The brief facts out of which the above ' writ petition arises are that the petitioners is a Hakim having diploma from National Council for Tibb Government of - Pakistan after completing four years course and he is practicing Hakim duly certified by National Council for Tibb by Government of Pakistan. The petitioner submitted an application for drugs sale license for Allopathic drugs before respondent No,2 which was duly issued by respondent No,2, therefore, the petitioner 'is' running his Medical Store in the premises in question. The petitioner is also residing in the same premises.
Respondent No,1 raided the premises of the petitioner on 12-1-2002 and sealed the medicines and also sealed the petitioner's store as is evident from Annexure-A attached with the writ petitions. The petitioner being 'aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that respondents had sealed the medicines and medical store of the petitioner under the provisions of Drugs Act, 1976. The action taken by the respondents under section 18(iv) of the Drugs Act,1976 is subject to section 19 of the said Act and subsection (6) of section 19, therefore, action of respondent/Inspector is not in accordance with the provisions of the Drugs Act, 1976. He further submits that action of respondent No,3 is in violation of the mandatory provisions of section 18(i) as the respondents could not seal the premises beyond four weeks. In support of his contention he relied upon Tahir Nawaz and others v. Shamshad Ali and others (1988 PCr.LJ 1328. He further urges that respondents exceeded jurisdiction under the' Drugs Act by sealing petitioner's Medical Store and medicines which are owned by him and some of them for his own treatment. The petitioner's doing his lawful business under the permission of the competent authority as is evident from the licence issued by respondent No,2 which is attached with the writ petition as Annexure-B. He further submits that action of the respondents is in violation of the mandatory provisions of the aforesaid Act and the law laid down by the superior Courts. In support of his contention. he relied upon the unreported judgments in Writ Petition No,9779 of 2001: and Writ Petition No,20264 of 1998.
3. The learned Additional Advocate General submits that the petitioner is practising as Hakim at the premises in question but he is involved in illegal medical practice of Allopathic drugs which is evident from the recovery memo. attached with the writ petition as Annexure-A as is evident from the items No,11 and 12 mentioned in the said memo. The Federal Government has discontinued/deregistered these vials. The petitioner's licence was valid upto 2-10-2001 and the petitioner thereafter did not prefer any application to the Licensing Authority for its renewal. He further submits that the retail sale of drugs were being done without having supervisions of the qualified person as required under rule 20(2) of the Punjab Drug Rules, 1988. The Ex-employee of the petitioner Mr. Muhammad Tahir Habib has already submitted application to the Licensing Authority that he had left the job and subsequently Licensing Authority issued a notice dated 3-1- 2002 to the petitioner for the arrangements of new qualified person but he failed to do so.Respondent/Inspector inspected the premises of the petitioner and found stocking for sale of drugs by way of retail sale without the supervision of qualified person. The respondents had taken action strictly in accordance with the provisions of the Drugs Act. He further submits that the expired drugs have not been kept separately and no expiry itself has been maintained in the store.
The expired drugs inquestion mentioned at serial No,8 to 10 mentioned in the recovery memo. attached with the writ petition as Annexure-A have been expired since long. The petitioner has alternative remedy before the Provincial Quality Control Board Punjab, Health Department, Lahore and Drug Court Faisalabad, therefore, the writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is pertinent to mention here that respondent/Inspector is duty bound to send the reports to the Provincial Quality Control Board for necessary action as is envisaged by section 11(5)(b). Therefore, the report of respondent/Inspector is of interim nature coupled with the fact that petitioner's licence had already been expired from 2-10-2001. This fact brings the case of the petitioner in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction to resolve. It is pertinent to mention here that sections 11(5)(b), 19b) and 22(3)(c) of the Drugs 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 instructions from the Provincial Quality Control Board. As mentioned above, the impugned order is not final order. The judgment relied upon by the learned counsel of the petitioner Tahir Nawaz's case supra (1988 PCr.LJ 1328) arose out of the order passed by the Drug Court. Therefore, the same is not applicable in the present case. The unreported judgments relied upon the learned counsel of the petitioner did not consider the effect of the aforesaid provisions of the Drugs Act and rules framed thereunder. Therefore, said unreported judgments are also not applicable in the present case.
Since the petitioners have alternative remedy before the Provincial Quality Control. Board. therefore, writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in Muhammad Ismail's case (PLD 1996 SC 246). The Licence of the petitioner has already expired coupled with the fact that expired medicines were also found from the premises of the petitioner. Keeping in view these circumstances, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case (PLD 1973' SC 236). However, in the interest of justice and fair play Chairman Provincial Quality Control Board is directed to pass an appropriate order strictly in accordance with law within 15 days after receiving the order of this Court or send the same to the competent authority who is also directed to pass an appropriate order strictly in accordance with law within 15 days after receiving the order of this Court. He is further directed to submit report to the Deputy Registrar (Judl) of this Court within the stipulated period. The petitioner is directed to appear before Chairman Provincial Quality Control Board on 20-2-2002 who is directed to pass an appropriate order strictly in accordance with law after providing proper hearing to the petitioners within 15 days till 7-3-2002 or send the same to the competent authority for decision. In case the competent authority fails to pass final order within the prescribed period then the respondents are directed to deseal the shop of the petitioner forthwith.
With these observations this writ petition is disposed of.