could satisfy me that strict adherence to law was followed.
17. Although the point that no hearing was given to the petitioner was not taken before the trial Judge yet the point canvassed being legal in nature going to the root of the case, being violative of the principles of natural justice, equity and good conscience. I do not want to remit the case to the trial Judge for fresh decision as it would not improve the case of the other side in any manner, therefore, I hold that requirement of law not having been followed, the prosecution launched against the petitioner being defective, further prosecution would be an exercise in futility and the result is going to be the same at the end of the day, what it is now, I, therefore, in exercise of my powers under section 439 read with section 561-A, Cr.P.C. Quash the proceedings in case F.I.R.
No,422 registered with Police Station Ravi Road, Lahore under section 23/27 of the Drugs Act, 1976 against the petitioner now pending before the Drug Court, Lahore.
' Petition accepted. .