F.M.C. UNITED (PVT.)LTD. Versus P.O.P.
SYED HAMID ALI SHAH, J .---Writ Petitions Nos.1749 of 2001, 887 of 2001 and Writ Petition No.379 of 2001, involve common questions of law and will be disposed of through this single judgment.
2. Agricultural Pesticides Ordinance, 1971, was promulgated to regulate the import, manufacture, distribution and use of pesticides. Subsections (3) and (6) of section 18 of the Ordinance, made the report signed by Government Analyst, of the analysis conducted by him or certificate of analysis prepared by the pesticides laboratory, conclusive evidence of facts stated therein, against the person from whose possession the sample has been taken. The punishment prescribed for involvement in the offence of adulterated pesticides is 1 to 3 years imprisonment and fine up to Rs.5 lacs to a person guilty of the offence. Subsequent offence, entails punishment of 2 to 3 years imprisonment and fine of Rs.5 to 10 lacs. An offence in respect of sub-standard pesticide is punishable with the imprisonment of 6 months to 2 years and fine of Rs.5 Lacs for first offence and the subsequent offence, is punishable with imprisonment of six months to three years and the fine, as prescribed for first offence.
3. Petitioners have assailed the above provisions, with the contention that impugned provisions offend Article 4 of the Constitution of Islamic Republic of Pakistan. Provisions of the Ordinance, make the reports of analyst and the laboratory as conclusive evidence. Hence the right of fair trial is taken away from the accused. The provisions on one hand offend Article 4 and on the other hand Article 14 of the Constitution.
4. Learned counsel for the petitioners contended that Inspector on receipt of the report, lodges F.I.R. and accused is immediately arrested. The report of analyst can be negated through a test from Pesticides Laboratory. By the time subsequent report is made available, the accused had already faced the agony in the lock up and humiliation he had faced, will remain un-redressed. Learned counsel added that there is minute distinction between the definitions of adulterated and substandard drugs. The penalty prescribed for each offence is different. The Inspector is empowered to classify the offence in either category. This colourful exercise of power, equips the inspector to blackmail an accused and take advantage of the situation. The offence is cognizable and non-bailable within the contemplation of section 26-A of the Ordinance. The inspector under the provisions of section 17, has to take the samples. The sample is sent to Government Analyst, for laboratory test, who is under the supervision of Provincial Government. Pesticide laboratory on the other hand is under Federal Government and its reports are more authentic. An action against accused is taken on the basis of report of Government Analyst and .F.I.R. is lodged when report is received. The authentic report of Pesticide Laboratory, is obtained subsequently, which is not helpful at the initial stage. He added that term "conclusive evidence" as defined in Stroud's Judicial Dictionary, means absolute evidence of such facts, for all purposes for which it is so made evidence. Making the report as conclusive evidence, the impugned Ordinance has impinged upon judicial powers. The- right of the accused to a fair trial has been snatched. The power to weigh the evidence is given to executive body and nothing is left to the Court. The sample is sent through registered post and in the process of transmission of the sample, the sample loses it's value, if not stored properly. Learned counsel contended that petitioners have invested billion of rupees in the business of pesticides. They are left at the mercy of an official of Government, as the report is lodged, at the instance of Government official and not by an aggrieved party. Learned counsel supported his contentions by referring to the cases of Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Muhammad Ismail and others v. The State PLD 1969 SC 241; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. and another PLD 1984 Lah. 69; Ujagar Singh and others v. Emperor AIR 1939 Lah. 149 and Behram Sheriar Irani v. Emperor AIR 1944 Bom. 321.
5. Learned Deputy Attorney-General, on the other hand, submitted that the Ordinance is enacted to save agriculture, which is the back bone of county's economy. He contended that by making the reports conclusive evidence, the Court is not absolved of it's obligation and the accused is given fair chance of defence. He referred to section 510 of Cr.P.C. and contended that report is admissible in evidence under the general law as well.
6. Heard learned counsel for the parties and record perused.
7. Pesticide worth more than Rs.10 to 20 billions, is imported for supply and marketing. More than 13693 authorized dealers are working in the Province. The products are sensitive in nature and require special handling. Small portion of increase or decrease in active ingredient of the product can fetch huge profit, but it can at the same time render the product, ineffective against the pest it is applied for. Effective measures are required to control the standard of the product.
8. The Ordinance provides the machinery to control adulterated or substandard pesticides. Petitioners' claim that reports of Government Analyst and Pesticide Laboratory are conclusive evidence and take away from the accused his right to defend himself by leading evidence to the contrary, to dislodge these reports. The stance of the petitioners, requires deeper appreciation.
"Adulterated" as defined in section 2(a), means a pesticide within which spurious, deleterious or harmful substance is mixed. "Substandard" as defined in section 2(rr) means a pesticide the strength and purity of which falls below the professed standard or quality; or where the valuable ingredient in a pesticide has been partially or wholly extracted. The definition of "substandard" or "adulterated" pesticide as is envisaged in the above provisions of law, reflects that the contents of the product are determining factors. Whether or not a product is substandard or adulterated, can be ascertained through laboratory test. The chemical properties of a product or it's substance, cannot be ascertained by leading evidence or by producing oral evidence through witnesses. The Court cannot assign to itself the task of an Expert and resolve a highly technical issue, by recording the evidence of witnesses and appraising the contents of a product on such evidence. Chemical properties in a substance can be examined and ascertained on the basis of chemical examination, through proper process, in the Laboratory. That is why, the Legislature in it's wisdom, has made the Laboratory reports of Experts, as determining factor.
9. The Ordinance has provided a transparent procedure for collection of samples. According to the provisions of section 17, the sample drawn/taken for the purposes of analysis or test, is divided into three parts. One portion is handed over to the person from whom it is taken. Second part of the sample is sent for Laboratory analysis, while third is retained by the inspector. The inspector is duty bound to seal the samples and mark it suitably, for the purposes of identification. The samples as per Rule 36, are sent after effective sealing through registered post.. Federal Government, if finds that evidence placed before it, is such that it needs further investigation, the Government can get the second part analyzed at the Pesticide Laboratory. The Authorized officer, has to record the conditions of seal, as per Rule 22, when the packet is received at the Laboratory. The qualifications for Government Analyst is Masters Degree with five years experience in the analysis of pesticides. The inspector, as per Rule 33, is required to inform in writing the purpose of analysis in Form 10, to the person from whom he takes the samples. The purchaser of the pesticide can get the analysis of the pesticide, under section 20, of the Ordinance. The perusal of the provisions of the Ordinance and the Rules, reflects that adequate measures are provided for the sampling, for the analysis of the product and transparency regarding fair testing has been insured. The procedure which the law has provided for sampling and the manner in which the analysis is made, speaks of the fact that the process, is due process of law. Section 27 of the Ordinance, provides for summary procedure for trying an offence punishable under section 21 of the Ordinance. The Magistrate while proceeding on the application of the prosecution, will conduct the trial in accordance with the provisions contained in sections 262 to 265 of the Code of Criminal Procedure, 1898. Law imposes no restraint upon an accused in the course of trial to defend himself.
10. Provisions of section 18(6) of the Ordinance II of 1971, do not take away from the Court, it's power to conduct a fair trial. The certificate of analysis, prepared by the Pesticide Laboratory is conclusive evidence of the facts stated therein. The word "Evidence" in common practice is matter of fact furnished in legal proceedings. In the legal sense "evidence" means all statements which the Court permits or requires to be made before it by the witnesses in relation to the matters of fact under enquiry and all the documents produced for the inspection of Court. Word "Fact" according to its dictionary meanings is something that actually exists or an aspect of reality. When a fact is "conclusive proof" of another fact, Court cannot call upon the party to prove that fact. Nor can it allow the opposite party to adduce evidence to disprove the fact. But contrarily, when a piece of evidence is made conclusive evidence; it does not absolve the Court of its primary responsibility to look into other evidence, conduct trial and assess such evidence with the support of other evidence.
Presumption is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It can be presumption of fact/natural presumption or presumption of law. Presumption of law is either rebuttable or irrebutable. Rebuttable presumptions are indicated by the expression "shall presumed" and Articles 90 to 95, 99 and 121 of Qanun-e-Shahadat Order, 1984, govern these presumptions. Irrebuttable presumptions are indicated by the expression "shall conclusive proof". Articles 55 and 128 of Qanun-e-Shahadat Order, 1984, pertain to these presumptions. There is no difference between the phrase "Conclusive Proof" or "Conclusive Evidence". The object of both the phrases, is to give finality to the establishment of the existence of a fact from the proof of another.
11. The contents or ingredients of pesticides, are upto a prescribed standard, is a matter which cannot be ascertained through recording the evidence of the witnesses. It is to be examined in a laboratory through a laboratory test. The Ordinance has provided the conduct of the test through two different laboratories to rule out the chance of imperfect test in the laboratory. The presumption of conclusive evidence is attached to the second test, carried by the Government Analyst is an independent body and its impartiality need not be doubted. The analyst report is made conclusive evidence to curb unlawful sale of adulterous substandard and spurious pesticides. The presumption therefore, cannot be termed as illegal or unconstitutional. Presumption of constitutionality is attached to every legislation and dictum laid down by the Honourable apex Court in the case of Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994 can be referred. Reasonable restriction on fundamental laws are permissible. The reasonableness depends upon the circumstances and nature of the rights involved. It is the objective which is the yardstick and not the provision of law. To achieve the 6bje Live in public interest, Legislature may enact such laws in the prevailing circumstances. As authority for this proposition, the reference can be made to the cases of Saiyyid Abdul Ala Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673; Universal Tobacco Company Par Hoti, Mardan through Manager and 9 others v. Pakistan Tobacco Board and 3 others 1998 CLC 1666 and Chitta Ranjan Sutar v. The Secretary, Judicial Department, Government of East Pakistan and 2 others PLD 1967 Dacca 445. Here I may refer to a maxim "Omnia Paraesumuntur contra spoliatorem" (Every presumption is made against a wrong doer). Holy Prophet (p.b.u.h.) in his saying, had condemned the one who involves himself in adulteration, in the following words:--
I have no hesitation to hold that provisions of section 18(6) of Ordinance, 1971 are essential to achieve the objective in the large interest of public. The public interest has the precedence over the personal interest. The constitutional petition challenging the validity of the impugned provision, is neither competent nor has any merit.
12. For the foregoing these petitions have no merit and are accordingly dismissed with no order as to the costs.
M.B.A./F-46/L Petitions dismissed.