SHUJA ULLAH Versus STATE

A case was registered against the petitioner, the supplier of the Drugs vide F.I.R. No.676 dated 18-12-1991 Police Station East, Peshawar Cantonment by Ghulam Muhammad, Inspector of Drugs, N: W.F.P., Peshawar under section 23, subsection (1), clause (a), sub-clauses (i) and (vii) and section 27, subsection (1), clauses (a) and (b) of the Drugs Act, 1976 (hereinafter referred to as the Act) since during general inspection the Provincial Inspector had seized a sample of Colic Syrup B.No.28 manufactured by Brick Laboratories Unani, Lahore (writ petitioner) from the premises of Messrs Crescent Medical Store, Soekarno Square, Peshawar Cantt. supplied by Shujaullah, Proprietor of Brick Laboratories and sent the sample for test analysis to D.T.L., Peshawar and that Government Analyst had declared the said sample adulterated, misbranded and spurious which was an offence cognizable under section 27, subsection (1), clauses (a) and (b) of the Act.

2. The registration of -the case against the petitioner in the manner above was challenged in the writ petition inter alia on the grounds that the petitioner's firm is a Member of P.T.P.MA., its manufacture of the Colic Syrup was not a drug covered by the Act pertaining to allopathic medicines and that the Unani preparations are governed by Ayurvedic Unani and Homeopathic Practitioners Act, 1965 and that Ghulam Muhammad, Provincial Inspector appointed under the Act was not competent to seize the Unani Preparations. Lastly it was contended that the Provincial Inspector had not followed the prescribed procedure and had straightaway registered an unwarranted case of a cognizable offence against the writ petitioner just for harassment:

3. The learned counsel, for the parties in Mr. Munir Ahmad Bhatti, Advocate for the petitioner, Mr. Nasirul Mulk, Advocate-General for the Provincial Government and Mr. Abdul Hakeem Khan Kundi, Advocate for the Federation were heard at length. Besides the Provincial Inspectors were heard in person. Herein we would, however, like to confine our findings to the registration of the case by the Provincial Inspector on his own without the instructions of the Provincial Quality Control Board (hereinafter referred to as the Board) and in this regard we would refer to section 11, subsection (5), clause (b) of the Act which lays down the powers and functions of the Board to scrutinize the reports of the Provincial Inspectors in respect of contraventions of the Act and reports of the Government Analyst vis-a-vis drugs sent to them by Provincial Inspectors for test and analysis and then to issue instructions to the Inspectors as to the action to be taken on such reports. It provides that the Provincial Inspector may, however, make a complaint to the Drug Court or take any other action without the specific instructions of the Board in the class of cases specified by the Board. This is not the position in the case in hand that the Provincial Inspector had been issued instructions by the Board to register a case against the petitioner nor it is a case pertaining to the class of cases specified by the Board in this regard. In the context reference is further made to section 19, subsection (6) providing for the procedure for Inspector in that as and when the Provincial Inspector finds any contravention of this Act then unless otherwise directed by the Board he shall always refer the case to the Board and seek orders as to the action to be taken in respect of such contravention. Reference is also made to section 30 of the Act which states that no prosecution shall be instituted under Chapter IV except by a Federal Inspector or a Provincial Inspector in respect of contravention of any provisions of this Act or the Rules relating to the import or export of drugs etc. It is provided in subsection (2), clause (a) that all offences punishable under the said Chapter shall be non-cognizable except an offence mentioned in subsection (1) of section 27 and that all these offences shall be triable by a Drug Court. The Provincial Inspector was herein misled by the provision contained in section 30, subsection (2), clause (a) of the Act as since he considered the offence one covered by subsection (1) of section 27 which was a cognizable offence hence he straightaway proceeded to register a case in the police station vide the F.I.R. We understand that irrespective of the case being a cognizable or non-cognizable, the Provincial Inspector has to make a report to the Board as and when there is any contravention of this Act and only on reference of the case to the Board and seeking orders as to the action to be taken in respect of such contravention the Provincial Inspector can proceed to take the said action including the registration of a case. It is remarked that without specific instructions of the Board the Provincial Inspector cannot register a case even if it pertains to cognizable offence. He can also not file a complaint with respect to a cognizable/non-cognizable offence under the Act unless it pertains to the class of cases specified by the Board as such.

4. Consequently after having found that the registration of the F.I.R. in respect of the offence is not a case classified by the Board nor there has been submitted a report by the Provincial Inspector to the Board and there have not been obtained instructions from the Board in respect of the registration of the F.I.R. we shall accordingly hold the registration of the F.I.R. in the present case by the Provincial Inspector on his own as an act without lawful authority on his part and the same is hereby declared to be of no legal effect. The writ petition succeeds to the extent. There is made no order as to costs.

N.H.Q./1525/P Constitutional petition accepted.