SHAHID SIDDIQUE and anothers vs THE STATE

' MUHAMMAD ANWAARUL HAQ, J.---This Criminal Appeal has been preferred by the appellants Shahid Siddique and Muhammad Siddique, who were tried by the Drug Court, Lahore for the offence under sections 23(1)(a)(iii)(vi)(vii)(x), 23(1)(c), 23(1)(i) of the Drugs Act, 1976, punishable under section 27 of the Drugs Act, 1976, with the allegation that Muhammad Jamil, Drug Inspector, Sialkot inspected the premises of. Messrs Sohail Drug House, Abbot Road, Sialkot, in the presence of Shahid Siddique salesman (appellant No,1) and he seized some drugs on Form No,5 (Exh.PB); the reasons of said seizure mentioned in Exh.PB are (i) unregistered drugs (ii) medicines kept at higher temperature (iii) expired medicines (iv) misbranded medicines (v) medicines without warranty (vi) non-availability of sale purchase record of drugs and (vii) absence of qualified person. Drug Inspector referred the case to the Provincial Quality Control Board for keeping the seized drugs in custody and for prosecution of the accused. The Board served a show-cause notice to the accused persons and thereafter, permission for prosecution was accorded to the Drug Inspector for institution of the complaint in the Drug Court, hence the complaint was filed by Muhammad Jamil, Drug Inspector, Sialkot against the accused.

2. The prosecution examined two witnesses. P.W.1 is the complainant Muhammad Jamil, Drug Inspector and P.W.2 is Abdul Rashid, Junior Clerk, D.H.O Office, Sialkot. 'In their statement under section 342, Cr.P.C., the accused/appellants have admitted the presence of Shahid Siddique as salesman at Sohail Drug Store, Abbot Road, Sialkot, when Muhammad Jamil Drug Inspector inspected the said medical store and they have also admitted the seizure of medicines from the medical store, however, they denied the recovery of Viagra tablets (Exh.Pl and. Exh.P2) from the medical store stating that these were brought by one Ghulam Nabi, a friend of Shahid Siddique, from United States where he is living and he was showing the same to him when the Drug Inspector reached there and he snatched the said medicine from Ghulam Nabi. They have further denied the other allegations regarding the medicines kept at higher temperature, expired medicines, misbranded medicines and the medicines without warranty stating that all the medicines were kept in order. Regarding the accused/appellant Muhammad Siddique (proprietor of the medical store) and the qualified Person namely Ali Asghar Matti,' the defence version was that they had gone to say prayer when the Drug Inspector came to inspect the store. However, after conclusion of trial, the learned Drug Court, vide its judgment dated 28-11-2001, has convicted the appellants as under:--

(i) Three Years' R.I. under section 27(1) of the Drugs Act, 1976 with a fine of Rs,10,000 each.

(ii) One Year's R.I. under section 27(4) of the Drugs Act, 1976 with a fine of Rs,5,000 each and in default of payment of'fine to further undergo six months' S.I. Each.

' Both the sentences were ordered to run concurrently and benefit of section 382(b), Cr.P.C.. Was given to the appellants.

3. Learned counsel for the appellants contends that as far as the offence punishable under section 27(1) of the Drugs Act, 1976 is concerned, there is ample evidence available on record to prove that the drugs at Serial Nos.1 and 2 i,e, Viagra tablets were not taken into possession from the appellants rather the defence plea taken by the appellants in this regard is more plausible and is supported by the documentary evidence that the same was taken from the possession of one Ghulam Nabi, friend of appellant No,1 present in the medical store, who was showing the said tablets to appellant No,1, that the prescription (Mark-A) available on record reflects that these medicines were prescribed to said Ghulam Nabi by the doctor; that there is contradiction in the statements of P.W.1 and P.W.2 regarding the presence of Ghulam Nabi in the medical store at the relevant time, which creates serious doubt about the application of section 27(1) of the Drugs Act, 1976, therefore, to this extent the prosecution has failed to prove its case beyond any shadow of doubt. Learned counsel, however, does not oppose the conviction of the appellants under section 27(4) of the Drugs Act, 1976 and requests that with the afflux of 12 years time, the sentence of the appellants may be reduced to the period already undergone by them i,e, more than one month.

4. On the other hand, learned Deputy District Public Prosecutor opposing this appeal contends that Mark-A is totally a fake and doubtful document as the month of issuance of prescription on the same has been erased and even the potency value of Viagra tablets is also not visible which apparently has also been erased from the prescription Mark-A with an attempt to save the skin of the appellants; that there is ample evidence available on record to prove the guilt of the appellants; that even if there is contradiction in the statements of P.W.1 and P.W.2 regarding the presence of Ghulam Nabi in the medical store at the time of inspection yet the remaining part of the raid has been admitted and proved against the appellants; that offence against the appellants is .Heinous in its nature, therefore, they are not entitled for any leniency.

5. Arguments heard. Record perused.

6. For the offence punishable under section 27(1) of the Drugs Act, 1976 regarding the drugs at serial Nos.1 and 2 i,e, Viagra Tablets, the plea of the appellants is that these were not recovered from their possession rather the same were taken from the possession of one Ghulam Nabi, friend of appellant No,1 present in the medical store, who was showing the said tablets to appellant No,1 and that the prescription (Mark-A) available on record reflects that these medicines were prescribed to said Ghulam Nabi by Dr. Jiminez V. K, and affidavit of said Ghulam Nabi in this regard is also available on record as Mark-B. In his statement, P.W.1 Muhammad Jamil Drug Inspector has totally denied the presence of Ghulam Nabi in the medical store, whereas P.W.2 Abdul Rashid in his cross- examination has categorically admitted that Ghulam Nabi was present in the medical store at the time of raid. Keeping in view this glaring dontradiction in the statements of P.W.1 and P.W.2 regarding the presence of Ghulam Nabi at the medical store at the time of raid, we are of the considered view that charge against the appellants under section 27(1) of the Drugs Act, 1976 is doubtful, therefore, they are acquitted of the said charge.

7. As far as charge under section 27(4) of the Drugs Act, 1976 is concerned, we find that the prosecution has succeeded in proving the allegations against the appellants. Therefore, we are of the view that conviction of the appellants under section 27(4) of the Drugs Act, 1976 by the learned trial Court is based upon well-settled principles of appreciation of evidence and we do not find any reason to interfere with the same. However, keeping in view the intervening period of 12 years in fixation of this appeal and age of appellant No,2 Muhammad Siddique i,e, more than 90 years, upholding of sentence awarded to the appellants is not justified. Therefore, we reduce the sentence of one year awarded to the appellants under section 27(4) of the Drugs Act, 1976 to the sentence already undergone by them. However, the sentence of fine and in default thereof six months' S.I. Shall remain intact. With this modification in the quantum of sentence, this criminal appeal stands disposed of Appellants are on bail after the payment of fine; their bail bonds shall be considered discharged.