HAMID HASNAIN Versus GOVERNMENT OF PAKISTAN

1. SAEEDUZZAMAN SIDDIQUI, J.‑‑ The petitioner has challenged the orders passed by respondents Nos. l to 3 dated 16‑3‑1988, 24‑8‑1987 and 25‑6‑1987 respectively. The petitioner who is carrying on business of import and export under the name and style of M/s. H . H . & Sons, was granted Import Licence No.t1‑939134 dated 23‑9‑1986 for import of Homoeopathic and Biochemic Medicines falling under item No. 34 of the Free List of the Import Policy for the year 1986‑87 which correspondant to I.T.C. Classification No.30.03 C & D. The petitioner imported 345 cartons of a medicine known as 'Aletris Cordial' against the above Import licence. The consignment of 'Aletris Cordial' arrived at Karachi Port in or about October, 1986 and on 26‑1i‑1986 the petitioner filed a Bill of Entry for its clearance for Home Consumption. Respondent No.3 however, refused to allow clearance of the above consignment on the ground that by public notice No.12/83 dated 22‑5‑1983 import of 'Aletris Cordial' has been banned and accordingly ordered confiscation of the consignment for contravention of the provisions of Customs Act. The petitioner filed appeal against the order of respondent No.3 before respondent No.2 which was dismissed by order dated 24‑9‑1987. A Revision Application filed against the above order of respondent No.2 before respondent No.l also met the same fate when it was rejected on 16‑3‑1988. The petitioner has challenged the above orders of respondents Nos.l to 3 in the above petition. It is contended by the learned counsel for the petitioner that ' Aletris Cordial' imported by the petitioner is a Homoeopathic drug as all the three active ingredients of the medicines homoeopathic substance and are mentioned as such in the Pakistan Homoeopathic Pharmacopoeia, (1978). It is also contended by the learned counsel for the petitioner that the question whether 'Aletris Cordial' imported by the petitioner is or is not a Homoeophathic medicine stands concluded by the decision of Director General of Health, Government of Pakistan dated 22‑12‑1982 in the case. of National Indent Corporation of Karachi wherein after detailed examination of the ingredients of 'Aletris Cordial' it was found that the active ingredients of the drug are included in the Pakistan Homoeophatic Pharmacopoeia, 1978, and as such it was not an Allopathic drug as defined in the Drugs Act, 1976. It is further contended by the learned counsel for the petitioner that on a request made by another importer, M/s. M.R. Zaki & Sons the Ministry of Commerce by letter dated 31‑8‑1987 with reference to the import status of Homoeopathic product 'Aletris Cordial', clarified that according to the provisions of current policy of import of drugs and medicines (allopathic) are importable strictly accordingly to Pakistan National Formulary published under Drugs Act, 1976, but narcotic and psychotropic substances and Unani, Ayurvedic or other oriental type medicines and medicated wines are not allowed to be imported in the country. However, any other medicines which do not fall under the aforesaid categories are freely importable. On the above premises, it is contended by the learned counsel for the petitioner that the confiscation of the above consignment of the petitioner was wholly without jurisdiction and without lawful authority.

2. Mr. Kamal Mansoor Alam the learned counsel for the respondents on the other hand, filed counter‑affidavit on behalf of respondents and contended on the basis of documents filed by the respondents that the import of 'Aletris Cordial' is not permissible as a Homoeopathic medicine. The learned counsel for the department specifically relied on the letter dated 28‑3‑1983 issued by Central Board of Revenue in connection with the import of 'Aletris Cordial', letter dated 18‑11‑1981 written by the respondent No.2 to Director General Health for a clarification with regard to the status of drug 'Aletris Cordial', letter dated 18‑1‑1982 written by the Assistant Drug Controller to the Collector of Customs with the opinion that drug 'Aletris Cordial' is not a Homoeopathic medicine and, therefore, it is recommended that its import may not be allowed; letter dated 20‑3‑1982 written by the Assistant Drug Controller reiterating the opinion expressed in letter dated 18‑1‑1982, letter dated 29‑11‑1982 addressed by the Assistant Drug Controller to Collector of Customs, Karachi, expressing the opinion that the drug 'Aletris Cordial' is not a Homoeopathic or biochemic drug and finally the letter dated 10‑9‑1981 written by the Board of Homoeopathic System of Medicine, Pakistan, Karachi, addressed to M/s. National Indent Corporation regarding the status of medicine 'Aletris Cordial' with the opinion that it is nova biochemic medicine. On the basis of above documents the learned counsel for the department contended before us that there was sufficient material available before respondents to reach the conclusion that 'Aletris Cordial' imported by the petitioner is neither a Biochemic nor a Homoeopathic medicine and therefore, it has been rightly confiscated as the import of this medicine amounted to contravention of the provisions of the Customs Act, 1969.

3. After hearing the learned counsel for the parties at length we are of the view that orders passed by the respondents cannot be sustained in law. It appears from the record that the dispute regarding status of medicine 'Aletris Cordial' imported by the petitioner is going on before the Customs Authorities for quite some time. . The first document which referred to this controversy is the letter dated 10‑9‑1981 which is the opinion expressed by the Board of Homoeopathic System of Medicine in Pakistan, at Karachi, on a reference made to it by the National Indent Corporation of Karachi as well as Assistant Collector of Customs. The document is one of those which is heavily relied upon by the learned counsel for the department in support of the contention that 'Aletris Cordial' is not a Homoeopathic medicine. It will be useful to reproduce here the contents of the above letter which is as follows:

4. To

5. M/s. National Indent Corporation,

6. Opp: Parsi Temples,

7. Stranchan Road,

8. Karachi.

9. Sub.: (RIO ALTERIS CORDIAL BIOCHEMIC HOMOEOPATHIC & BIOCHEMIC)

10. Dear Sir,

11. With reference to your letter dated 2nd September, 1981. I am directed to inform you that the product in question is not a Biochemic Medicine and it has been wrongly labelled as such. All Biochemic Medicines are tissue salts and are drawn from mineral kingdom whereas your product Alteris Cordial belongs to vegetable kingdom. It is, therefore, regretted that the certificate demanded by you cannot be granted. In your own interest you are advised to procure a copy of Pakistan Homoeopathic Pharmacopoeia which is an official and legal document (available from this office on payment) and arrange your imports and business accordingly.

12. Yours faithfully,

13. Sd/-

14. Acting Registrar,

15. BOARD OF HOMOEOPATHIC SYSTEM OF MEDICINE.

16. Copy to: ‑

17. The Assistant Collector of Customs, Appraisement GR‑1, with reference to your letter No.SI/Misc/1210/81‑I. dated 30 th September, 1981.

18. Sd /

19. ACTING REGISTRAR."

20. A ‑careful reading of the above letter will show that the Board of Homoeopathic System of Medicine did not express that the medicine (Aletris Cordial) referred to them for opinion did not fall in the category of Homoeopathic medicines. All that the above letter states is that on examination it has been found that the medicine 'Aletris Cordial' is not a Biochemic medicine and as such it has been wrongly labelled so. It is quite obvious from the contents of the above letter that ' Aletris Cordial' was held to be excluded from the group of Biochemic medicine as it was found to have been derived from vegetable, while Biochemic medicines are tissue salt which are drawn from Mineral. It is further evident from the above letter that the addressee was advised to consult Pakistan Homoeopathic Pharmacopoeia before arranging import of any medicine. This document, therefore, in our opinion, cannot be said to have held that 'Aletris Cordial' is not a Homoeopathic Medicine. The next document is the reply dated 18‑1‑1982 to the letter dated 18‑11‑1981 written by the Collector of Customs to the Director General Health. It reads as follows:‑

21. "No. F.3‑9/76 I&E

22. Government of Pakistan

23. Ministry of Health & Social Welfare,

24. (HEALTH DIVISION)

25. The Collector of Customs Islamabad, the 18th

26. (Mr. Ataullah Khan), January, 1982.

27. Customs House,

28. Karachi.

29. Sub : IMPORT OF ALETRIS CORDIAL AS BIOCHEMIC/HOMOEOPAT HIC

30. MEDICINE. '

31. Sir,

32. I am directed to refer to your letter No‑SI/Misc/1210‑81‑1 dated 18‑11‑1981 on the subject cited above and to confirm that Aletris Cordial is neither a biochemic nor a Homoeopathic medicine. In the past this was however. included under classification as a drug. It is. therefore. recommended that its import may not be allowed‑ This Ministry may kindly be apprised of the actinn taken in the matter

33. Yours obedient servant,

34. Sd/‑

35. (KHADIM HUSSAIN)

ASSISTANT DRUGS CONTROLLER"

36. A reading of the above letter will show that Assistant Drug Controller without disclosing any reason or basis for holding that 'Aletris Cordial' is neither a 'Biochemic' nor a 'Homoeopathio' medicine, recommended to respondent No.2 that its import may not he allowed. The third document is the letter dated ?n‑3‑1982 addressed by the Assistant Drug Controller to respondent No. 3 inviting his attention to the earlier letter dated 18‑1‑1982 on the subject. The fourth document relied by respondent is another letter of Assistant Drug Controller dated 29‑11‑1982 addressed to respondent No.2 which reads as follows:‑

37. "No.F.3‑9/76‑I&E

38. Government of Pakistan

39. Ministry of Health and Social Welfare

40. (HEALTH DIVISION)

41. Islamabad the 29th November, 1982

42. The Collector of Customs,

43. (Mr. M. Anwar Ali, Appraisement)

44. Customs House,

45. Karachi.

46. Sub IMPORT OF ALETRIS CORDIAL AS BIOCHEMIC/HOMOEOPATHIC

47. MEDICINE .

48. Sir,

49. I am directed to refer to your letter No.SI/Misc/1210/82‑1 dated 19th May, 1982 on the subject cited above and to say that although the ingredients of the said item are included in the Homoeopathic Pharmacopoeia yet the preparation itself is not a homoeopathic or biochemic medicine. It is also not covered under the definition of drug.

50. Yours Obedient Servant,

51. Sd/‑

52. (KHADIM HUSSAIN),

53. ASSISTANT DRUGS CONTROLLER."

54. The above letter was also written by the Assistant Drugs Controller to respondent No.2 with reference to respondent No.2's letter dated 19‑5‑1982. It is stated in the above letter that although the ingredients of 'Aletris Cordial' are included in the Homeopathic Pharmacopoeia yet the preparation itself is not a homoeopathic or biochemic medicine. Once again no reason or basis was disclosed in the above letter for holding that 'Aletris Cordial' was not a homoeopathic medicine although admittedly the medicine contained ingredients which are included in the Homoeopathic Pharmacopoeia. The last documents relied on by the respondents in support of their contentions is the letter dated 26‑3‑1983 addressed by the Second Secretary of Central Board of Revenue to respondent No.2 with reference to latter's letter dated 1‑2‑1983 on the subject of import of 'Aletris Cordial' by the National Indent Corporation. This letter is merely reproduction of the contents of the letter of Health Division dated 29‑11‑1982 and in the light of the opinion of Health Division respondent No.2 was advised that 'Aletris Cordial' was not a biochemic or homoeopathic medicine and as such it does not fall under the definition of 'Drug'. A careful reading of the documents relied by respondents will show that although it was admitted I in these documents that 'Aletris Cordial' contained ingredients which are mentioned in Homoeopathic Pharmacopoeia but it was opined that it is neither a biochemic nor a homoeopathic medicine. No reasons are however, disclosed for not treating the medicine in the category of Homoeopathic medicines. The learned counsel for the respondents was also unable to place before us any reasoning which could justify the above conclusion of respondents.

55. As against the above material produced by respondents the petitioner has placed on record before us a certificate issued by the manufacturer showing the method of preparation of drug 'Aletris Cordial' which reads as follows:‑

56. "Letap Pharmaceuticals Ltd.

57. Celtic House, 17‑19 Grove Vale.

58. Dulwich, London SE22 8EQ, England

59. Your Ref. Our Ref: MRZS/AC‑88 dated 12th February, 1988.

METHOD OF MANUFACTURE

ALETRIS CORDIAL

60. Aletris cordial is letaps trade name of a mixture of mother Tinctures (0) with drug potency 3 x mixed in equal proportions and diluted with dispensing alcohol. The formulation is based on the prescribed rules contained in the British Homoeopathic Pharmacopoeia

PROCESS

ALETRIS FARINOSA

61. Natural Order: =Haemodoraceae.

62. The fresh root is used. The moist magma containing solid is weighed, and pounded to pulp. 5 times its weight of Alcohol is poured over it. The mixture is left for 15 days to be shaken twice a day. Afterwards it is filtered. The MotherTincture. thus obtained has a drug potency of 1/10 = 1 x.

63. One part of the 1 x dilution (o) and 9 parts of dilute alcohol gives 10 parts of 2 x dilution. One part of the 2 x dilution and 9 parts of dispensing alcohol gives 10 parts of 3 x dilution.

HELONIAS DIOICA

64. Natural Order: Liliaceae

65. The same process is applied as that of Aletris Farinosa.

66. SCROPHULARIA NODOSA :

67. In this the whole fresh plant is used. The process for producing Mother Tincture is the same as for Aletris Farinosa except that the dilution of alcohol differs at the time of preparing the 2x dilution. The 3 x dilution of the three Mother Tinctures are taken in equal parts and 200 ml. are filled in an amber glass bottle labelled as ALETRIS CORDIAL. The percentage of Alcohol in this mixture is determined at 28 $ by volume. MEDICATIONS in all the three cases of Active Constituents are prescribed to be 3 x or higher.

68. PRESENTATION= 200 ml. bot.

69. INDICATIONS AND DOSAGE= See label on bot.

70. Sd/

71. B. V. EDMONDSON

72. CONTROL & PRODUCTION

73. LETAP PHARMACEUTICALS LTD:"

74. A reading of the above. certificate by the manufacturer will show that the drug 'Aletris Cordial' is obtained by mixing the Mother Tinctures of ALETRIS FARINOSA, HELONIAS DIOICA and SCROPHULARIA NODOSA in equal proportions. It is also clear from the above document that while preparing the mother tinctures of each constituent of the drug (Aletris Cordial) alcohol is used as a B base material with the result the percentage of alcohol in the final mixture (Aletris Cordial) is determined at 28$ by volume. However, according to Certificate the active ingredients of drug (Aletris Cordial) are only ALETRIS FARINOSA, HELONIAS DIOICA and SCROPHULARIA here, concerned with the correct classification of the item imported by the petitioner in accordance with the heading of Pakistan Custom Tariff. The question involved before us in the case is, therefore, one of classification of an item under appropriate heading of PCT. Such disputes can appropriately be decided by this Court in exercise of its jurisdiction under Article 199 of the Constitution and if any reference is needed, the case of Asim Food Industries Ltd. v. Pakistan 1985 SCMR 1753 may be referred. In the above‑cited case the petitioner imported 'liquid glucose' which on earlier occasions was treated by the Custom Department as falling under heading No.17.02‑A of PCT. However, when the disputed consignment arrived ,it was classified under heading No.17.02‑B and charged to Custom Duty accordingly. The decision of Customs Authority was challenged first, before the High Court and finally before the Supreme Court. The classification of liquid glucose under Heading No. 17.02‑B of PCT was justified both before the High Court as well as Supreme Court by the Department on the basis of expert analysis of a chemical substance. The Supreme Court after considering the divergent reports of two chemical experts finally held that liquid glucose imported by the petitioner in that case was classifiable under Heading No.17.02‑A. It will thus be seen, that whenever, dispute regarding correct classification of an item under a particular heading of Pakistan Custom Tariff arises before a Court under .Article 199 of the Constitution, and enough material is available on record to resolve such dispute, the Court has invariably decided such controversy, even though, in such process, it has to[ consider some of the factual aspects of the case. In our humble view the Court while deciding a controversy relating to classification of an E item under Customs Tariff is not deciding any disputed issue o~ facts but is interpreting the entry in the Custom Tariff with a view to fix its correct classification under appropriate heading of the Pakistan Custom Tariff, which is the legitimate function of this Court under Article 199 of the Constitution. In the above perspective, w~ are of the view that the case‑law cited by the learned counsel for the respondents is not relevant to the issue before us.

75. We accordingly accept the above petition and declare the orders passed by respondents Nos. 1 to 3 without lawful authority and of no legal effect. We further declare that 'Aletris Cordial' imported by the petitioner fall under Item No.34 of the relevant Import Policy and PCT heading No.30.03‑D and direct the respondent to release the consignment accordingly. There will, however, be no order as to ‑costs.

76. A . A . / H‑128/ K Petition allowed