SHAH NAWAZ BHATTI and another vs PROVINCE OF PUNJAB through Secretary, Health Chairman Quality Control Board and others

ORDER

' MUHAMMAD AKHTAR SHABBIR, J.--- This petition for leave to appeal is directed against the order dated 9-6-2008 passed in Writ Petition No,6335 of 2008 filed by the petitioner calling in question order dated 22-4-2008 passed by the Drug Court.

2. Briefly stated that facts of the case are to the effect that the complainant/Dr. Basharat Ali purchased three injections of 'Clafron' 1 gm which were seized on Form No,4 by the Drug Inspector, Gujranwala Division from the said doctor with a specific noting "Aluminum Seal Tempered" on all the three injections. The three injections were reported 'spurious' by the Provincial Government Analyst Mr. Jamil Anwar, vide report No,TRA1424/DTL dated 6-2-2001. The report specifically stated that "Seal on the outer carton is not intact, Aluminum seal is not smooth, also having notable signs of tampering". The matter was referred to Provincial Quality Control Board who issued show-cause notice dated 23-5-2001 to the following persons:--

(i) Shah Nawaz Bhatti and M. Afzal (petitioners)

(ii) Maqbool Ahmad

(iii) Rustam Ali ' After affording opportunity of personal hearing to the aforesaid persons, the Board granted sanction for prosecution against Maqbool Ahmad and Rustam Ali.

3. Thereafter, the Drug Inspector filed the complaint dated 16-7-2001 against Rustam Ali and Maqbool Ahmad and the Drug Court took cognizance of the matter and framed charge sheet against the above two accused. The evidence of five prosecution witnesses was recorded including the evidence of Shah Nawaz Bhatti and Muhammad Afzal as P.W.4 and P.W.5. The Chairman Drug Court, taking a different view of the matter before recording the statement under section 342, Cr.P.C. Found the present petitioners, prima facie, responsible for commission of offence and issued noticed to them for appearance in the Court. The order of issuing process to the petitioners has been challenged by them through a Writ Petition No,6335 of 2008 in the Lahore High Court, Lahore, which was dismissed by the Court vide the impugned judgment, out of which the present petition for leave to appeal has arisen.

4. The learned counsel for the petitioners contended that the order passed by the High Court is against law and facts and the process against the petitioners has been issued in violation of the provisions of section 11 of the Drugs Act, 1976 and without sanctioning of the prosecution by the `Quality Control' Board, the petitioners have been summoned to face the charge in the Drug Court.

He lastly argued that no prosecution against the petitioners can be launched without permission of the Quality Control Board.

5. We have heard the arguments of the learned counsel for the petitioners and perused the record with his assistance.

6. Section 11(5)(b) of the Drugs Act, 1976 has empowered the Provincial Quality Control Board to scrutinize the reports of Provincial Inspectors in respect of contraventions of the Drugs Act and reports of the Government Analysts in respect of drugs sent to them by the Provincial Inspectors for test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports and on receipt of reports, the Inspector would make a complaint before the Drug Court.

7. The Drug Court shall consist of a person who is, or has been, or is qualified for appointment as, a Judge of a High Court, who shall be Chairman, and two members being persons who, in the opinion of the Federal Government, are experts in the medical or pharmaceutical fields. Section 31(4) of the Drugs Act contemplates that "a Drug Court shall have all the powers conferred by the Code of Criminal Procedure, 1898 (Act V of 1898), on a Court of Session exercising original jurisdiction". Subsection (6) of section 31 further envisages that "a Drug Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of summons cases by Magistrates" and this provision of law is in conformity with the powers under section 204, Cr.P.C.

Which empower the Court to take cognizance of an offence, if in the opinion of the Court, there is sufficient ground for proceedings in the case.

8. The Drug Court, in the case in hand, had assigned sufficient reasons for proceedings against present petitioners. The Drug Inspector reported the matter to the Provincial Quality Control Board, which had issued show cause notices to following persons:--

(i) Shahnawaz Bhatti son of Abdul Hamid and Muhammad Afzal son of Abdul Hamid (proprietor and partner of Messrs Bhatti Medical Store, respectively/present petitioners).

(ii) Maqbool Ahmed son of Muhammad Sadiq (employee of Basharat Hospital).

(iii) Rustam Ali son of Ghulam Rasool (Lab Technician of Messrs Hussain Laboratory).

9. The quality Control Board only sanctioned prosecution against two persons namely Maqbool Ahmed and Rustam Ali but did not assign reasons for not granting sanction against the petitioners.

After recording evidence, the Drug Court came to the conclusion that sufficient evidence was available against the petitioners from whom spurious injections were purchased by Dr. Basharat Ali, the complainant. The Court also issued notice to the Secretary Provincial Quality Control Board on 22-1-2008 for explaining position of the Board for not granting permission for prosecution of petitioners involved in the matter. From perusal of the record, it reveals that till 31-3-2008, the Quality Control Board had not replied the question under consideration by the Court. The restriction of granting of sanction for prosecution contained in the Drugs Act is synonymous with the provision contained in section 6 of the Prevention of Corruption Act, 1947 through the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958). The relevant portion of subsection (5) of section 6 is reproduced as under for further ready reference:-- "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act."

Such sanction shall be sufficient for prosecution under this Act and the Special Judge, Anti- Corruption has been empowered to try the scheduled offences under the law. The Special Judge, Anti-Corruption enjoys the powers of a Sessions Judge. Subsection (5) lays down previous sanction of the appropriate Governments like sanction by the Quality Control Board and such sanction shall be sufficient for prosecution of a public servant for an offence triable under the Act and it is provided that if no sanction is filed, the Special Judge shall address a letter to the Government concerned for this purpose but if sanction is neither received nor refused within 60 days of receipt of letter by the Government, such sanction shall be deemed to have been duly accorded. In this connection, it may be kept in mind that when no sanction is filed and even on request of the Special Judge it is not supplied, the Court of Special Judge shall have still to proceed with the case.

10. In the instant case, the Drug Court has asked the Quality Control Board, to explain as to why sanction against the petitioners was not granted when the Drug Inspector referred their case to the Board. Till 22-4-2008, the Quality Control Board could not supply any information or explanation to the Drug Court and in view of the vast powers conferred on the Drug Court under section 31(4) of the Drugs Act, it has rightly and validly issued process against the petitioners to face the charge against them.

11. The defect of not getting sanction against the petitioners was merely procedural in nature and would not vitiate the proceedings. Reference in this context can be placed to the case of Messrs. W.

Woodwards (Pakistan) Ltd. v. The State 1985 PCr.LJ 2064.

12. For what has been discussed above, we do not find any substance in this petition which is dismissed and leave to appeal refused.