' According to the version of Sh. Anwar-ul-Haq petitioner the facts giving rise to this Writ Petition No,23240 of 1999 for the quashment of F.I.R No,692, dated 6-10-1998 registered at Police Station Chunian, District Kasur under section 27 of tile Drugs Act, 1976 (hereafter called as the Act for brevity sake) at the instance of Bagh Ali complainant/respondent No,3 are as under:--
2. Muhammad Qazafi son of Bagh Ali complainant fell a victim to typhoid fever who was examined by the Medical Officer Tehsil Headquarter Hospital, Chunian, District Kasur on 2-9-1998. Dr. Arif Mahmood Medical Officer examined Muhammad Qazafi and issued the prescription. Maxipen injection was to be administered to the said patient which was purchased from Messrs Allah Din Medical Store, Chunian, District Kasur owned by Sh. Anwaar-ul-Haq and run by Sh. Muhammad Anwar, writ petitioner for an amount of Rs,26. The aforesaid injection was administered to the aforesaid patient who allegedly got the reaction. Muhammad Qazafi was got admitted in Emergency Ward of Tehsil Headquarter Hospital, Chunian, District Kasur who was saved. According to Bagh Ali complainant the Maxipen injection was sold after its expiry date as it was manufactured in the month of December, 1995 and its expiry date was December, 1997. He submitted the application before the Assistant Commissioner Chunian, District Kasur for the registration of a criminal case who produced the prescription issued by the Medical Officer, voucher receipt and the empty phial of the injection. The complaint was sent to the S.H.O., Police Station Chunian, District Kasur and the F.I.R. No,692 was registered on 6-10-1998 under section 27 of the Drugs Act, 1976.
3. According to the writ petitioners on the date of submission of the complaint on 6-10-1998 and registration of the F.I.R. Under section 27 of the Drug Act, 1976, the Assistant Commissioner, Chunian, District Kasur alongwith the Resident Magistrate, Chunian and the police officials raided his Medical Store and conducted thorough checking of drugs and medicines lying in the shop, but no expired drug, whatsoever, was recovered therefrom when he was intimated about the lodging of the complaint. According to him the registration of the case was held as false and concocted by two superior Police Officers and it was also expressed that the offence is non-cognizable. However, on the report of the Deputy Superintendent of Police (Legal) Lahore, the Deputy Inspector-General of Police, Lahore Range, Lahore is said to have directed the local police to reinvestigate the case and submit the challan.
4. This petition for the quashment of the aforesaid F.I.R. Has been filed on the ground that the alleged offence prima facie falls under section 23(1)(vi) of the Act, the punishment for which is provided under subsection (4) of section 27 of the Act and that in view of the provisions of section 30(2) of the Act the offence is non-cognizable which under section 30(3) of the Act is triable by a learned Drug Court and no permission to take cognizance and investigate the same has been obtained from the learned Drug Court. They averred that criminal proceedings under the Act including the registration of F.I.R. And investigation were conducted without permission of the Provincial Quality Control Board (hereinafter called as Board for brevity sake) set up under section 11 of the Act and that the F.I.R. Required and desired to be quashed is absolutely without jurisdiction, concocted and based on mala fides.
5. The comments have been submitted wherein the facts mentioned by the writ petitioner have been admitted and it has been prayed that the writ petition may be disposed of on merits.
6. This writ petition has been admitted for regular hearing. I have heard the learned counsel for the parties and Ms. Roshan Ara, Assistant Advocate-General Punjab, Lahore. Learned counsel for the petitioner relied on Jamil Ahmad Khan and others v. Assistant Commissioner and others 1990 PCr.LJ 1475 and argued that the sale of drug after expiry of date was non-cognizable keeping in view sections 23(1)(vi)/27(2)(b) and 30(2) of the Act which exclusively being triable by the learned Drug Court, no Magistrate was competent to initiate the criminal proceedings and to hold the trial about which no F.I.R. Could be got registered at the Local Police Station and that the processing of the matter by the local Police was without jurisdiction and devoid of any authority legally vested in them. He also referred to Shuja Ullah v. The State and others 1994 PCr.LJ 1065 Pesh. Wherein it has been held that irrespective of the case being cognizable or non-cognizable the Drug Inspector has to make a report to the Board in case of contravention of the Act and on the specific order of the Board as to the action to be taken the Inspector can proceed to take the action including registration of a case. He added that the registration of the case at the direction of the Assistant Commissioner, Chunian, the raid conducted at his Medical Store by the Assistant Commissioner alongwith the Executive Magistrate and the investigation by the police as well as submissions of the challan is devoid of legal authority, without jurisdiction and illegal. On the contrary learned Assistant Advocate-General and the learned counsel for Bagh Ali respondent No,3 relied on State v.
M.N. Huda and eight others 1979 PCr.LJ Note 6 at p.4, passed by the learned Drug Court, Karachi and argued that the case could be registered without the intervention of the Drug Inspector and the Board and that the writ petition is liable to be dismissed.
7. At this stage I would express that it is a case of public interest litigation and requires the deeper dissection and analysis by this Court for the maintenance of balance in the social set-up. In order to test the accuracy of these submissions it is necessary to refer to the relevant provisions of the Drugs Act, 1976. The relevant provisions of law with respect to the initiation of the criminal proceedings are contained in sections 11, 17, to 19, 22, 23, 27 and 30 which are reproduced as under with amendments for the sake of convenience:-- Section 11. Provincial Quality Control Board.--- (1) Each Provincial Government shall set up Provincial Quality Control Board consisting of such members including a Chairman, as that Government may appoint from time to time.
(2) The Chairman and other members of the Provincial Quality Control Board shall hold office during the pleasure of the Provincial Government, on such terms and conditions as that Government may determine.
(3) The Provincial Government shall appoint a person to be the Secretary of the Provincial Quality Control Board and provide the Board with such staff as the Provincial Government may consider necessary.
(4) The Provincial Quality Control Board shall make regulations to regulate the conduct of its business.
(5) The following shall be the powers and functions of the Provincial Quality Control Board, namely:--
(a) to inspect any premises where any drug is being or is to be manufactured or sold and to recommend to the appropriate authority the cancellation or suspension of the licence to manufacture or sell drugs granted to any person who is found to be contravening, or to have contravened, any of the provisions of this Act, or the rules:
(b) to scrutinize the reports of Provincial Inspectors in respect of contraventions of this Act and reports of the Government Analysts in respect of drugs sent to them by the Provincial Inspectors for test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports: ' Provided that the Provincial Quality Control Board may specify the class of cases in which a Provincial Inspector may make a complaint to the Drug Court, or take any other action, without the specific instructions of the Board;
(c) to exercise all the powers of an Inspector under this Act and the rules; and
(d) to advise the Provincial Government on ways and means to ensure quality control of drugs manufactured in the province.
(6) Provincial Quality Control Board may entrust any of its powers or functions under subsection (5) to anyone or more of its members.
' Section 17. Inspectors.--- The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors, or, as the case may be, Provincial Inspectors for the purposes of this Act within such local limits as it may assign to them respectively: ' Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed: ' Provided further that a person serving under the Federal Government or another Provincial Government shall not be so appointed without the previous consent of such Government.
' Section 18. Powers of Inspectors.--- (1) Subject to the provisions of section 19 and of any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, and in any other area within the permission of the licensing authority:
(a) inspect any premises wherein any drug is manufactured, the plant and process of manufacture, the means employed for standardizing and testing the drugs and all relevant records and registers:
(b) inspect any premises wherein any drug is sold or is stocked or exhibited for sale or is distributed, the storage arrangements and all relevant records and registers;
(c) take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed;
(d) enter and search, with such assistant, if any as he considers necessary, any building, vessel or place, in which he has reason to believe that an offence under this Act or any rules has been or is being committed or may continue to or is being committed or may continue to be committed;
(e) call any person to be present as witness in the course of search or seizure or in connection with any other matter where the presence of witnesses is necessary;
(f) seize such drug and all materials used in the manufacture thereof and any other articles, including registers, cash memos., invoices and bills, which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any rules;
(g) require any person to appear before him at any reasonable time and place to give statement, assistance or information relating to or in connection with the investigation of an offence under this Act or the rules: Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to requisitions for attendance under this clause;
(h) lock and seal any factory, laboratory, shop, building, store-house or godown, or a part thereof, where any drug is or is being manufactured, stored, sold or exhibited for sale in contravention of any of the provisions of this Act or the rules:
(i) forbid for a reasonable period, not exceeding four weeks or such further period, which shall not be more than three months, as the Inspector may, with the approval of the Provincial Quality Control Board, the Central Licensing Board, the Registration Board, or the licensing authority, as the case may be, specify, any person incharge of any premises from removing or dispensing of any drug, article or other thing likely to be used in evidence of the commission of an offence under this Act or the rules; and
(j) exercise such other persons as may be necessary for carrying out the purposes of this Act or any rules: ' Provided that the powers under clauses (f) to (j) shall be exercisable only by an Inspector specifically authorised in this behalf, by an order in writing, by the Government appointing him, subject to such conditions as may be specified in such order: ' Provided further that the power under clause (h) may be exercised by an Inspector not authorised as aforesaid where the contravention is of a provision which requires a licence to be obtained for the manufacture, storage or sale of a drug.
(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in so far as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Act.
Section 19. Procedure for Inspectors.--- Where an Inspector seizes any drug or any other article under section 18, he shall tender a receipt, therefor, in the prescribed form.
(2) Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal, if any, and mark to all or any of the portions so sealed and marked: ' Provided that, where the sample is taken from premises whereon the drug is being manufactured, it shall be necessary to divide the sample into three portions only: ' Provided, further that, where the drug is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same, and, where necessary, sealing them: ' Provided further that if the contents of one container are insufficient for the laboratory test and analysis, the Inspector may increase the number of the containers in order to make the sample sufficient for his purpose.
(3) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same within forty eight hours as follows:---
(i) one portion of sample he shall send to the Government Analyst concerned for test and analysis;
(ii) the second he shall send to the Chairman, Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be; and
(iii) the third, where taken, he shall send to the warrantor, if any, named under the proviso to subsection (3) of section 32.
(4) Where an Inspector seizes any drug containing any filthy or putrid substance, worm, rodent, insect or any foreign matter which is visible to the naked eye, and the sample is such that it cannot or need not be divided, he shall effectively seal and suitably mark the same and permit the person from whom he seizes the drug to add his own seals, if any, and mark to it and shall produce the same before the Drug Court or the Central Licensing Board or the Registration Board, as the case may be, before which proceedings are instituted or action is initiated in respect of the drug.
(5) Where an Inspector takes any action under section 18, he shall, as soon as possible inform the Board concerned or its Chairman and take order as to the custody of the stocks of the drugs seized by him: Provided that where a Federal Inspector is not competent to take action under section 30, he shall as soon as may be, report the matter and hand over the stock, if any, to the Provincial Inspector for further action under this Act.
(6) The Provincial Inspector on finding any contravention of this Act shall, unless the Board otherwise directs, always refer the case to the Provincial Quality Control Board and seek orders as to the action to be taken in respect of such contravention.
(7) The Federal Inspector on finding any contravention of this Act for which he is authorised shall, unless otherwise directed, always refer the case to the Central Licensing Board or the Registration Board of any other authority as may be specified for the purpose and seek any further orders as to the action to be taken in respect of such contravention. Section 22. Reports of Government analysts.--- (1) The Government Analyst to whom a sample of any drug has been submitted for test and analysis under subsection (3) of section 19 shall deliver to the Inspector submitting it a signed report in quadruplicate in the prescribed form and forward one copy thereto to the authority as may be prescribed.
(2) 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.
(3) On receipt of the report, the Inspector shall--
(a) deliver one copy thereof to the person from whom the sample was taken;
(b) forward one copy to the warrantor, if any, named under the proviso to subsection (3) of section 32;
(c) forward one copy to the Board concerned for its directions as to the action to be taken on the report; and
(d) retain the fourth copy for use in any prosecution or for any other purpose.
(4) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within seven days of the receipt of a copy of the report notified in writing to the Inspector of the Drug Court or, as the case may be, the Central Licensing Board or the Registration Board or the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report.
(5) Where a person has, under subsection (4), notified his intention of adducing evidence in contravention of a Government Analyst's Report, the Drug Court or the Board concerned as the case may be, the Central Licensing Board, the Registration Board, the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug lying with the Board concerned under subsection (3) of section 19 to be sent for test or analysis to the Federal Drug Laboratory or any other laboratory specified for the purpose by the Federal Government which shall make the test or analysis and report within thirty days of the receipt of the sample in writing signed by, or under the authority of the person for the time being incharge of the Federal Drug Laboratory, or as the case may be, such other laboratory, the result thereof and such report shall be conclusive evidence of the facts stated therein.
(6) The cost of a test or analysis made by the Federal Drug Laboratory or other laboratory under subsection (5) shall be paid by the complainant or accused as the Drug Court of the Board concerned shall direct.
' Section 23 Import, manufacture and sale of drugs.--- (1) No person shall himself or by any other person on his behalf--
(a) export, import or manufacture for sale or sell:
(i) any spurious drug;
(ii) any imitation product;
(iii) any misbranded drug;
(iv) any adulterated drug;
(v) any substandard drug;
(vi) any drug after its expiry date;
(vii) any drug which is not registered or is not in accordance with the conditions of registration;
(viii) any drug which, by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be, prescribed;
(ix) any drug if it is dangerous to health when used in the dosage or with the frequency, or, for the duration specified, recommended or suggested in the labelling thereof; or
(x) any drug in contravention of any of the provision of this Act or any rule;
(b) manufacture for sale any drug under, and in accordance with the conditions of a licence issued under this Act;
(c) sell any drug except under and in accordance with the conditions of a licence issued under this Act;
(d) import or export any drug the import or export of which is prohibited by or under this Act;
(e) import or export any drug for the import or export of which a licence is required, except under, and in accordance with the conditions of such, licence;
(f) supply an incorrect, incomplete or misleading information, when required to furnish any information under this Act, or the rules;
(g) peddle, hawk or offer for sale any drug in a park or public street or on a highway, footpath or public transport or conveyance;
(h) import, manufacture for sale, or sell any substance, or mixture of substances, which is not a drug but is presented in a form or a manner which is intended or likely to cause the public to believe it to be a drug;
(i) sell any drug without having a warranty in the prescribed form bearing the name and batch number of the drug issued--
(i) in the case of drug manufactured in Pakistan, by the manufacturer holding a valid licence to manufacture drug and permission to manufacture that drug or by his authorised agent;
(ii) in the case of an imported drug, by the manufacturer or importer of that drug or, if the drug is imported through an indenter by such indenter;
(j) apply an incorrect batch number to a drug; and
(k) sell or import a drug above the maximum price fixed under this Act on which the drug shall be sold or imported.
(2) Nothing in subsection (1) shall apply to the manufacture or subject to prescribed conditions, of small quantities or any drug for the purpose of clinical trial examination, test, analysis or personal use. Section 27 Penalties.--- (1) Whoever himself or by any other person on his behalf;
(a) exports, imports, manufactures for sale or sells any spurious drug or any drug which is not registered;
(b) manufactures for sale any drug without a licence; or
(c) imports without licence any drug for the import of which a licence is required; ' shall be punishable with imprisonment for a term which shall not be less than five years or more than ten years and with fine which may extend to five Lakh rupees;
(2) Whoever himself or by any other person on his behalf--
(a) imports, manufactures for sale or sells any imitation product; or
(b) gives to the purchaser a false warranty in respect of any drug sold by him that the drug does not in any way contravene the provisions of section 23 and is not able to prove that, when he gave the warranty, he had good and sufficient reason to believe the same to be true; or
(c) applies or permit to be applied to any drug sold, or stocked or exhibited for sale, by him, whether on the container or a lable or in any other manner, a warranty given in respect of any other drug, or
(d) imports, manufactures for sales or sells any drug under a name other than the registered name; or
(e) exports, imports, manufactures for sale or sells any drug with which any substance, which should not actually be its component, has been mixed or packed so as to reduce its quality or strength or for which any such substance has been substituted wholly or in part; shall be punishable with imprisonment for a term which may extend to seven years, and with fine which may extend to one Lakh rupees.
(3) Whoever obstructs an Inspector in the exercise of any power conferred upon him by or under this Act, or disobeys the lawful authority of any Inspector, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
(4) Subject to the provisions of subsection (1), subsection (2) and subsection (3), whoever himself or by any other person on his behalf contravenes any of the provisions of this Act or any rule shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both. Section 30 Cognizance of offences.--- (1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except---
(a) by a Federal Inspector, where the prosecution is in respect of a contravention of clause (h) of subsection (1) of section 23 or section 24 or any of the provisions of this Act or the rules relating to the import or export of drugs or the manufacture for sale, or sale of a drug which is not for the time being registered or for the manufacture for sale of which a licence is not for the time being in force; or
(b) by a Provincial Inspector: ' Provided that, where the public interest so requires, the Federal Inspector may, with the prior permission of the Federal Government, institute a prosecution for a contravention of any other provision of this Act.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898)---
(a) an offence punishable under this Chapter other than an offence mentioned in subsection (1) of section 27, shall be non-cognizable, and
(b) no Court other than a Drug Court shall try an offence punishable under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence punishable under this Chapter or to require the transfer to a Drug Court of any case which may be pending in any Court immediately before the establishment of the Drug Court.
8. It would be proper to reproduce as under the definition of "spurious drug" contained in subsection (zb) of section (1) of the Act which means a drug:-
(i) which purports to be a drug but does not contain the active ingredient of that drug; or
(ii) which purports to be the product of a manufacture, place or country of whom or of which it is not truly a product; or
(iii) which is imported or exported or sold or offered or exposed for sale under a particular name which actually it is 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."
9. Rules 3 and 4 of the Punjab Drugs Rules, 1988 are also reproduced as under for the proper appreciation of the dispute in hand:-- Punjab Drugs Rules 1988
(3) Provincial Quality Control Board.--- (1) The Board shall consist of the following members, namely:--
(a) Secretary, Health Department, ex officio, who shall also be its Chairman;
(b) Additional Secretary (T), who will also act as Chairman in the absence of Secretary Health;
(c) An Officer of the Provincial Drug Administration who shall, as far as possible be a Pharmacy Graduate;
(d) One member from the Pharmacy profession who shall be at least graduate in Pharmacy to be nominated by the Provincial Government having no financial interest in pharmaceutical trade and industry;
(e) One Pharmacologist preferably Professor of Pharmacology to be nominated by the Provincial Government having no financial interest in the Pharmaceutical Trade Industry; (0 One Professor of Medicine to be nominated by the Provincial Government having no financial interest in Pharmaceutical trade and industry;
(g) Secretary, Provincial Quality Control Board, who preferably shall be a Pharmacy graduate.
(2) The Board may coopt any other qualified expert having formal training and experience in the pharmaceutical field.
(3) The quorum to constitute a meeting of the Board shall be three including its Chairman.
(4) No act or proceeding of the Board shall be invalid merely on the ground of the existence of any vacancy in or any defect in the constitution of the Board.
(4) Function of the Board.--- (1) The Inspectors and the Government Analyst shall submit monthly returns in Form 1 and Form 2 respectively, to the Board and a summary on the overall situation of quality control in the area under their respective jurisdiction and the Board shall maintain such information so as to monitor the quality of all the drugs sold and to keep watch on the performance of all manufacturers and the drugs sale licence holders.
(2) The Board shall, as far as possible, meet at least once a month and review the situation of the quality control of drugs on the whole including consideration of any specific point arising during the period on the working of various firms, drug testing laboratories and Inspectors.
(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 name of the Directors, partners and employees of the company, corporation, firms 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."
10. I would express that a perusal of section 30(2)(a) of the Act provides that the offences mentioned under section 27(1) are cognizable while all the other offences falling under the Act are non-cognizable. Clause (a) to subsection (1) of section 27 of the Act deals with the prohibitions (offences) contained in section 23(1)(a)(i)(vii); next clause (b) deals with the prohibitions (offences) narrated in section 23(1)(b)(c) and last clause (c) deals with prohibition (offence) mentioned in section 23(1)(e) of the Act. Both the aforesaid sections reproduced above, if gone through together, would make out that the sale of an expired medicine does not fall within the category of the offences which are cognizable. The relevant prohibition about the sale of expired drug is incorporated in section 23(1)(vi) of the Act which is non-cognizable offence. It is manifest from a bare reading of the F.I.R. Required to be quashed that it was a case of sale of drug after its expiry date. The offence as made out in the F.I.R. Being non-cognizable, the only course open to the local police under section 155 of the Code of Criminal Procedure was to have entered in the daily diary of the police station the substance of the information and referred the same to the learned IIlaqa Magistrate. Under section 155(2) of the Code of Criminal Procedure no Police Officer has been authorised to investigate a non-cognizable case without the order of the learned Magistrate 1st Class or Second Class having power to try a case regarding the offence. However, under section 30(2)(b) of the Act, the case was exclusively triable by the learned Drug Court which has made out that no Magistrate of the First or Second Class under the Code of Criminal Procedure was competent to try the case and, thus, no order by such Magistrate could be passed authorising the police authorities to investigate the case. It is the proper stage to reply on the ruling printed as Jamil Ahmad Khan and another v. Assistant Commissioner and another 1990 PCr.LJ 1475 (Lahore) which is applicable in all four corners to the case in hand as the allegation of sale of drug after expiry of date under the Drugs Act, 1976 was held to be non-cognizable and the registration of the F.I.R. And investigation as well as further proceedings in pursuance thereof were declared to have been taken as without lawful authority and of no legal effect which were, accordingly, quashed.
11. At this stage, I would deal with the proposition as to whether a Drug Inspector can lodge the complaint before the Drug Court in a non-cognizable offence and secondly whether in a cognizable offence the Drug Inspector or any other person from the public or Executive Authorities can report the matter to the police for the registration of First Information Report without the permission from the Provincial Quality Control Board. It would be proper to refer to sections 17, 18 and 30 of the Act for the proper disposal of this controversy. Section 17 provides for appointment of Drug Inspectors by the Federal Government as well as the Provincial Government. Section 18 deals with the powers of the Drug Inspectors. Clause (d) of subsection (1) of section 18 empowers a Drug Inspector to enter, search with such assistance as he considers necessary any building, vessel or place in which he has reason to believe that an offence under the said Act has been or is being committed. Clause (t) of the said subsection empowers a Drug Inspector to seize any drug or other article in respect of which he has reason to believe that the same may furnish information of the commission of offence under the Act. Section 19 lays down the procedure to be followed by a Drug Inspector when seizing a drug or other articles under the aforesaid section 18. By taking the sample of a drug he has to first intimate the persons from whom he is taking the drug, the purpose for which the sample is being taken. The Drug Inspector next is required to divide the sample into four portions on each of which he has not only to affix his seal or other suitable mark who also permits the person from whom the sample is taken to put his seal or mark thereon. He thereafter is required to give one portion of the sample to the person from whom he has taken the same, send one portion to the Government Analyst for test and analysis, send an other portion to the Chairman of the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and send the last portion to the Warrantor, if any, named under the proviso to section 32(3) of the Act. Section 19 further requires a Drug Inspector who has found any contravention of the said Act for which he is authorised to file a complaint to refer the case to the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and seek orders from such Board as to the action to be taken in respect of such contravention. So far as section 30(1) is concerned it provides that cognizance of an offence under the Act can only be taken upon the complaint of an appropriate Inspector by a Drug Court. The proposition with respect to the filing of the complaint for the commission of a non-cognizable offence is quite simple as the Drug Inspector has to proceed in the matter after referring the case to the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and it is after scrutiny by the Board of the material and report of the Government Analyst that the Board has to issue instructions to the Drug Inspectors as to the appropriate action to be taken on such report. Either the prosecution can be dropped or the prosecution case can be ordered to be launched. Thus, on the orders from such Board as the action to be taken in respect of such contravention that a complaint can be filed before the Drug Court which shall take cognizance of the same.
12. Now it is being considered as to whether in cognizable cases provided under section 30(2)(a) read with section 27(1) of the Drugs Act, 1976, the F.I.R. Can directly be lodged by the Drug Inspector, District Magistrate or any other Magistrate and any Police Officer of any rank. It is proper to express that the Secretary, Provincial Quality Control Board has issued policy Letter No,SECY:(PQCB)1-13/98 Government of the Punjab, Health Department, dated 25-7-1998 on the subject of Registration of F.I.R. Which is being reproduced as under in toto:-- ' Most urgent NO. SECY:(PQCB)1-13/98 GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT Dated Lahore, the 25-7-1998.
' To All the Provincial Inspectors of Drugs in the Punjab. Subject: Registration of F.I.R.
' I am directed to inform you that Provincial Quality Control Board, Punjab in its meeting held on 25- 7-1998 under the Chairmanship of Secretary Health has authorised all the Provincial Inspectors appointed under section 17 of the Drugs Act, 1976 to register F.I.R. In the concerned police station for the following offences without prior permission from the Board:--
(1) Manufacture of drugs without Drug Manufacturing Licence.
(2) Sale of Spurious Drugs not manufactured by the licensed manufacturer.
2. A copy of F.I.R. Must invariably be sent to Provincial Quality Control Board soon after registration of case and complaint should be filed with Drug Court, Punjab after getting sanction for prosecution from the Provincial Quality Control Board.
(Sd.) Secretary, Provincial Quality Control Board, Punjab.
' No, and date even ' A copy is forwarded for information to:--
(1) All the Members of Provincial Quality Control Board, Punjab.
(2) Director-General, Health Services, Punjab, Lahore.
(3) Private Secretary to Chairman, Task Force, Punjab.
(4) Private Secretary to Ministry for Health, Punjab. .,(5) Private Secretary to Secretary Health, Punjab.
(Sd.) Secretary, Provincial Quality Control Board, Punjab.
13. The contention of the learned Assistant Advocate-General is that the aforesaid letter, dated 25- 7-1998 has made competent the Drug Inspector to get registered the F.I.R. Of the offences of manufacture of drug without Drug Manufacturing Licence and sale of spurious drugs not manufactured by the licensed manufacturers. On the contrary the learned counsel for the petitioner laid the emphasis that in every case the drug cannot be said to be spurious unless the same is examined by the Government Analyst and even with respect to the medicines mentioned in letter, dated 25-7-1998 it cannot be declared that the drugs are spurious unless the drugs are examined by the Government Analyst. I would hold that a minute perusal of the definition of "Spurious Drug" has made out that in every eventuality and at every cost the drug has to be sent for analysis and without the protocol of Government Analyst and his report the category and quality of the drug being genuine or spurious cannot be determined. The report of the Government Analyst has to be obtained within specified period if the drug is referred to him after seizure for examination within the specified period. The report has to be placed under section 22(3)(b) of the Act before the Board and scrutinized under section 11(5)(b) of the Act. Under Rule 4 of the Drugs Rules, 1998, the Drug Inspector shall place the matter before the Board which shall issue a show- cause notice to the accused. After hearing the accused either the matter can be dropped or the prosecution can be launched and initiated by the Drug Inspector before the Drug Court. The wisdom behind is that the offences under the Drugs Act, 1976 cannot be established without the initial report of the Government Analyst. According to section 30(1) of the Act, the prosecution cannot be instituted except (a) by a Federal Inspector or (b) by a Provincial Inspector. Even though under subsection (2) of section 30 of the Act, offences under subsection (1) of section 27 of the Act have been declared as cognizable, I hold the firm view that subsection (2) of section 30 is controlled by subsection (1) of section 30 of the Act as the prosecution has specifically been declared to be instituted by the Federal Drug Inspector or the Provincial Drug Inspector as the case may be. Without the report of the Government Analyst the offence of manufacture of drug without drug manufacturing licence and sale of such drugs cannot be established. Even otherwise in para. 2 of the aforesaid letter, dated 25-7-1998, it is provided that a copy of F.I.R. Has to be sent to the Provincial Quality Control Board soon after registration of the case and complaint should be filed with Drug Court, Punjab after getting sanction for prosecution from the Provincial Quality Control Board. It means that the authority of the Board remains in tact two-fold, first that permission to get registered the case has been granted to the Drug Inspector to act as complainant and not directly to the police who cannot raid any shop or seize any such drug and secondly that after getting permission/sanction of the Board for prosecution, the complaint has to be filed by the Drug Inspector before the Drug Court, Punjab. The pivotal role has to be played by the Provincial Quality Control Board. The commission of the alleged offence mentioned in letter, dated 25-7-1998 can also be determined through the report of the Government Analyst and there is no yardstick to make out that the Drug Inspector would be in a position to hold the drug as spurious. The report of the Provincial Inspector in respect of contravention of Drug Act and report of Government Analyst in respect of drug sent to him by the Provincial Inspector for test and analysis are to be scrutinized by the Board and the Board has to issue instructions to the Drug Inspector as to the action to be taken on such report. According to Concise Oxford Dictionary the meanings of words "Scrutinize"; are "look closely at, examine in detail". The meanings of word "Scrutiny"; are "Critical glaze, close investigation, examination into details". In this view it can well be expressed and held that the role of the Board is that of supervision on the work of the Drug Inspector and for launching the prosecution the Board has to play the vital legal role. The wisdom for the incorporation of this provision of this law is to eliminate, avoid unnecessary harassment to the drug dealers and watch and control the Drug Inspectors who. May not exercise unbridled powers. Even if the aforesaid letter, dated 25-7-1998 has been issued, the provisions of Rule 4 of the Drug Rules, 1988 and the provisions of section 11(5) of the Drug Act cannot be ignored according to which the Quality Control Board has to issue show-cause notice to the accused before taking any action and to scrutinize the material produced before it. Without adopting the aforesaid procedure the matter cannot be processed with and it can safely be held that the aforesaid letter, dated 25-7-1998 is violative of section 11(5) of the Drug Act and Rule 4 of the Drug Rules, 1988. The objectionable working of the Drug Inspectors is that they take the police alongwith themselves and after taking the sample of the aforesaid type of spurious drug without despatch to and without report of Government Analyst straightaway get the accused arrested and get the case registered. In many cases they do not even proceed under section 103 of the Code of Criminal Procedure as provided under section 18(2) of the Drug Act, 1976. This is absolutely illegal and a note of warning is issued to the Drug Inspectors with the advice to refrain from such a working violative of the aforesaid statutory provisions of law.
Consequently, Policy Letter No,SECY:(PQCB)1-13/98, dated 25-7-1998 is held to be violative of law, rules and, accordingly, declared to be ineffective and inoperative:
14. The upshot of the aforesaid discussion, analysis of the matter and findings is that the dictum enunciated in Shuja Ullah v. The State and others 1994 PCr.LJ 1065 (Peshawar) holds the water which is to be followed. It is to the effect that irrespective of the case being cognizable or non- cognizable, the Provincial Drug Inspector has to make a report to the Quality Control Board as and when there is any contravention, of this Act and only on reference of the case to the Board and seeking orders as to the action taken in respect of such contravention the Provincial Inspector can proceed to take the said action including the registration of a case. It is remarked that Without specific instructions of the Board the Provincial Inspector cannot get registered a case even if it pertains to cognizable offence. He can also not file a complaint with regard to cognizable/non- cognizable offence under the Act unless it pertains to the class of cases specified by the Board as such. In all matters i,e, cognizable or non-cognizable, the police cannot directly proceed under section 154/551 of the Code of Criminal Procedure and the First Information Report cannot be registered thereof on its own or/and at the direction of the Executive Authorities including the District Magistrate and his subordinates under section 156 of the Code of Criminal Procedure. The Executive Authorities including the police cannot check/raid independently any drug manufacturing place or any store etc. Etc. Further, they have no technical knowledge, qualification or experience to proceed in the matter especially when even the Drug Inspector has to refer the matter to the Government Analyst whose report has to be referred to the Board for appropriate orders. As such I hold that about the sale of expired drug, the First Information Report No,692 registered on 6-10-1998 under section 27 of the Drug Act, 1976 at Police Station Chunian, District Kasur has to fall like the house of cards. Not only that the aforesaid offence is non-cognizable, the Drug Inspector did not proceed in the matter who did not submit any report before the Board and no instructions was issued by the Board.
15. As to the decision of the case State v. M.N. Huda and 8 others printed as PLJ 1976 Kar. 216 suffice it to express that it is the judgment passed by the Drug Court, Karachi which is not binding on the High Court and that also on this Court i,e, Lahore High Court, Lahore. Even otherwise the raid in that case was conducted on 1-10-1976 by the Chairman of the Federal Quality Control Board in the company of the Assistant Drug Controller, S.H.O. Police Station Gulberg, Karachi and two witnesses who found the manufacturing of the Aspirine Tablets on that date while the manufacture of the same was banned vide Notification No,SRO-813(1)76, dated 13-8-1976 w,e,f, 30-9-1976. Keeping in view provisions contained in section 11(5)(a)(6) of the Act the Chairman Federal Quality Control Board had the authority to inspect the premises the drug (Aspirine Tablets) was being manufactured and keeping in view section 27(1) read with section 30(2)(a) get the case registered as the offence was cognizable.
16. At this stage, I deem it proper to refer to the maxim "A communi observantia non est recedendum". It means that "where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful". I have to express that it is well-recognized rule of construction that where a power is given to do a certain thing in a certain way that thing must be done in that way or not at all and that other methods of perfonnance are necessarily forbidden.
17. This is the stage to touch an important point which is to the effect as to whether against the action of the Drug Inspector is there any adequate remedy before the Provincial Quality Control Board so as to bar the entertainment of a Constitutional petition by the High Court. Sections 11(5)
(b), 19(b) and 22(3)(c) of the Drug Act, 1976 and Rule 4 of the Punjab Drug Rules, 1988 provide that before any action is taken by the Drug Inspector, he shall seek instruction from the Provincial Quality Control Board. It is obvious that instruction of the Quality Control Board is ought to proceed and not accede the action of the Board even though a show-cause notice has to be issued to the accused. The Drug Act, 1976 and Drug Rules, 1988 framed thereunder have not provided any remedy of appeal, revision or representation against the action of the Drug Inspector before any authority. Even otherwise it is well-settled construction of law that the representation is not an adequate remedy specifically when there is no right of hearing provided by the statute with regard to such representation. It is, therefore, expressed and held that no adequate remedy against the action of the Provincial Quality Control Board on the basis of the reference made by the Drug Inspector is available and consequently, the Constitutional petition is the only adequate remedy available thereof before this Constitutional Court.
18. In view of my aforesaid detailed reasoning and findings, I accept this writ petition and quash F.I.R. No,692 registered on 6-10-1998 under section 27 of the Drug Act, 1976 at Police Station Chunian, District Kasur. However, the competent Authority may proceed in the matter in accordance with the prevalent law. The law with respect to cognizable and non-cognizable offences under the Drug Act, 1976 has been analysed and clarified in this judgment. In the circumstances the parties are left to bear their own costs.
19. The Registrar of this Court shall send .a copy of this judgment to each of:--
(1) The Secretary, Health Department, Government of the Punjab, Lahore.
(2) The Secretary, Home Department, Government of the Punjab, Lahore for information.