P L D 2012 Balochistan 140
Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ
MUHAMMAD JAMIL and another ---Petitioners
versus
THE STATE through Provincial Drug Inspector, Quetta ---Respondent
Crimi nal Quashment Petition No.3 of 2008, decided on 15th November, 2011.
(a) Drugs Act (XXXI of 1976) ---
----Ss. 19, 22(2), 23(i)(a)(iv)(v) & 27(4)(6) ---Drugs (Federal Inspectors, Federal Drugs
Laboratory, Federal Government Analysts) Rules, 1976, R.16 ---Criminal Procedure Code (V
of 1898), Ss.561 -A, 249 -A & 265 -K---Manufacturing and supplying misbranded and
substandard medicines ---Quashing of complaint/proceedings, petition for ---Drug Laboratory
after test and analysis declared that medicine produce d in the company was misbranded and
substandard; and subsequently the Board granted sanction for prosecution against the company --
-Without prosecuting the company, two employees of the company i.e. Quality Control Incharge
and Warrantor had been prosecuted ---Application filed by the petitioners under Ss.249 -A & 265 -
K, Cr.P.C. for acquittal, having been dismissed, petitioners had filed petition under S.561 -A,
Cr.P.C. for quashing of proceedings ---Validity ---Without prosecuting the company, the
employees of t he company could not be held liable for any offence under the Drugs Act, 1976 ---
According to S.22(3) of the Drugs Act, 1976 the Government Analyst, would submit the report,
after test and analysis within sixty days of the receipt of the sample of the drug ---In the present
case, said report had been submitted after nine months and four days in violation of S.22(2) of
the Drugs Act, 1976 and no reason had been communicated to the Drugs Inspector in writing by
the Analyst, nor any such reason had been endorsed to the Provincial Quality Control Board ---
"Communi observantia non est recedendum" i.e. "where a thing was provided to be done in a
particular manner, it had to be done in that manner and, if not so done, same would not be
lawful" ---Mandatory provision of law i.e. S.22(2) of the Drugs Act, 1976 having been violated
and on the basis of such delayed test report no conviction could be awarded ---Certificate of
test/analysis issued by the Central Drug Laboratory, did not show protocol of the test applied, it
was a mandatory requirement, that the report of Analyst should be conclusive and must disclose
the tests applied under R.16 of the Drugs (Federal Inspectors, Federal Drugs Laboratory, Federal
Government Analysts) Rules, 1976 ---Drug Court at the time of pass ing the order impugned was
not properly constituted ---Under S.31(2) of the Drugs Act, 1976, a Drug Court would consist of
a Chairman and two Members ---In the present case, impugned order had been passed/singed by
the Chairman and not by any other Member of the Drug Court, meaning thereby that the quorum
was not complete and the Chairman Drug Court had singly passed the order without any lawful
authority due to lack of the quorum ---Impugned order was non -speaking order and grounds
agitated by the petitioners /accused in their application under Ss.249 -A and 265 -K, Cr.P.C. had
not been attended/discussed; nor the Chairman of the Drug Court had considered the said
provision of the Drugs Act, 1976 and the Rules framed thereunder ---If trial was proceeded
further an d evidence was recorded, even then, there was no probability of the conviction of the
petitioners ---Impugned order was set aside and the proceedings pending before the Drug Court
against accused/petitioners were quashed and they were acquitted, in circumst ances.
Qassim Shah v. The State PLD 1991 SC 893; W. Woodwards (Pakistan) Ltd. v. State
1985 PCr.LJ 2064; Faqih Alam v. State 1998 Kar. 268 and Nawab Sons Laboratories (Pvt.) Ltd.
v. Government of Punjab PLD 2003 Lah. 115 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 249 -A, 265 -K & 561 -A---Powers of the courts to acquit accused ---Provisions of
Ss.249 -A and 265 -K, Cr.P.C. were co -extensive with similar powers of High Court under S.561 -
A, Cr.P.C.; and nothing was deemed to prevent a court from acquitting an accused at any stage
of the case, after hearing the prosecutor and accused; and for that reason to be recorded, it
considered that there was no probability of accused being convicted of any offence.
Munir Ahmed Bhatti and Nadeem Ahmed Khan for Petitioners.
Atiq Ahmed Khan, Addl. P.G. for the State.
Date of hearing: 11th October, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This judgment shall dispose of Criminal Quashment No.3
of 2008 filed by the petitioner against the order dated 6th May 2008, passed by Chairman Drug
Court, Balochistan, Quetta, whereby application filed by the petitioner/accused under section
249-A read with section 265 -K, Cr.P.C. has been rejected.
2. Facts of the prosecution case are that as per complain t dated 14th July 2004 Drug Inspector
visited Messrs Labco Trading Corporation, Natha Singh Street, Quetta and from proprietor
Muhammad Shamim Khan, capsule Ronuvit bearing Batch No.03 E04 allegedly supplied vide
invoice No.70290 dated 8th June 2004 by Mes srs Chas -A Mendoza was taken into possession.
Subsequently on the request of Drug Inspector, the Company supplied method of test and
analysis to Karachi Central Drug Laboratory and on 18th April 2005 Central Drug Laboratory
Karachi declared the drug as mis branded and substandard and subsequently the Board granted
sanction for the prosecution.
3. At the trial before Drug Court, Balochistan, Quetta, the petitioners/accused submitted an
application under section 265 -K, Cr.P.C., which was rejected vide order impugned by the
Chairman Drug Court, where after, the petitioners/accused approached this court through instant
petition under section 561 -A, Cr.P.C. seeking quashment of the complaint/proceedings pending
before Drugs Court, Balochistan, Quetta.
4. Mr. M unir Ahmed Bhatti, Advocate, learned counsel for the petitioners/accused assisted by
Mr. Nadeem Ahmed Khan, Advocate argued that without prosecuting the Company an employee
cannot be prosecuted, the report of analysis was not submitted within sixty days an d section
22(2) of Drugs Act, 1976 has been violated, samples have not been drawn according to the
prescribed procedure, the protocol of the test applied has not been mentioned in the report, the
court was not properly constituted, as only Chairman has rej ected the application without the two
Members and the order impugned is a non -speaking order. Learned counsel emphatically argued
that there is no probability of the conviction of the petitioners/accused and further proceeding
with the trial will be an ex ercise in futility.
5. On the other hand Mr. Atiq Ahmed Khan, learned Additional Prosecutor -General contested
the petition on the grounds that the points raised by the counsel for the petitioners/accused
require appreciation of evidence, which is yet to be recorded at the trial. It was further argued
that the petition is pre -mature and the trial court has rightly rejected the application.
6. After hearing arguments of the learned counsel for the parties, we have carefully perused the
record of the case. Record reflects that the Company Messrs Chas -A Mendoza has not been
prosecuted through its Directors/partners and only two employees of the Company i.e. Quality
Control Incharge and Warrantor have been prosecuted. Without prosecuting the company the
emplo yees of a company cannot be held liable for any offence under the Drugs Act, 1976 with
regard to a drug manufactured by the Company. In this regard reliance is placed on the case of
Qassim Shah v. The State, PLD 1991 SC 893, wherein it has been held as fol lows: --
"A perusal of the two sections would show that the opening words and effect of the first part of
two sections is the same. The only difference between the two sections is that under the old
section 38 the burden to prove the existence of knowledg e or consent on the part of the directors
or employees of the company was on the prosecution but under section 34 of the new Act, if the
company is found guilty of the offence then the burden is on the directors or the employees of
the company. Therefore, a finding that the company is guilty of the offence is sine qua non to
convict the directors or employees of the company that they are guilty of the offence. But, if the
company is not before the court then no adverse finding can be given against the compa ny. In
such a situation the directors or employees could not be held vicariously liable. Therefore, non -
prosecution of the company itself was fatal."
7. Further, the sample of the drug, drawn according to the procedure provided under section 19
of the Dr ugs Act, 1976, was received by the Central Drugs Laboratory Karachi on 21th July
2004 and on 18th April 2005 the Central Drugs Laboratory Karachi issued certificate of
test/analysis stating therein that the Vitamin -C content was determined as 77.48 mg per capsule
instead of the stated amount of 150.0 mg and according to the manufacturer limit it should not be
less than 85%, but same was found to be 51.65% and further it was remarked that the label does
not bear the reference of the specifications, the addre ss of the principal place of business of the
manufacturer and variation in batch number and outer label is misleading and it was reported that
the drug is substandard and misbranded.
8. According to section 22(2) of the Drugs Act, 1976 the Government Ana lyst, as far as may be,
shall submit the report to whom a sample of any drug has been submitted for test and analysis,
within sixty days of the receipt by him of the sample of the drug and, if he is not able to do so for
reasons beyond his control he shall communicate the reasons to the Inspector in writing and shall
endorse its copy to the Central Licensing Board or to the Registration Board or to the Provincial
Quality Control Board, who shall have the sample tested from any other Government Analyst or
a Government Drug Testing Laboratory or any other Laboratory. In the instant case admittedly
the report has been submitted after nine months and four days in violation of section 22(2) of the
Drugs Act, 1976 and no reason has been communicated to the Drugs I nspector in writing by the
Government Analyst, nor any such reason has been endorsed to the Provincial Quality Control
Board.
According to Maxim "A communi observantia non est recedendum" i.e. "where a thing is
provided to be done in a particular manner it has to be done in that manner and if not so done,
same would not be lawful". Since, mandatory provision of law i.e. section 22(2) of the Drugs
Act, 1976 has been violated and on the basis of such delayed test report no conviction can be
awarded. Referen ce in this regard is made to the case of W. Woodwards (Pakistan) Ltd. v. State
1985 PCr.LJ 2064 and the case of Faqih Alam v. State PLD 1998 Karachi 268.
9. It has further been observed that in the certificate of test/analysis dated 18th April, 2005 issu ed
by Central Drugs Laboratory Karachi, no protocol of the test applied has been mentioned. It is a
mandatory requirement that the report of analyst should be conclusive and must disclose the tests
applied under Rule 16 of the Drugs (Federal Inspectors, Fe deral Drug Laboratory, Federal
Government Analysts) Rules, 1976. The provisions with regard to the disclosure of full protocols
of the test applied have to be strictly construed in view of the fact that the report of Drug Testing
Laboratory being conclusiv e entails serious consequences affecting substantial rights of a person.
Reference in this regard is made to the case of Nawab Sons Laboratories (Pvt.) Ltd. v.
Government of Punjab, PLD 2003 Lahore 115.
10. It has further been observed that the Drugs Cou rt Balochistan at the time of passing the order
impugned was not properly constituted. Under section 31(2) of the Drugs Act, 1976, a Drug
Court shall consist of a Chairman and two Members, who in the opinion of the Federal
Government are Experts in the Med ical or Pharmaceutical fields. It has been provided that for
deciding applications of bail etc. the Chairman and any one Member shall constitute full Quorum
of a Drug Court. In the instant case the impugned order has been passed/signed by the Chairman
and not by any other Member of the Drug Court, meaning thereby that the Quorum was not
complete and the learned Chairman Drug Court Balochistan, Quetta singly passed the order
impugned without any lawful authority due to lack of the quorum.
11. Careful perus al of the order impugned reveals that same is a non speaking order and the
grounds agitated by the petitioners/accused in their application under section 249 -A read with
section 265 -K, Cr.P.C. have not been attended/ discussed, nor the Chairman of the Drug Court,
Balochistan, Quetta has considered the above referred provisions of the Drugs Act, 1976 and the
Rules framed there under.
12. In view of what has been discussed above, we are of the view that if trial is proceeded further
and evidence is recorde d, even then there is no probability of the conviction of the
petitioners/accused in the circumstances mentioned hereinabove. The provisions of sections 249 -
A, Cr.P.C, and 265 -K, Cr.P.C. are co -extensive with similar powers of this Court under section
561-A, Cr.P.C. and nothing is deemed to prevent a court from acquitting an accused at any stage
of the case, if after hearing the prosecutor and the accused and for the reasons to be recorded, it
considers that there is no probability of the accused being conv icted of any offence.
For the above reasons, the petition is accepted. The order impugned dated 6th May 2008, passed
by Chairman Drug Court, Balochistan, Quetta, is set aside and the proceedings pending before
the Drug Court, Balochistan, Quetta in Compl aint No.5 of 2007 against the petitioners/accused
are quashed and the petitioners/accused Muhammad Jamil, Quality Control Incharge, Messrs
Chas -A Mendoza and Nazar Muhammad, Warrantor Messrs Chas -A Mendoza, stand acquitted
under section 23(i)(a)(iv)(v) of Drugs Act, 1976 punishable under section 27(4)(6) of Drugs Act,
1976.
H.B.T./154/Q Petition accepted.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,
let us know.