2020 P Cr. L J 402
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
Messrs CITY MARKETING SERVICE and 2 others ---Petitioners
Versus
The STATE ---Respondent
Criminal Miscellaneous Quashment No. 54 of 2019, decided on 21st October, 2019.
Drugs Act (XXXI of 1976) ---
----Ss. 23, 32 & 34 ---Criminal Procedure Code (V of 1898), S. 561 -A---Quashing of criminal
proceedings ---Sale of spurious and substandard drug ---Offences by companies ---Liability of
distributor ---No possibility of conviction ---Scope ---Drug Inspector recovered substandard
drug from a medical store, who produced purchase bill issued by manufacturer/Agents ---Sale
invoice revealed that the substandard drug was sold to the petitioners by the manufacturer ---
Admittedly, the substandard drug was manufactured by a private limited company, which
was a person in its own rights within the meaning of Ss. 23, 32 & 34 of Drugs Act, 1976 ---
No prosecution was launched against the company who had manufactured the seized drug ---
Petitioners, in the a bsence of company, its directors, agents, employers and warrantors, could
not be prosecuted as the liability of the manufacturer of the drug and his agent for
distribution thereof was co -extensive under S. 32(3) of Drugs Act, 1976 ---Petitioners were
not ma nufacturers of the seized drug nor were the agents or warrantors of the manufacturer
for distribution thereof; they could not be held liable for contravention of S. 23 of Drugs Act,
1976 ---Trial Court had failed to appreciate that there was no possibility of conviction even if
the remaining prosecution witnesses were also examined ---Proceedings pending against the
petitioners before the Drug Court were quashed and they were acquitted of the charge.
Fazal Elahi v. State 1985 PCr.LJ 268 ref.
Superintendent of Police, Federal Investigation Authority v. Akhtar Hussain Bhutta
PLD 1978 SC 193 rel.
Abdul Zahir Kakar for Petitioners.
Attaullah Langove, Assistant Attorney General -III along with Ms. Amber Noreen,
Drug Inspector for the State.
Date of hearing: 18 th September, 2019.
ORDER
NAEEM AKHTAR AFGHAN, J. ---In the instant Quashment petition under section
561-A, Cr.P.C., the petitioners have claimed the following relief:
"It is therefore respectfully prayed that keeping in view the above submission made
therein, this Hon'ble Court may be pleased to quashed the complaint above mentioned
and to prevent the abuse of process in the interest of justice, equity and fair play".
2. After hearing learned counsel for the petitioners, learned Assistant Attorney General -
III as well as Drug Inspector, we have perused the available record which reveals that the
petitioners are facing trial before Drug Court of Balochistan Quetta (hereina fter "the trial
Court") under section 23(1)(i) and 23(1)(a)(v) of the Drugs Act, 1976 hereinafter "the Act")
punishable under section 34 of the Act for recovery of substandard XAMOL Syrup from
"Diwan Medical Store Main Bazar Usta Muhammad" who produced pur chase bill of City
Marketing Services (Pakistan) having warranty of Abdul Rahim for the Manufacturer
Macquin's International of Karachi.
2.(sic.) The analysis report reveals that the seized Syrup had 65.63 purity percentage of
Paracetamole instead of requi red limit of 95% to 105%.
3. The petitioners did not plead guilty to the charge. The prosecution produced Mr. Abad
Moeez Khan Drug Inspector Dera Murad Jamali as PW -1 before the trial Court, whereafter
the petitioners submitted an application under section 265-K, Cr.P.C. which has been
rejected by the trial Court vide impugned order dated 6th March 2019.
4. Record reveals of sale invoice dated 4th June 2010 whereby the seized XAMOL
Syrup along with other medicines with batch numbers were sold to City Market ing Services
(i.e. the petitioners) by Macquin's International Pharmaceutical Manufactures of Karachi.
The said sale invoice contains warranty at its bottom which reads as follows:
"Warranty under section 23(1) of the Drugs Act, 1976. I Abdul Rahim being a person
resident in Pakistan, carrying on business at F/2 -H, S.I.T.E. Karachi under the name
of MACQUIN'S INTERNATIONAL, and being an importer/authorized Agent of
manufacturer/manufacturer of the drugs above do hereby give this warrant that the
drugs issu ed under described as sold/indented by me specified and contained in that
bill of sale invoice, bill of lading or other documents describing the goods referred to
herein do not contravene in way the provisions of section 23 of Drugs Act 1976".
5. The admit ted position in the instant case in that the substandard drug for which the
petitioners have been prosecuted was actually manufactured by Macquin's International
Pharmaceutical Manufactures Karachi which, being a Private Limited Company, is a person
in its own rights within the meaning of sections 23, 32 and 34 of the Act. No prosecution has
been launched against the Company who had manufactured the seized drug. In absence of the
Company, its Directors, Agents, employers and warrantor, the petitioners canno t be
prosecuted as the liability of the manufacturer of the drug and his Agent for distribution
thereof is co -extensive under section 32(3) of the Act which reads as follows:
"32......
(1).........
(2)..........
(3) A person, not being the manufacturer of a drug or his agent for the distribution
thereof shall not be liable for a contravention of section 23 if he proves: -
(a) that he did not know, and could not with reasonable diligence have ascertained,
that the drug in any way contravened the provisio ns of this Act and that the drug
while in his possession remained in the same state as when he acquired it; and
(b) that he acquired the drug from a duly licensed manufacturer or his authorized
agent or an importer or an indenter resident in Pakistan unde r a written warranty in
the prescribed form stating, in particular, the batch number of the drug and signed by
such person that the drug does not in any way contravene the provisions of section 23
and that the drug while in his possession was properly stor ed and remained in the
same state as when he acquired it and that the drug has been manufactured by a
manufacturer holding a valid license to manufacture drugs and permission to
manufacture that drug:
Provided that a defense under clause (b) shall be open to a person only -
(a) If he has, within seven days of the service on him of the summons, sent to the
Inspector a copy of the warranty with a written notice stating that he intends to rely
upon it and giving the name and address of the warrantor, and
(b) If he proves that he has, within the same period, sent written notice of such
intention to the said warrantor."
6. Admittedly, the petitioners are not manufacturer of the seized syrup nor they are
agents or warrantor of the Manufacturer for distribution t hereof, therefore, they cannot be
held liable for contravention of section 23 of the Act. Reliance in this regard is placed on the
case of Superintendent of Police Federal Investigation Authority v. Akhtar Hussain Bhutta,
PLD 1978 SC 193 wherein it has bee n held as follows:
"The admitted position in this case is that the substandard drug for the manufacture of
which the respondent herein was sought to be prosecuted was actually manufactured
by Messrs Nawabsons Laboratories Limited, Lahore, which being a pr ivate Limited
Company, incorporated under the Companies Act, 1913, would be a person in its own
right within the meaning of that expression as appearing in section 18, section 19(3)
and section 27 (ibid). By the plain language of the said three sections, t herefore,
prima facie Messrs Nawabsons Laboratories Limited seems to have brought itself
within the mischief of the law. Therefore, if the prosecution had proceeded against the
said Company, in view of the bar contained in section 19 (ibid), it would not b e open
to it to plead in defense that it was ignorant of the nature, substance or quality of the
said substandard drug or of the circumstances in which it was manufactured. In point
of fact under section 19(3), its liability would seem to be total. And con sequently
upon its conviction it could under section 27 be awarded the punishment of fine. The
difficulty in the way of the appellants, however, is that no proceedings were drawn up
against the said Company. Nor indeed the Company was made a co -accused in the
challan submitted against the respondent herein in the criminal Court.
In so far as the liability of the respondent is concerned, it would only arise if he can
be shown to have manufactured the said substandard drug for and on behalf of Messrs
Nawabso ns Laboratories Limited, as in the nature of things the made Company had to
act through a living person. It is true that at the relevant time respondent was the
Managing Director of the said Company. But then in the challan submitted against
him in the tri al Court no allegation was that it was he who had manufactured the said
drug on behalf of the said Company. Furthermore, it is common knowledge that in the
hierarchy of a Limited Company, the Managing Director is assisted by other directors
as well as exec utives, officers and workers. There is no reason to believe that in the
case of Nawabsons Laboratories Limited the system was any different. Therefore, it
would be difficult to presume that the respondent was guilty of the manufacture of the
said substanda rd drug for and on behalf of the Company, just because he happened to
be its Managing Director.
Furthermore, under subsection (3) of section 19 (ibid), the liability of the
manufacturer of drugs and his Agent for the distribution thereof would seem to be co-
extensive. But again this was not the case of prosecution in trial Court nor indeed is
there anything on the record of the case to show that the respondent had acted as
Agent of Messrs Nawabsons Laboratories Limited for the distribution of the
substanda rd drug."
Reference in this regard is also made to the case of Fazal Elahi v. State, 1985 PCr.LJ
268.
7. While rejecting the application of the petitioners under section 265 -K, Cr.P.C. the
trial Court has failed to appreciate that there is no probability of conviction of the petitioners,
even if the remaining prosecution witnesses are also examined.
8. On reappraisal of the material available on record and after gone through the relevant
provisions of the Act, it reveals that while passing the impugned order and rejecting the
application of the petitioners under section 265 -K, Cr.P.C., the trial Court ha s erred in facts
as well as law and has failed to properly exercise the vested jurisdiction.
For the above reasons, the Quashment petition is accepted. The impugned order dated
6th March 2019 passed by the trial Court is set aside and the proceedings pend ing against the
petitioners before the Drug Court Balochistan under sections 23 (1)(i) and 23(1)(a)(v),
punishable under section 34 of the Act are quashed and the petitioners Nos.2 and 3 are
acquitted of the charge.
SA/140/Bal. Proceedings quashed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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