2004 PLP 319 (SCMR)

Laws Cited

Representation

• Sheikh Zia Ullah, Senior Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record (absent) for Petitioner.
• Date of hearing: 30th September, 2002.
• Ch. Arshad Ali, Advocate Supreme Court for the State.
• 3. It is mainly argued by Sheikh Zia Ullah, Senior Advocate Supreme Court on behalf of petitioner that sufficient incriminating material connecting the accused/applicant with the commission of alleged offence is lacking and thus the matter falls within the ambit of further inquiry. It is next contended that in view of the inordinate delay in conclusion of trial the petitioner deserves bail as the complaint was filed against him on 6-5-2002 and prosecution could not produce any witness on various dates. It is further argued that appointment of Mr. Ayaz Ali Khan, Drug Inspector, for whole of Punjab was in violation of the provisions as contained in section 17 of the Drugs Act, 1976 and as such all the proceedings initiated by him including registration of case being ab initio void and having no sanctity of law the concession of bail can be extended. It is urged with vehemence that no show-cause notice was issued to the petitioner and he was not afforded proper opportunity of hearing as provided under sections 11(5)(b), 19(6) and 20(3)(c) of the Drugs Act, 1976 read with rule 4 of the Punjab. Drugs Rules, 1988. It is argued emphatically that due to non-prosecution of Messrs Multi-Pharma (Pvt.) Limited the petitioner could not have been prosecuted under section 34 of the Drugs Act, 1976, which aspect of the matter escaped notice resulting in serious prejudice. It is argued that the report of Government Analyst declaring the drug as spurious and substandard is based on opinion simpliciter and no scientific device, formula or test was applied before such declaration. It is also mentioned that the alleged offence does not fall within the realm of provisions as contained in subsection (1) of section 497, Cr.P.C. as such the petitioner is entitled for grant of bail. Sheikh Zia Ullah, Senior Advocate Supreme Court also argued that the provisions as contained in section 103, Cr.P.C., which were applicable have been violated and no private witness could be associated when the raid was conducted which caused serious miscarriage of justice. The learned Senior Advocate Supreme Court has also referred the following authorities in support of his above contentions:--
• 4. Ch. Arshad All, learned Advocate Supreme Court appeared on behalf of Advocate-General, Punjab and vehemently controverted the viewpoint as canvassed by Sheikh Zia Ullati, Senior Advocate Supreme Court on behalf of petitioner by contending that sufficient incriminating material connecting the accused/applicant with the commission of alleged offence has been collected on the basis whereof it can be concluded safely that prima facie a case is made out against the petitioner. Ch. Arshad Ali, learned Advocate Supreme Court urged with vehemence that the petitioner was involved in manufacturing process of substandard and spurious drug which cannot be considered lightly in view of its drastic impact on the society as a whole. The learned State Counsel has also produced notification showing that appointment of Mr. Ayaz Ali Khan has been made in accordance with law. The order impugned has been supported.
• 5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of Drugs Act, 1976 and record of the case. We have minutely perused the order impugned. Let we mention here at the outset that we are deliberately withholding comments regarding applicability of certain sections of the Drugs Act, 1976 pressed into service by Sheikh Zia Ullah, Senior Advocate Supreme Court on behalf of petitioner to avoid the possibility of prejudice. Even otherwise it could be premature to dilate upon and decide such questions which have no nexus with the question of bail and the same could have been conveniently agitated during trial. We have perused all the cases which were relied upon by the learned Senior Advocate Supreme Court but in our considered opinion being distinguishable it hardly renders any assistance to the case of petitioner. All the judgments as mentioned hereinabove were made at the time of conclusion of trial and not at bail stage which is the main feature of distinction. A careful scrutiny of the entire record would reveal that petitioner was owner of the Messrs Multi-Pharma (Pvt.) Limited and apprehended at the spot in manufacturing process and putting false labels on Norgesic injections. Besides that huge quantity of Norgesic injections without labels alongwith packing material were also recovered from the spot and thus it can be inferred safely that prima facie a case is made out against the petitioner. Admittedly the alleged offence does not fall within the purview of section 497(1), Cr.P.C. but on this score the concession of bail cannot be claimed as a matter of right in view of the nature of the offence and its harsh impact on the society as a whole. We have, however, observed that there is some delay in collusion of trial as the Drug Court at Lahore is not functioning and its additional charge has been handed over to learned Sessions Judge, Gujranwala who is directed to get the case disposed of expeditiously. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.

Headnotes / Summary

Judgment & Decree