NAZIR AHMAD Versus State
This criminal appeal challenges the judgment of the Drug Court convicting and sentencing the appellant under Section 27(1)(a) and (b) of the Drugs Act, 1976. The core legal question was whether the prosecution successfully established that the appellant manufactured, stocked, or sold an unregistered or spurious drug containing allopathic ingredients. The Lahore High Court held that the prosecution failed to prove its case beyond a shadow of doubt, as the Government Analyst's report did not state that the detected vitamins were exclusively allopathic rather than herbal or homeopathic, and there was no evidence that the appellant manufactured the recovered medicine or kept it for sale given the meager quantity. The court laid down the principle that mere presence of ingredients that can overlap between herbal, homeopathic, and allopathic systems, without conclusive expert proof of exclusivity or manufacture/stocking for sale, cannot sustain a conviction under the Drugs Act.
- Whether a conviction under the Drugs Act can be sustained when the Government Analyst report fails to establish that the detected ingredients are exclusively allopathic?
- Does the recovery of a meager quantity of medicine from a practitioner' suffice to prove stocking or manufacturing for sale?
- Can overlap of ingredients between herbal, homeopathic, and allopathic pharmacopeias form the sole basis for a criminal conviction without expert proof?
- Section 23, Drugs Act 1976
- Section 27, Drugs Act 1976
- Section 27(1)(a), Drugs Act 1976
- Section 27(1)(b), Drugs Act 1976
- Section 342, Code of Criminal Procedure 1898
FAROOQ HAIDER, J.---- This appeal has been filed against the judgment dated 14.04.2015 passed by District and Sessions Judge/Chairman Drug Court, Bahawalpur Division, Bahawalpur, whereby in complaint under Sections 23/27 of Drug Act, 1976 (Ex.PO), the learned trial Court has convicted and sentenced the appellant under Section 27(1)(a) of the Drugs Act, 1976 to 02 years R.I with fine of Rs.50,000/- and in default of payment thereof the appellant was directed to further undergo S.I for 02 months and under Section 27(1)(b) of the Drugs Act, 1976 to 02 years R.I with fine of Rs.50,000/- and in default of payment thereof the appellant was directed to further undergo S.I for 02 months. Both the sentences were ordered to run concurrently.
2. Briefly, the accusation levelled in the complaint (Ex.PO) against the appellant, is that on 28.10.2008 at about 12:30 p.m., Maqbool Hussain, Drug Inspector, Rahimyar Khan inspected the business premises of the appellant called as M/s Kamran Herbal Pharma (Regd), Lahore situated in Street No.3, Chak No.111/P East, Rahimyar Khan and took into possession sample of Syrup Multi Plus 120 ml Batch No.0025 Registration No.041826 manufactured by M/s Kikon International Photo Laboratories, Lahore vide Form-4 (Ex.PA) for test/analysis on suspicion having allopathic ingredients; the said sample was sent to Drugs Testing Laboratory, Lahore through Form-6 (Ex.PB) and said laboratory vide its report Ex.PG declared that sample containing Vitamin B1, B2, Niacinamide and Vitamin C; thereafter the Drug Inspector forwarded the matter to the Provincial Quality Control Board, Lahore which, after affording personal hearing to the appellant, granted permission for prosecuting the appellant for manufacturing, stocking/selling unregistered, spurious drugs.
After observing codal formalities, charge was framed against him, to which he pleaded not guilty and claimed trial; prosecution produced its evidence. Then learned trial Court recorded statement of the appellant under Section 342, Cr.P.C., wherein he negated the case of prosecution. Thereafter, learned trial court after hearing learned counsel for the parties passed the impugned judgment, whereby the appellant was convicted and sentenced as mentioned above.
3. Learned counsel for the appellant has contended that conviction recorded and sentence awarded through the impugned judgment are against the law and facts of the case; learned trial Court could not appreciate material available on the record; impugned judgment is result of misreading and non-reading of evidence; therefore, the same is liable to be set aside.
4. Conversely learned law officer has vehemently controverted the contentions raised by the learned counsel for the appellants and supported the impugned judgment.
5. Arguments heard. Record perused.
6. After careful scrutiny of record, it has been noticed that neither it is case of prosecution nor it has been established that allegedly recovered medicine i.e. Multi Plus 120ml was substandard, spurious, adulterated or prohibited rather it was the case of prosecution that same was having allopathic ingredients and found available in the shop of the appellant i.e. M/s Kamran Herbal Pharma (Regd) Lahore situated at Galli No.3, Chak 111/P East, Rahimyar Khan, who was not a Allopathic Doctor rather he was a qualified diploma holder of Homeopathy i.e. DHMS as well as Fazal Tibb-ul-Jarah. Furthermore, Form-4, itself got exhibited by the prosecution as Ex. PA showing details of syrup, reflects that five bottles of the said syrup were taken into possession by the Drugs Inspector from the Dawa Khana of the appellant with the following undertaking of the appellant: -
It will not be out of place to mention here that in Form-4 as well as in Form-6, the name of manufacturer of said syrup was mentioned as M/s Nikon International Photo Laboratories Lahore. Meaning thereby that appellant had not manufactured the said syrup. Although the prosecution has got produced letter dated 25th November 2008 issued by Government of Pakistan, Ministry of Health vide Mark 'B' showing that Drug Manufacturing License No.000582 was allotted to M/s International Pharma and not to M/s Nikon International Photo Laboratories and letter dated 18th December 2008 (Mark C) reflecting that Registration No.041826 is allotted to M/s Siza International, Ferozepur Road, Lahore for their product Torax Bronco Syrup but still the fact remains that prosecution has not produced an iota of evidence to establish that the syrup, which was taken into possession through Form-4, was manufactured by the appellant. Even otherwise, only very meager quantity i.e. five bottles of the syrup were found and recovered from the Dawa Khana of the appellant, as such, it could not be said that appellant was manufacturing the same or kept the same in his Dawa Khana for selling it rather it would be available there for own use of the appellant.
Moreover it was not mentioned in the report of Government Analyst Ex.PG that the sample of impugned medicine is adulterated, substandard, misbranded or spurious; it was also not mentioned therein that the ingredients found in the impugned syrup were exclusively allopathic and not natural, herbal or homeopathic, in this regard, relevant portion from the report Ex.PG is being reproduced for ready reference: -
"Description:
Orange liquid.
Identification:
Vitamins B1, B2, Niacinamide and Vitamin C identified
Result:
The sample contains the above ingredients i.e. Vitamins B1, B2, Niacinamide and Vitamin C
From the perusal of above said portion of report Ex.PG, it reveals that it has not been opined therein that above said ingredients have been registered in any Pharmacopeia as allopathic ingredients only. It will not be out of place to mention here that they are lot of ingredients, which are being used in allopathic, homeopathic and herbal products as well, in this regard Sterculia, Cinchona, Gentiana lutea and Natrum arsenicum can be referred advantageously, which are homeopathic/herbal ingredients but at the same time also recognized as allopathic ingredients by British Pharmacopeia, British Pharmaceutical Codex and United States Pharmacopeia. Even otherwise, the observation of the learned trial Court that as per report of Government Analyst, the seized/recovered Multi Plus Syrup contains vitamin B1, B2, Niacinamide and Vitamin C, which are allopathic ingredients, is totally contrary to the report Ex.PG as it was nowhere mentioned in the said report that said ingredients are exclusively allopathic ingredients.
8. In view of above, we have reached at the conclusion that prosecution in the instant case has been failed to prove its case against the appellant beyond shadow of doubt, therefore, there is no need to discuss defence version.
9. Resultantly, instant appeal is allowed, conviction and sentence recorded against the appellant through the impugned judgment dated 14.04.2015 are hereby set aside. The appellant is acquitted of the charge. The appellant is on bail as during pendency of this appeal, his sentence was suspended on 27.04.2015 by this Court, therefore, his surety stands discharged from his all liabilities.
SA/N-19/L Appeal allowed.