' Z. A. CHANNA (CHAIRMAN).--Accused Abdul Aziz, the proprietor of Messrs Diamond Pharmaceuticals Laboratories, Karachi, has been tried by this Court on the charge of selling, on or about 30.7-1976 Borax Glycerine 12% batch No. 01045, manufactured by his factory, to Messrs Mohammad Taqi tvlohammad Saeed of Karachi, under a written warranty, which drug %Vali sub- standard and the warranty was false. The accused originally pleaded not guilty and claimed to be tried. However, on the conclusion of the case, and even after defence evidence was led, the accused submitted an additional plea, pleading guilty to the offences under section 23(i)(a)(v) read with section 27(4) of the Drugs Act, and section 27(2)(b) of that Act. We may mention here that this plea was possibly entered by the accused by reason of the report submitted by the National Health Laboratories under section 22 of the Drugs Act, supporting the report of the Government Analyst and Chemical Examiner to the Government of Sind that the said drug was sub-standard.
2. The facts of this case, shortly stated, are that on 16-8-1976, Drug Inspector Salimuddin Mufti took a sample of borax glycerine 12 %, batch No. 01045, from the shop of Mohammad Taqi Mohammad Saeed, which was manufactured by Diamond Pharmaceuticals Laboratories, owned by the accused. The sample, which was seized in accordance with the procedure prescribed under the Drugs Act and the rules framed thereunder, and properly sealed, was sent to the Government Analyst and Chemical Analyser, who reported that the sample was sub-standard as it contained 6.73% w/w of borax the main active ingredient) instead of 12% w/w, as stated on the label of the sample. The seizure of the aforesaid drug was supported by P. W. Mohammad Iqbal a partner of Messrs Mohammad Taqi Mohammad Saeed who has further testified that he had bought the aforesaid drug alongwith more quantities oF'similar drug and other drugs from the accused on 30- 7-1977, and that the accused had given him an invoice and warranty, dated 5-8-1976, for the same.
The witness Mohammad Iqbal also stated that some three months after the seizure of the drug in question by the Drug Inspector from his shop, the accused had taken away similar drugs sold by the accused to him, consisting of 7 dozen bottles of borax glycerine, on the ground that they were sub-standard and he wanted to re-check the same.
3. The accused has not denied manufacturing the drug in question and selling the same to Messrs Mohammad Taqi Mohammad Saeed. He has also not denied that he had given the said firm an invoice and a warranty. He has further not disputed the position that the sample taken by the Drug Inspector from Messrs Mohammad Taqi Mohammad Saeed was sub-standard. His case is that glycerine, which is one of the components of borax glycerine, is highly hygroscopic and it appears that the sample in question had absorbed moisture from the air because possibly the stopper of the bottle was not properly fixed.
4. In defence, the accused has examined two persons, namely, Mr. Abdul Aziz Khatri and Noorul Amin. Mr. Khatri, who is an Assistant Professor of Chemistry, Government Delhi College, Karachi, has deposed that borax glycerine is highly hygroscopic in nature and it absorbs moisture from the air.
He, however, was unable to say what percentage of moisture borax glycerine can absorb, whether such percentage was 1 %, 10% or 100 %. He also admitted that if a bottle containing borax glycerine is properly stoppered, it cannot absorb moisture.
5. D. W. Noorul Amin claims to have been working as Assistant Chemist in the Production Wing of 'Diamond Pharmaceuticals Laboratories, Karachi. According to him, borax glycerine 12%, batch No. 01045, was manufactured on 1-4-1975. He, however, was not able to produce the register showing the dates on which particular batch numbers of drugs were manufactured or the register showing the tests carried out by the Chemist Dapartment in respect of each drug. Furthermore, he was unable to give the batch number of the last batch of borax glycerine manufactured by Diamond Pharmaceuticals Laboratories, Karachi.
6. Since the manufacture and sale of the drug in question by the accused is not disputed, the only question which arises for determination is whether the samples seized by the Drug Inspector could have absorbed so much moisture from the atmosphere so as to give the results submitted by the Government Analyst and the National Health Laboratories. Although glycerine is undoubtedly hygroscopic, as stated in the British Pharmacoposia, and in fact it is this property of the drug which is made use of in the cure of certain ailments, it obviously cannot absorb moisture unless it is exposed to the atmosphere. Although a slight absorption of moisture would take place if the stopper of a bottle containing borax glycerine became loose or was not properly fastened or even the bottle was not properly dried, there is no evidence to indicate that any of these circumstances existed. The evidence of the Drug Inspector is clear that the bottles containing the samples of the drug which he had seized from the shop of Messrs Mohammad Taqi Mohammad Saeed were properly stoppered and there was no question of moisture getting into the contents. There is also no evidence to show that the bottles containing the sample sent either to the Chemical Examiner to the Government or to the National Health Laboratories had not been properly dried and some moisture had got inside the bottles. However, even if there had been some evidence to show that either the stoppers of the bottles in question had not been properly fastened or some traces of moisture remained in the bottles when borax glycerine was put into them, there would not have been such shortage of borax or glycerine or at any rate such addition of moisture as is disclosed in the reports of the Chemical Examiner and the National Health Laboratories. These reports indicate that the absorption of water was to the extent of 100 % of the total quantity of glycerine. This could only be if there had been a deliberate addition of water to the borax glycerine before their containers were stoppered and sent out for sale.
7. In the circumstances, we are unable to hold that the two samples of the drug in question became sub-standard either because the stoppers of the bottles in which they were contained became loose or the bottles had not been properly dried before the drug as filled into them. We would accordingly accept the further plea of the accused admitting his guilt. In any case, there is overwhelming evidence to establish his guilt.
8. For the reasons stated above, we would convict the accused of offence under section 23(i)(a)(v) read with section 27(4) of the Drugs Act, 1976, and section 27(2)(b) of the said Act. We are of the opinion that no very heavy sentence is called for in the instant case, as borax glycerine is not such a drug wherein even a major variation of the active ingredient may resul in serious consequences.
Further, we have taken note of the fact that a soon as the accused found out that the batch in question was sub-standard, he tried to make amends, by withdrawing the entire batch. On the other hand, we do not think that the actions of which the accused has been held to be, guilty can be termed as very trivial. Taking all the circumstances of th case into consideration, we would impose on the accused for each of the two offences a fine of Rs. 5,000 or in default to suffer R. I. For one year. In othee words, for the two offences established against the accused he will pay a total fine of Rs. 10,000 or in default to undergo for two years.
The drugs in the case are ordered to be destroyed.