' Z, A. CHANNA (CHAIRMAN).-The seven accused, of whom accused Khaleel Ahmed, Mohammad Ilyas and Abdullah are the Directors of Messrs Chas A. Mendoza, hereinafter referred to as the Company, while the remaining four accused are the employees of the company, have been tried in respect of a charge under section 23(a)(v11) of the Drugs Act, 1976 (hereinafter referred to as the said Act), read with section 27(1) (a) of the said Act, for manufacturing for sale certain drugs, namely Aspirin tablets, Paracetamol Compound tablets and Rutine Compound tablets, without the said drugs being registered in the name of the company, as required under section 7 of the said Act.
2. The prosecution case, shortly stated is that on 1-10-1976, at about 00.30 hours, a raiding party, consisting of officers of the Federal Health Ministry, the Health Department of Government of Sind and Police officials, accompanied by 2 mashirs, raided the factory of the company, which is missed in the manufacture of drugs, as they had information that the company was, in violation of the Federal Government Notification No, S. R.
0. 813 (1)76, dated 13th August 1976, manufacturing certain drugs which were not registered under the said Act, The raiding party is alleged to have found the factory working and accused Naimullah, All Nasir, Alam Zaib and Mohammad Jamil Jawed engaged in the manufacture of drugs. However, none of the accused, who are directors of the company, were present. Since the registration certificate in respect of the drugs being prepared in the factory was not forthcoming, the raiding party seised the drugs which were then under preparation in the factory, consisting of Aspirin tablets, Paracetamol Compound tablets, Rutine Compound tablets and an unidentifiable powder, under a recovery memo. Which was signed by the mashirs. A case against the accused was thereafter registered at Guiberg Police Station upon the written complaint of Dr. Sami Khan who was in the raiding party.
3. In support of their case against the accused the prosecution has examined Dr. Sami Khan (Assistant Drug Controller, Karachi). Mahe Alam mashirs of recovery of drugs from the factory of the accused, Dr. Pull (Chairman, Quality Control Authority, Government of Pakistan) and S. H.
0. Ghulam Hussain. The evidence of these witnesses is to the effect that they had raided the factory of the accused at 00-30 hours on 1-10-1976 and found manufacture of drugs being carried on there, in that some workers wore filling capsules with drugs while others were stripping Aspirin tablets with the assistance of a stripping machine.
4. Accused Khaleel Abmad, in his statement in Court under section 342, Cr. P. C , has denied that their factory was working or any drugs were being manufactured therein at any time on 1-10-1976.
His version is that the process of manufacture had been completed at 10.30 p.m. On 30-9-1976, whereafter no manufacturing process was carried on, but some of the workers had remained behind to clean the machines and keep the stock in store, according to the normal practice. He has further alleged that the Director-General, Health had suspended their manfacturing licence, which was restored by the Minister of Health, and this fact annoyed the Director-General, under whcse instructions and at whose instigation they have been falsely involved.
5. Accused Abdullah and Mahomed Elias, while adopting the statement of accused Khaleel Ahmed, have further stated that they sit in the Head Office of the company and have no direct concern with the factory or the manufacturing process carried on there. According to accused Abdullah he is in charge of the accounts at the Head Office while according to accused Mohammad Ilya he is in charge of sales Department.
6. The case of accused Alamzaib and Mohmmad Jamil is that they are not employees of the company and have no concern with it at all. According to accused Alamzaib he had merely gone to meet this uncle Mohammad Rafique, who works in the factory, while according to accused Mohammad Jamil Jawed he had merely accompanied his friend Alamzaib to the factory of the company.
7. Accused Naimullah and Ali Nasir, while admitting that they are employees of the company, have stated that the raid had taken place not on 1-10-1976. At (0-30 hours, but on 30-9-1976 at 11.30 p.m.
By which time they bad finished the process of manufacturing drugs and were merely cleaning the machines. They have further stated that they have no concern with the manufacture of drugs and are mere helpers in the factory.
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8. No defence has been led by the accused.
9. The three points which fall for consideration are t-
(a) Whether the raid of the company's factory took place after mid-night of 30-9-1976 ;
(b) Whether at the time of the raid any process of manufacture of drugs was being carried on in the factory ; and
(c) if the answer to the above two points is in the affirmative, which accused are guilty of the offences with which they have been charged ?
10. Now as to the time when the factory of the accused was raided, we have the testimony of P. Ws.
Dr. Semi Khan, Msshir Mahe-Alam, Dr, Fazli and S. H.
0. Ghulam Hussain. All four of them have stated in unequivocal terms that the factory, was raided at 00-30 hours on 1-104976. The date 1-10-1976 is important because on 13-8-1976. The Government of Pakistan had issued a notification under section 7 (6) of the Drugs Act, being S. R.
0. No, 813(1)/76, fixing 30th September 1976, as the date after which no drug which was not registered under the Act could be manufactured. Dr. Fasli has stated that as the Ministry of Health had received information that certain firms would continue to manufacture drugs after the cut off date, he had come down to Karachi to see that no manufacture of drug takes place after the cut off date. He has further stated that he had called some officers at about 9-00 p m, on 30-9-1976 to chalk out a plan for raiding the factories which were likely to infringe the provisions of the above notification, and in pursuance of that plan they had met D. S. P.. Lalukhet at about 11.00 p.m. To secure his help for raiding the factory of the accused, but the D. S. P. Referred them to Gulberg Police Station as the factory was located within the jurisdiction of that Police Station. Dr. Fazli then goes on to state that they went to Gulberg Police Station, where they reached at about 12-00 mid- night, and from there they started at 12-15 a.m. On 1.10-1976 alongwith the S. H.
0. Of the Police Station, and came to the factory of the accused at 00-30 hours.
11. The evidence of Dr. Sami Khan on this point is substantially similar to that of Dr. Fazli. He has testified that he met Dr. Fazli at 94)0 or 9-15 p m. And after making arrangements for raiding the factories which were to manufacture unregistered drugs after the cut off date, they proceeded to Lalukhet Police Station from where they were directed to GulbeLikelyrg Police Station where they arrived at 12-CO mid-night. Dr. Semi Khan has further stated that at the latter Police Station they obtained police help and the police also sent for a mailer, whereafter they proceeded to the factory of the accused where they reached at 00-30 hours on 1-10-1976.
12. The evidence of S. H.
0. Ghulam Hussain is that on 1.10-1976, at 00-15 hours, he was returning from a round of his jurisdiction to Gulberg Police Station when he met the officers of the Health Ministry and the Provincial Health Department, who were accompanied by D. S. P. Zaffar Iqbal. He has further testified that under the directions of D. S. P. Zaffar Iqbal he accompanied them and mashirs Mahe Alam and Said Jan to the factory of the company, which they found working and accordingly Dr. Semi Khan had at the factory itself given him a written complaint which he had subsequently forwarded to the Gulberg Police Station for incorporation in the Register of cognizable cases. The S. H.
0. Has also stated that the same night, after raiding the factory of the company they had raided Alpha factory.
13. The testimony of Masbir Mahe Alam is to the effect that on the night intervening between 30-9- 1976, and 1-1C-1976 he was returning to his house in Federal 11' Area, after seeing a show at Arshi Cinema, when he was called by the police and taken to the factory of the company by the police and the officers in the raiding party.
14. In addition to the above ocular evidence, there are two pieces of documentary evidence to show the raid on the factory of the company had taken place after mid-night of 30-9-1976. The first such piece of evidence is the written complaint given by Dr. Sami Khan to S. H.
0. Ghulam Hussain at the factory of the company. In that complaint the time of the raid is shown as 12.30 a.m. On 1.10-1976, that is half an hour after mid-night of 30th September 1976. The second piece of evidence is the mashirnama of the recovery prepared by the S. H.
0., which has been signed by the two mashers. The S. H.
0. And Dr. Sami Khan. Although it does not mention the time of the raid, it is dated 1.10-1976.
15. The learned counsel for the accused has assailed the above evidence on various counts and submitted that it is thoroughly unreliable. His first contention was that the conduct of Dr. Full and Dr. Sami Khan in making preparations for the raid even before the cut off time clearly manifests a male fide intentention. We find no substance in this contention. Since Dr. Fazil as well as Dr. Sami Khan had previously received information that some pharmaceutical firms would continue to manufacture unregistered drugs after the date specified in this behalf by the Federal Government, they rightly made plans ahead to raid such factories immediately after the cut off date with a view to catch them red-handed.
16. The learned counsel also urged the ground of MTh' fides against the officers of the Ministry of Health and the Provincial Health Department on the basis that accused Khaleel Ahmed, who is the Managing Director of the Company, was arrested and detained under the D. P. R. No documentary or oral evidenc-, however, has been produced to show under what circumstances and on what grounds he was so arrested or detained. There is also nothing to show that the action against him under the D. P. R. Was at the instigation or even suggestion of the officers of the Health Ministry or the Provincial Health Department or that it had any connection with the instant matter.
17. The learned counsel for the accused also submitted that the evidence of the P. Ws. Was contradictory and hence not worthy of reliance being placed thereon. He submitted that whereas the S. H.
0. Has stated that there were two 'mashir's, Mahe Alm does not speak of second mashir and was unable to say whether any one else had signed the mashirnama. The mashirrnama, however, not only bears the signature of the second mashir but also of Dr. Sami Khan. Furthermore, Mahe Alam states that besides the policemen who were in uniform there were 10 other persons in the raiding party who were not in uniform. Since the second mashir was the driver of the taxi In which the raiding party had gone to the factory of the company, mashir Mahe Alain may not have realized that the driver was the second mashis'. It may also be mentioned that besides the S. H.
0., Dr. Faith specifically makes mention of the second masher.
18. Mr. Hussain Shah Rashdi also referred to the contradiction between the 162, Cr. P. C. Statement of mashir Mahe Alam and his evidence in Court as to wherefrom he was coming when the police made him a masher. While in his 162 Cr. P. C. Statement the mashir has stated that he was returning from a visit to his relatives, in his evidence in Court he has stated that he Was returning from a Cinema show. This is minor contradiction apparently caused by loss of memory due to lapse of time and does not indicate that the masher is a false witness.
19. Dr. Fizli and Dr. Sami are senior and responsible officers of the Government and had no motive for falsely implicating the accused. Furthermore, they are supported by S. H. O. Ghulam Hussain and mashir Mahe Alam who are independent witnesses having no concern whatsoever with either the Ministry of Health or the Provincial Health Department. We are accordingly satisfied from the evidence of the P. Ws. That they had raided the factory of the company at 00-30 hours on 1-10- 1976.
20. We are also satisfied on the basis of the evidence on record that at the time of the raid the raiding party found drugs being manufactured in the factory of the company.. All the four P. Ws.
Who have been examined in the case have testified that when they raided the factory of the company they found drugs being manufactured therein. Dr. Sarni Khan has deposed that the we of the Company were filling capsules with drugs and stripping Aspirin tablets. A-dash& Mahe Edam has stated that the accused other than those who are directors of the company were found manufacturing and packing drugs and tablets. Dr. Faith has testified that at the time of the raid they found four types of drugs being manufactured. Namely, aspirin tablets, paracetamol compound tablets, putine compound tablets and an unidentified powder. He has further stated that the aspirin tablets were being stripped by the assistance of a stripping machine, the paracetamol compound tablets were being packed into cartons, the rutine compound tablets were being filled into bottles while the unidentified powder was being filled in capsules. S. H.
0. Ghulam Hussain has supported the evidence of the other three P. Ws. And stated that at the time of the raid the accused other than the accused who are Directors of the Company were preparing drugs, though he candidly admitted that he did not remember what each accused that they found in the factory was doing. The evidence of these witnesses establishes beyond doubt that drugs were being prepared and packed in the factory of the company at the time of the raid. It may be pointed out that the word "manufacture" has been defined in the said Act, in relation to a drug, as all operations involved in the production of a drug, including filling, packing, re-packing, etc.
21. The company is a pharmaceutical concern engaged in the manufacture of drugs for the purposes of sale. It is not shown that the drags that were being manufactured in the factory of the company at the time of the raid were for any other purpose. The very fact that the drugs were being packed into cartons, filled in bottles and capsules and the tablets were being stripped clearly indicates that they were meant for sale.
22. It was urged by Mr. Hussain Shah Rashdi that the manufacture of the aforesaid drugs by the company after the date notified in this behalf in the S. R.
0. Of 13-8-1976, did not infringe any provisions of the said Act since the company possessed a valid and subsisting licence to manufacture those drugs. It is not disputed by the prosecution that the company did possess a manufacturing licence which was subsisting at the time of the raid. The manufacturing licence appears to have been cancelled on 13-1-1977, much after the raid, after a show-cause notice and inspection of the factory of the company. However the charge against the accused is not of manufacturing drugs without possessing a manufacturing licence but of manufacturing unregistered drugs in contravention of section 7 of the Act. Subsection (6) of the said section confers powers upon the Federal Government, by notification in the official Gazette, to fix the date after which no drug which is not registered shall be manufactured, imported, exported, stored, distributed or sold. Such a notification was issued and the cut off date in the notification was 30-9-1976. Section 7 of the said Act read with Drugs (Licensing, Registering and Advertising)
Rules, 1974, particularly rule 26, the form of application prevribed under the said Rules for registration of a drug and the form a,.:e.Tifical,c for registration of a drug under the said Rules and Act clearly envisage that only the party to whom a certificate of registration is granted in respect of a drug can manufacture, import or indent that drug. It is not disputed that the drugs which the raiding party found being manufactured in the factory of the company aro not registered in the name of the company and that the company does not possess registration certificates in respect of them.
23. The contention of Mr. Hussain Shah Rashdi however, was that the company, since its manufacturing licence for the production of the drugs in question was intact and still valid, was not required also to have the said drugs registered, and for this contention he relied upon section 45(2)
(a) of the said Act. The said provision merely saves manufacturing licence granted under the Drugs Act, 1940, until orders are passed by the Licensing Board in this behalf. The said provision is clearly subject to the provisions of section 7 of the said Act relating to the registration of drugs and particularly subsection (6) of the said section, which prohibits the manufacture, etc. Of an unregistered drug after the date fixed in this ?Behalf by the Federal Government. The said date having been fixed as 30-9-1976, the manufacture of unregistered drugs by the company after that date was in contravention of section 23(a)(.10 of the said Act.
24. It only falls to be considered which of the accused are guilty of the commission of the offence for which they have been tried. We have already referred to the fact that at the time of raid accused Naimullah, Ali Nasir, Alam Zaib and Mohammad Jamil Jawed were present in the factory which was found working. These accused, according to the testimony of the witnesses, were engaged in stripping aspirin tablets and filling the other drugs in bottles, capsules and cartons.
None of these accused have denied their presence in the factory at the time of the raid. However, according to accused Mohammad Jamil Jawed and Alamzeb they are not employees of the factory and had merely gone to visit the uncle of accused Alamaeb who is an employee of the factory. We find no substance in this contention, firstly, because all the four P. We. Have categorically asserted that these 2 accused were engaged alongwith accused Naimullah and All Nasir in the preparation of drugs, secondly, if these accused were not the employees of the factory they could easily have established this fact but not even one question was put to any P. W.
Suggesting that they are not the employees of the company and finally 00.30 hours at night could hardly be a time for visit to a relation in a factory, specially if the purpose of the visit is not even disclosed. So far as accused Naimullah and Ali Nasir are concerned, they have themselves admitted that they are employees of the factory and were present at the time of the raid. However, according to them they are merely helpers and not engaged in the manufacture of drugs, that the manufacuring work had been completed at 10-30 p.m. On 30-10-1976 and that thereafter they were merely cleaning the machines when the riading party turned up at 11-30 p.m, We find no substance in any of these claims in view of the very positive and reliable evidence of the P. Ws. That the raid took place at 00-30 hours on 1-10-1976 and that at the time of the raid drugs were being manufactured and packed in the factory.
25. So far as accused Khaleel Ahmed, Mohammad Abdullah and Mohammad Ilyas are concerned, though they were not present in the factory at the time of the raid, they are the directors of the factory, and hence are liable alongwith the other accused under the provisions of section 34 of the said Act. They have failed to prove that the offence was committed without their knowledge or consent. The other accused could not have continued to operate the factory and manufacture and pack drugs after the cut off date without the instructions of at least the knowledge of accused Khaleel Ahmed who is the Managing Director of the company and in charge of the factory, and even the other two accused, despite their claim that they sit in the head office and have no concern with the manufacture in the factory. The me fact that they sit in the head office does not mean that whatever takes pla in the factory is done without their knowledge or consent. Besides we ha only their word that they sit in the head offioe.
26. On a careful appraisal of the entire evidence led in the case we a satisfied that all the accused are guilty under section 23(a) (vii) of havin manufacture for the purposes of sale drugs which were not registered un section 7 of the said Act. Such an offence is punishable under tion 27(1)(a) which imprisonment for a term which is not to be less than 3 years and with a fine which may extend to one lakh rupees. We, however, do not consider that any heavy penalty is called for in the instant case. The proviso to section 27(1) to the said Act empowers a Drug Court, for special reasons to be recorded, to awards lesser sentence. Such special reasons are present in the instant case. The raid on the factory of the company took place only half an hour after the cut off time. There was thus, in our opinion, a technical violation of the provisions of section 27(1)(a) of the said Act rather than a flagrant and contumacious disregard of the same. People in our country generally are neither punctual nor do they appear to be conscious of time. In the circumstances we do not think that any heavy penalty against the accused is called for. On the contrary, the circumstances C of the case call for only Mild punishment. We would accordingly, while con. Victing all the accused of an offence under section 23(a)(vii) of the Act road with section 2 )(1)(a) thereof, sentence each accused to imprisonment till rising of the Court. In addition, wined Khaleel Ahmed is sentenced to pay a fine of Rs, five thousand, accused Abdullah and Mohammad Ilyas are sentenced to pay a fine of Rs, two thousand each, while each of the remaining accused is sentenced to pay a fine of RI.
One thousand. In default of payment of fine, the defaulter will undergo further imprisonment for a period of six months.
Order accordingly.
1978 P Cr. L 403 [Lahore] Before Mazhar ul Haq, J GHULAM RASOOL AND ANOTHER-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No, 4332 of 1977. Decided on 13th November 1977.
Criminal Procedure Code (V of 1898)- - S. 497(2)-Story put up by wife of deceased not fitting in with medical evidence-Petitioners not named In F. I. R. - Petitioners allowed bail in circumstances. (p. 40414 Permit Ahnsad Buttar for Petitioners. S. M. Mohsin for the State.
' Ghulam Rasul and Gulls petitioners arc accused of the murder of Naza. The case was registered against them on 24-8-1976 of Police StationBakker, District Mianwali.
2. Mst. Aishya sister of Ghulam Rasul petitioner was suspected of illicit relations with Naze (deceased). About a fortnight before the occurrence in this case, Mst. Aishya was seen by her brother Gulls in the kotha of Naaa deceased. On that day wife of the deceased was away. With this motive for crime prosecution alleged that Gulla petitioner and his co-accused Ghulam Rasul committed the murder of Naza in the courtyard of the deceased. Ghulam Rasul said to have held the deceased by his arms while Gulls inflicted dagger blows on his neck. Mst. Saddo Mai wife of the deceased had got up on the alarm but was threathened with death by the accused. During the alarm Nan fell from the chavai and died on the spot. On the alarm raised by Mst. Saddo, nephew of the deceased came there. Two wajtakar witnesses namely, Sohna and Bakha also reached the spot. The matter was reported to the Police on the following day at 11-20 a.m.
3. It was contended that the night of occurrence was dark as supported by the calendar of 1976 and that it was a blind murder. Later after deliberation the petitioners were falsely implicated in this case. It was also argued that the story put up by Mst. Saddo did not fit in with the medical evidence because according to her, Ghulam Rasul had held the deceased by his arms; but there are three injuries on the hand and two on the shoulder of the decease which indicated struggle on his part and had the deceased been held by his arms there could not have been injuries on his hand and the shoulder. This is a matter which cannot be gone into deeper at this stage. However, the fact remains that soon after the occurrence. Mst Saddo Mai was said to have named the assailants of her husband but the deceased nephew who made the report to the police on the following day at 11-20 a.m. Did not mention the names of the assailants of his uncle in the F. I. R. Nor he mentioned the names of Sohna and Bakha the two wajtakar witnesses who alle,edly reached the place of occurrence soon after the departure of the accused. In view of the submissions made regarding medical evidence and the fact that the petitioners are nit named in the F. I. R.. I am of the view that it is a cue of further inquiry amply concerned by the provision of section 497 (2), Cr. P. C. I, therefore, allow bail to the perisoners in the sum of Rs, 20,000 (Rs, twenty thousand) each with two sureties in the like amount each to the satisfaction of A. C. Bakker.