MUHAMMAD IMRAN Versus State

ABDUL HAMEED BALOCH, J.--- This criminal appeal has been directed against the judgment dated 15th December, 2017 (impugned judgment), passed by learned Drug Court Balochistan, Quetta (trial court), whereby the appellant was convicted under section 23(1)(a)(vii), sections 27 and 34, Drugs Act, 1976 and sentenced to suffer rigorous imprisonment for one year with fine of Rs. 100,000/- and in default to further undergo one month's SI.

2. The facts as gleaned from the complaint are that on 4th September, 2015 the Drug Inspector District Quetta, Zone-D of the Quetta Division in the Province of Balochistan, inspected Messrs Saif Medical Store situated at the Prince Road, Quetta and took unregistered drugs on the Form No. 4 from the shelves of the Messrs Saif Medical Store for the purpose of test and analysis. The Drug Inspector sent the sample of the unregistered Astomeg Tablet, Batch No. TD-12. manufactured by the Messrs Sois Life Science to the Government Analyst i.e. the Drug Testing Laboratory (DTL) and the Government Analyst i.e. the Provincial Drug Testing Laboratory, Balochistan Quetta vide its report dated 19th September, 2015 declared the sample of the Astomeg Tablet unregistered quality within the meaning of section 7(1) of the Drugs Act, 1976. The Secretary Quality Control Board, issued show-cause notice to the Messrs G. Zee Health R.895 7D3, North Karachi and on 20th December, 2016 granted approval for sanction of the prosecution of the manufacturer and distributor of the unregistered Astomeg Tablet i.e. Messrs Sois Life Science and Messrs G. Zee Health and their distributor for commission of the manufacture of unregistered Astomeg Table containing the ingredients of allopathic drugs as envisaged by the provisions of section 23(1)(a)(vii) read with sections 27 and 34 of the Drugs Act, 1976 as such complaint was forwarded to the Drugs Court for proceeding in accordance with the relevant provisions of law.

3. That on receipt of complaint, the same was registered by the trial court and after completion of codal formalities on 4th July, 2017 charge under section 23 punishable under section 27 of the Drugs Act, 1976 was framed against the appellant and Zeeshan Ahmed, to which they pleaded not guilty and claimed trial. During trial the prosecution in order to establish its case produced only one witness i.e. the Drug Inspector Agha Amir Jan, while on the other hand the accused facing trial were examined under section 342, Cr.P.C. in which they once again categorically repudiated the prosecution allegation and claimed innocence by deposing that they have falsely been involved in the instant case and a false complaint has been filed against them. However the accused did not opt to record statement on oath or to produce any witness in defence.

4. After completion of trial arguments were heard by the trial court and vide impugned judgment acquitted Zeeshan Proprietor Messrs G. Zee Health R-895 Sector 7-D/3 North Karachi and convicted and sentenced the appellant in the manner as mentioned in para-1 above, hence the appellant is before this court.

5. Heard learned counsel for appellant and learned Assistant Attorney General as well as gone through the record. It appears from the record that on 4th September, 2015 Agha Amir Jan Drug Inspector visited Al-Sail Medical Store Prince Road, Quetta, took into possession Astomeg Tablet and sealed the same in parcel. Thereafter, the alleged tablet sent to Balochistan Drug Testing Laboratory (DTL) and on 19th September, 2015 the DTL Report was received. The complainant has sent the paper to Secretary Provincial Quality Control Board for permission to register case. PW-1 Agha Amir Jan appeared before the trial court and exhibited application dated 24th December, 2017 for prosecution vide Ex:P/1-B, check list dated 4th September, 2015 vide Ex:P/1-D, sealed parcel of sample dated 4th September, 2015 vide Ex: P/l-F, Certificate of Test or analysis of Provincial Drug Testing Laboratory Balochistan, Quetta received on 8th September, 2015 vide Ex: P/1-M and other letter. The referred documents were exhibited by PW-1, prepared, signed and sent to Laboratory by Drug Inspector Zone-F. PW-1 during cross-examination stated that:

"It is correct that today no notification in regard of Drug Inspector Zone D is available. Voluntarily stated I will produce the same on next date of hearing."

6. The learned counsel contended that the Drug Inspector was bound to produce the notification to the effect that at the time of seizure he was posted in relevant zone. The perusal of record transpires that no such notification was produced by PW-1. Subsequently Notification No. SO-V (H) 1-25/2011/9592-99 dated 10th December, 2015 was produced. It would be appropriate to reproduce the Notification:

NOTIFICATION

No. SO-V (H) 1-25/2011/9592-99. With prior approval of the Competent Authority the following Drug Inspectors (BPS-17) are hereby transferred/posted in the best interest of public with immediate effect and until further order:

S. No.

NAME AND DESIGNATION

FROM

TO

1.

Mr. Agha Amir Jan, Drug Inspector (BS-17)

Quetta Zone-D

All the revenue area of Gawalmandi Quetta

2.

Mr. Mohammad Siddiq, Drug Inspector (BS-17)

Quetta Zone-H

All the revenue area of Police Station Industrial Area Quetta

Noor-ul-Haq Baloch

Secretary Healdh"

7. It appears from the above referred notification that on 10th December, 2015, PW-1 Agha Amir Jan was transferred from Quetta Zone-D to all revenue area of Gawalmandi Quetta, meaning thereby that PW-1 prior to refer to notification was posted as Drug Inspector Zone-D, while all the documents prepared/signed by PW-1 as Drug Inspector Zone F, while he was not posted at Zone F. Section 17 of the Drugs Act, 1976 (The Act) is relevant which reads as under:

"17. Inspectors: The Federal Government or a Provincial government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors, or, as the case may be, Provincial Inspectors for the purpose of this Act within such local limits as it may assign to them respectively:

Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed:

Provided further that a person serving under the Federal Government or another Provincial government shall not be so appointed without the previous consent of such Government."

8. So far as the appointment of Drug Inspector is concerned. The Federal Government or Provincial Government by notification may appoint Inspectors for the purpose of this Act within local limits assigned to them. Though at later stage a notification dated 10th December, 2015 was placed on the record whereby PW-1 was transferred from Zone D. The action taken by PW-1 is clear violation of section 17 of the Act. Under the Act the notification of his appointment was to be notified in the official gazette. The prosecution was bound under the Act to bring on record the notification of his (PW-1) appointment. There is no cavil to the proposition. Mere placing a document on record cannot be considered as evidence. Reliance is placed on the case of Shaukat Hayat v. The State 1982 PCr.LJ 48 (Lahore wherein it was held:

"3. Apart from the question as to whether the omission to notify the appointment of the Inspector in the official gazette detracts from his authority to function under the Drugs Act, which may be dealt with in an appropriate case in future the record shows that no order of appointment has been produced at all in this case.-------

Similar view has been taken in the reported case The State through Advocate General High Court of Sindh v Iqbal Ahmed Khan 1996 SCMR 767, wherein it was held:

"......The requirement of law and precondition imposed for prosecution have to be complied with by the complainant and the prosecuting agency. It was the duly of the prosecution to have produced the relevant notification for appointment of Inspector along with the complaint. It was not the duty of the accused or the defence counsel to have asked the complainant to produce any notification or to prove his capacity to institute prosecution as required by section 30. This requirement of law is meant to be complied with by the prosecution and if no objection has been raised by the defence at the trial, it would not validate the proceedings which otherwise are vitiated far non-compliance of section 30. One of the main objects of all these provisions referred above is that on the one hand, there should be strict check on manufacture and sale of spurious drugs and on the other hand limitations have been placed on the powers of the Drug Inspector so that under the cloak of his authority, he may not create embarrassing situations for the manufacturers and the dealers by transgressing his powers beyond the territorial limits assigned to him. Therefore, a balance has to be maintained between the rights of the citizens and the powers of the authorities. The provisions of the Act have to be seen in this background and it was with this view that limitation on instituting prosecution has been prescribed by section 30. A prosecution can be instituted by a Federal Inspector or a Provincial Inspector. Mr. Halipota, the complainant did not hold any of the positions and was, therefore, not competent to institute the case/prosecution before the Drug Court. The entire proceeding was, therefore, vitiated. The view taken by the High Court is correct and in consonance with the provisions of law."

As per dictum laid down in supra case the prosecution is bound to produce notification.

10. The record depicts that the then Drug Inspector Agha Amir Jan continued proceeding the case as Drug Inspector Zone F. As per referred notification at relevant time he was posted as Drug Inspector Zone D. The concerned Drug Inspector acted illegally without authority. Where law provide for doing a thing in a particular manner it should be done in that manner. The prosecuting agencies have no liberty to act on their whims in arbitrary manner. They have to act according to law. Reliance is placed on the case of Mst. Perveen Kousar v. Shakil Ahmed 2012 PCr.LJ 614 [Balochistan). It was held:

"7. It is a settled principle of law that if any act is required to be done in a particular manner, then it should be done in that manner, otherwise, it should not be done at all."

11. Agha Amir Jan Drug Inspector visited Al-Saif Medical Store Prince Road Quetta, where he took in to possession sample of Astomeg Tablet Batch No. TD-12, manufactured by Messrs G. Zee Health R-895 Sector 7-D/3, North Karachi and Messrs Sois Life Science A-84 SITE Super Highway, Phase-I, Karachi and sealed in parcel. The prosecution had neither recorded statement of owner/any employee of Al-Saif Medical Store, nor recorded statements of nearby shopkeepers. Where freedom and liberty of a citizen involved the prosecution has to comply the requirement of search and seizure as contemplated in section 103, Cr.P.C, which has not been complied within the instant case. The Code of Criminal Procedure is applicable in the proceeding of the Act. It would be relevant to reproduce section 18(2) of the Act:

"Section 18(2). The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in so far as they are not inconsistent with the provision of this Act, shall apply to searches and seizures made under this Act."

12. From the above referred section it can safely be gathered that provisions of Criminal Procedure Code are applicable to the search. The officer conducting the proceedings under the Act is bound to associate/call respectable inhabitant of the locality to become a witness. Reliance is placed on the case Saddam Hussain v. The State 2018 PCr.LJ 1443, wherein the honorable court made reference to the case Drug Inspector v. Muhammad Ashiq Mirza NLR 1993 Cr.LJ 102, wherein it was observed:

"Learned counsel has also referred to the provisions of section 18(2) of the Drugs Act, 1976 and those of section 103 of the Cr.P.C. with regard to the searches and seizure. It has been submitted that no respectable person of the locality was joined by the Drug Inspector at the time of the seizure of the sample taken in this case and as such the recovery effected in this case cannot be said to have been made in accordance with law. This position appears to be correct and the State has also miserably failed to controvert this aspect of the matter. Reliance has also been placed in this behalf on NLR 1985 U.C. 386 (2) by virtue of which the then Drug Court for Punjab had also found that non-compliance of the provisions of section 103, Cr.P.C. also got to help the accused in claiming acquittal."

The facts and circumstances mentioned above, cumulatively, lead this court to draw a conclusion that the prosecution remained unsuccessful in proving the charge against the appellant beyond any shred of doubt. Consequently the appeal is allowed. The impugned judgment 15th December, 2017 passed by the Drug Court Balochistan, Quetta is set aside. The appellant Muhammad Imran son of Abdul Razzaq is acquitted of the charge under section 23(1)(a)(vii) read with sections 27 and 34 of the Drugs Act, 1976 in Drug Case No. 32 of 2017. The appellant is on bail, his bail bond stands discharged.

SA/170/Bal. Appeal allowed.