' RAJA FAYYAZ AHMED, C.J.--This appeal under section 31(7) of the Drugs Act, 1976 has been directed against judgment, dated 10-6-2000 passed by the learned Drugs Court Balochistan, Quetta whereby the appellant has been found guilty under section 23(i)(c) and sentenced to four years'
R.I. And fine of Rs,50,000 in default of payment of fine to further suffer S.I. For a period of six months under section 27(i) of the Drugs Act, 1976.
2. The brief facts of the case are that after obtaining sanction of prosecution from the Provincial Quality Control Board, the respondent No,1 filed a complaint against the accused under sections 23(i)(a)(x)(i)(c) read with section 27(iv) of the Drugs Act in the Drugs Court Balochistan, Quetta by stating therein that he is authorized to an retails sales of Medicine/Whole sale Chemists shops and Manufacturing concerns in Quetta Division and is also a member of the Task Force, constituted for the purpose and duly notified by the Secretary, Health Department, Government of Balochistan. It has been alleged that on 22-1-2000 at 5-00 p.m. He alongwith the other members of the Task Force inspected M/s Muhammad Somro Medical Store, Kachra Road, Quetta wherein accused Abdul Bari was found present involved in illegal business of the medical store without any drugs Sale Licence in contravention relevant provisions of the Drugs Act. Cognizance of the offence was taken by the learned Drugs Court, consequent upon; filing of the complaint and process was issued against the accused to whom copies of complaint and other documents were delivered. In view of aforesaid accusation appellant was indicted for the offence under section 23 made punishable under section 27 of the Drugs Act, 1976 to which he pleaded not guilty and the complainant to substantiate the accusation produced two witnesses namely Syed Abdul Naeem, complainant/Drugs Inspector (CW-1) and Atta-ur-Rehman (CW-2). After close of the complainant's case, accused was examined by the learned Drugs Court under section 342, Cr.P.C.
Wherein he denied the accusation as it appeared in evidence against him. The accused did not opt to record his statement on oath with the purview of section \340(2), Cr.P.C. Nor produced any defence evidence. After close of the parties case the learned Drugs Court vide judgment impugned herein convicted and sentenced the appellant as hereinabovementioned.
3. Complainant's evidence. He deposed that on 22-1-2000 he was posted as Drugs Inspector Quetta and on the abovementioned date, he alongwith members of the Task Force visited Somro Medical Store at 5-00 p.m., situated at Kachra Road, Quetta where they found accused Abdul Bari present in the Medical Store who was asked for the Drugs Sale Licence but the accused could not produce the same, therefore, the said Medical Store was sealed by him vide memo. Exh.P/1-A produced by him. The complainant added that in order to point out the Medical Store for affecting of service of notice upon the accused he accompanied the process server and found that the Medical Store has been de-sealed and was being run by accused Abdul Bari who on enquiry made by him disclosed that the same was de-sealed. Also the complainant pointed out in his evidence that about the sealing of the Medical Store he had reported the same to Quality Control Board, which accorded approval for prosecution of the accused produced by him as Exh-P/1-B. He also produced the complaint filed by him in Drugs Court as Exh-P/l-C under his signature. Further, the complainant stated that the member of the Task Force comprised of a Magistrate Muhammad Tariq, Chief Drugs Inspector, Mr. Atta-ur-Rehman, Pharmacist Mr. Amanullah and Capt. Imtiaz, Drugs Quetta as a Chairman of the Task Force. Appellant was identified as accused in the Court.
' Mr. Atta-ur-Rehman, Chief Drugs Inspector (CW-2).
' According to this witness Task Force was constituted to take action against illegal Medical Stores and the medical practitioners practicing illegally and on 22-1-2000 at 5-00 p.m. He alongwith the members of the Task Force inspected/visited Medical Stores at Kachra Road, Quetta and in the Medical Store namely 'Somro Medical Store' accused Abdul Bari was found present to whom they asked about the Drugs Sale Licence but he failed to produce the same, consequently; according to the witness the Drugs Inspector sealed his Medical Store and a memo. Was prepared.
4. We have heard the learned counsel for the appellant as well as Mr. Ghulam Mustafa Mengal, Asstt. A..-G. Balochistan including the respondent No,1. Mr. Amanullah Khan Kakar contended that:- --
(a) The complainant has failed to establish the accusation through evidence that the appellant was found dealing or doing business of the Medical Store namely 'Soomro Medical Store' Kachra Road, Quetta and mere presence of the accused at the relevant time even if admitted would not constitute an offence under section 23(1)(c) of the Drugs Act.
(b) No corroboratory material or evidence has been produced at the trial in support of the accusation and the onus was not discharged.
(c) Dr. Javed Iqbal one of the members of Drugs Court was a member of the Task Force, hence; the proceedings and the impugned judgment delivered by the learned Drugs Court is coram non judice. The said member of the Court being party to the raid and sealing of the shop/Medical Store could not sit as Judge of his own cause, hence, the impugned judgment on this ground alone is not sustainable, and on the above grounds the judgment impugned herein being not sustainable is liable to be set aside and the accused entitled to be acquitted of the charge.
5. The learned Asstt. A.-G. Raised the following points:---
(a) The accusation as contained in the complaint has been duly substantiated through evidence by the complainant which could not be impeached nor any evidence in rebuttal has been produced by the accused and the charge against the accused has been established beyond doubt.
(b) Testimony of the complainant's witnesses is consistent, reliable and convincing. No motive or reasons has been advanced by the defence against the C.Ws: to falsely implicate the accused.
(c) Dr. Javed lqbal was the member of the Task Force constituted by the competent authority to curb the menance of spurious drugs/ unregistered Medical Pratitioners only and in absence of any material available on record it cannot be assumed that he was one of the members of the party, who raided the Medical Store in question, hence, the objection pertaining to the constitution of the Drugs Court and the proceedings taken by the said Court including the judgment passed by it was to a coram non judice, as also the said plea has been effectively dilated upon by the Drugs Court, and rejected on plausible and substantial grounds, thus, the impugned judgment is not exceptionable, consequently; the sentence passed on the appellant deserves to be maintained.
6. Respondent No,1 adopted the arguments put forth by the learned Asstt. A.-G.
7. We have considered the contentions advanced before us on behalf of the parties in the light of the record of the case and the relevant provisions of law including the impugned judgment, gone through carefully. Before dilating upon the merits of the case it would be proper to attend to the plea of the appellant's learned counsel that the proceedings as well as the impugned judgment delivered by the Drugs Court is coram non judice because one of the learned members of the '
Drugs Court namely Dr.Javed Iqbal participated in the raid/inspection of the Medical Store in question, who also allegedly facilitated in the process of sealing the said Medical Store hence he cannot be the judge of his own acts. It may be seen that during the course of arguments being advanced by the appellant's learned counsel he failed to refer or show any document in support of his said plea that the member of Drugs Court i,e, Dr.Javed Iqbal was a member of the party which raided/inspected the Medical Store in question or he in any manner directly was involved in the proceedings taken by respondent No,1 on the spot, therefore, in absence of any material it cannot be assumed that the plea so raised by Mr. Kakar is based on facts, and; conversely copy of Notification, dated 20-11-1999 issued by the Government of Balochistan (Health Department) and available on record reveals that Dr. Javed Iqbal (one of the members of the Drugs Court) has been notified to be a member of a Special Team constituted by the Government to curb the menance of spurious drugs/unregistered Medical Practitioners and therefore, in view of such Notification it cannot be said that he was one of the members of the Task Force meant for checking the Medical Stores etc. Moreover, vide corrigendum subsequently issued by the competent authority the discharge of duties and the specific functions to be performed by the District Health Officer, Quetta and Dr. Javed Iqbal, (member) Drugs Court, Quetta has been assigned to the extent that he shall act under the PMDC Ordinance in so far as it relates to the subject seIf Unregistered Medical Practitioners only and zmay accompany the Task Force for the said 'purpose. In view of this Notification and the corrigendum it is abundantly clear that Dr. Javed Iqbal was not one of the notified members of the Task Force which statedly raided/visited the Medical Store and; more particularly as hereinfore observed in absence of any evidence or material it cannot be held that the member of the Drugs Court acompanied the respondent No,1 to the Medical Store which allegedly was found being run without any Drugs Sale Licence or he facilitated in the process of sealing of the Medical Store or other proceedings, consequently; the proceedings drawn and taken by the Drugs Court and the judgment delivered by it cannot be treated as coram non judice.
8. Adverting to the merits of the case, the accusation is that the accused was found involved in doing the business i,e, sale of drugs in the shop situated at Kachra Road, Quetta under the name and style of Messrs Soomro Medical Store in contravention of the provisions of section 23(1)(c) of the Drugs Act, 1976 on 22-1-2000 at 5-00 p.m. And was found present in the said Medical Store when the respondent No,1/complainant alongwith the other members of the Task Force visited the same and he failed to produce any Drugs Sale Licence. In support of the accusation respondent No,1 namely Syed Abdul Naeem (Drugs Inspector) compiainant appeared in the witness-box as C.W. Land Chief Drugs Inspector namely Attaur Rehman appeared as C.W.2. Bare perusal of the evidence of these two C. Ws. Reveal that when they visited 'Soomro Medical Store' at 5-00 p.m. On 22-2-2000 accused Abdul Bari was found present in the Medical Store, who failed to produce Drugs Sale Licence on demand and consequently; the Medical Store was sealed by respondent No,1 in respect whereof Exh.C/1-A was prepared. In order to bring home the guilt against the accused onus heavily was on complainant to establish that the accused was involved in the business of the said Medical Store or the same was owned by him or he had any interest in the said business or was found selling any drugs or in any way was found connected with the sale of drugs `of said Medical Store where he was found present at the relevant time, but no evidence in support of the accusation about the sale of drugs or the accused being involved in the said business has been produced at the trial so as to attract the penal provisions of section 27 of the Drugs Act on account of the alleged contravention of the provisions of section 23(1)(c) of the said Act. All that has been proved _through evidence is that the Medical Store under the name and style of 'Soormro Medical Store' was found in existence at Kachra Road at the relevant time when the respondent No,1 alongwith C.W.2 visited the said store and the accused was found present there, who failed to produce licence for the sale of drugs and such proved factum per se would not be enough to constitute the offence on which the accused has been charged nor would it amount to the contravention of the provisions of section 23(1)(c) of the Act. It is pertinent to note that the learned Drug Court has attached much significance to the added version of the complainant that when he alongwith the process server subsequently went to the said Medical Store for the purpose of service of notice, he found the Medical Store having been de-sealed and the accused was present there. In any case, if such were the subsequent acts committed by the accused, the appropriate course open for the complainant was to have had promptly reported the matter to the police officer of the concerned Police Station to be entered as a 'Roznarncha report' and to have filed an other complainant against the accused after obtaining prosecution sanction from the Provincial Quality Control Board, but the permissible course has not been adopted by the complainant nor he filed any application in the Drugs Court even to produce additional evidence in support of the accusation, and therefore, in the given circumstances of the case it can be safely concluded that the respondent No,1 made material improvements in his evidence in order to bring home the guilt against the accused, therefore, no implicit reliance can be placed on his evidence and secondly, even if the evidence of the complainant remains unchallenged, the abovesaid material improvements made by him at the trial are liable to be excluded from consideration but the learned Drugs Court on wrong application of the principles of criminal administration of justice attached undue and unjustified evidentiary value to such part of the evidence of the complainant.
In our considered view mere presence of the accused at the relevant time in the Medical Store in absence of any other evidence or supporting material, would not attract application of the provisions of section 23 (1)(c) of the Drugs Act, 1976 which in the instant case is completely lacking, consequently; the conviction recorded by the learned Drugs Court and the sentence passed by the Court cannot sustain.
Thus, in view of the above discussion and reasons the impugned judgment is set aside and the appellant is acquitted of the charge, he be set at liberty forthwith, if not detained in connection with any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.