1996SCMR767 (PLP)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the judgment of the learned Judge in Chamber whereby the appeal filed by the respondent against his conviction under sections 27(1)(a) and 27(2)(b) of the Drugs Act, 1976 (hereinafter called the Act), was allowed on the sole ground that Mr. G.R. Halipota, Divisional Drug Inspector, who had filed the complaint, was not an Inspector appointed under section 17 of the Act.

2. The brief facts are that a complaint was made by the Government 1 &, I. Medical Store Depot, Karachi to the effect that chloroquine phosphate tablets bearing batch No.692079 with manufacturing date of July 1'986 and expiry date of July 1988, sold by the respondent and claimed to have been manufactured by M/s. Pakistan Vitamins Products Ltd., were spurious, counterfeit, misbranded and adulterated drug. This letter was addressed to Mr. Abdul Jabbar Qazi, the then Area Inspector of Drugs, Karachi and he was required to draw samples of drugs and send the same to the Government Analyst/Director, Central Drugs Laboratory, Karachi for test and analysis. As Mr. Abdul Jabbar Qazi, Inspector of Drugs, Karachi, was transferred to another area, Mr. G.R. Halipota, Divisional Inspector of Drugs, Karachi, visited the Government I.&I Medical Store Depot, Karachi on 27-11-1986 and collected samples of chloroquine phosphate tablets and prepared samples, which were sent to the Chairman, Provincial Quality Control Board, Sindh, Government Analyst/Director, Central Drug Laboratory, Karachi. The complainant, namely, Mr. G.R. Halipota, also made inquiry from M/s. Pakistan Vitamins Products Ltd., who informed that they had stopped manufacturing this medicine for the last many years. After making necessary inquiries and obtaining the report of the Analyst, Mr. G.R. Halipota, Divisional Inspector of Drugs, Karachi, filed a complaint in the Drug Court. In the complaint in para.25, it was stated that he had obtained sanction for prosecution from the Board by letter dated 3-8-1987. By this letter, the Secretary, Quality Control Board, Sindh, permitted him to prosecute the respondent in consultation with the Assistant Public Prosecutor. The Drug Court took cognizance of the case and proceeded with it. The respondent was convicted and sentenced. This conviction and sentence was set aside in appeal filed by the respondent as the complainant was not an Inspector appointed under section 17 of the Drugs Act and, therefore, under section 30 of the Act, no prosecution could be instituted by him.

3. Mr. A.A. Siddiqui, learned AOR for the petitioner contended that it is a question of public importance and the miscreants who sell spurious and counterfeit drugs should not be allowed to go scot free on mere technical grounds. He has, however, not been able to produce even today a notification by the Federal Government or the Provincial Government by which Mr. G.R. Halipota had been appointed as an Inspector of Drugs. The Drugs Act is a self-?contained special statute, which provides for the offences, prohibitions, procedure for taking samples and prosecution and also prescribes qualifications for persons who may be authorised to take such action and institute case in the Drug Court. Under section 17, the Federal or a Provincial Government may, by notification in the official Gazette, appoint persons having prescribed qualifications as Federal Inspector or as the case may be, Provincial Inspector for the local limits, which is assigned to them. Therefore, the appointment of the inspectors by either of the Governments has to be made under a notification of persons having requisite qualification and also that their field of territorial operation is specifically assigned in it. Each Inspector is assigned an area within which he can exercise his authority as an Inspector. The powers of the Inspectors ire provided under section

18. Under the first proviso to section 18(1), the powers under clauses (f) to (j) of section 18 can be exercised only' by an Inspector specifically authorised in this behalf by an order in writing by the Government appointing him subject to such conditions as may be specified therein. Therefore, except ass provided in the second proviso, the powers under clauses (f) to (j) cannot be exercised by an Inspector duly appointed by a notification unless he has specifically been authorised in this behalf by an order in writing. Section 19 provides for the procedure where an Inspector seizes any drug or any other article under section

18. The most crucial section for the present controversy in section 39, which reads as follows:

"

30. Cognizance of offences.--(1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except-- (a) by a Federal Inspector, where the prosecution is in respect of a contravention of clauses (h) of subsection (1) of section 23 or section 24 or any of the provisions of this Act or the rules relating to the import or export of drugs or the manufacture for sale, or sale of a drug which is not for the time being registered or for the manufacture for sale of which a licence is not for the time being in force; or (b) by a Provincial Inspector: Provided that, where the public interest so requires, the Federal Inspector may, with the prior permission of the Federal Government institute a prosecution for a contravention of any other provision of this Act. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898),-- ????????? (a) an offence punishable under this Chapter other than an offence mentioned in subsection (1) of section 27, shall be non-cognizable, and (b) no Court other than a Drug Court shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence punishable under this Chapter or to require the transfer to a Drug Court of any case which may be pending in any Court immediately before the establishment of the Drug Court. " This section prohibits institution of prosecution by any person except by a Federal Inspector or the Provincial Inspector. The Federal Inspector is authorised to institute prosecution in cases specified in subsection (1) of section

30. However, the proviso to subsection (1) provides that in the public interest, with prior permission of the Federal Government, Federal Inspector may institute a prosecution for contravention of any other provision of this Act. Where a Federal Inspector institutes a prosecution for contravention of any other provision of the Act, which have not been specified in subsection (1), it should be with prior permission of the Federal Government and such permission can be granted by the Federal Government only if public interest so requires. Therefore, the power of the Federal Government is also restricted to such cases where public interest is involved and not otherwise. In the present case, the complainant was not an Inspector appointed by the Federal Government. The complainant was admittedly Deputy Inspector Drugs, Government of Sindh and not a Drug Inspector and, therefore, he could not have instituted the prosecution.

4. The learned counsel for the petitioner contended that at no stage of the prosecution the respondent objected to the authority of the complainant to prosecute him nor any question was put to the complainant regarding production of any notification of his appointment as inspector. The requirement of law and precondition imposed for prosecution have to be complied with by the complainant and the prosecuting agency. It was the duty of the prosecution to have produced the relevant notification for appointment of Inspector alongwith 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 for 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.

5. Before parting with the order, we may express with concern our disapproval to the irresponsible and casual manner in which the officers authorised to regulate the manufacture and sale of drugs and save the innocent citizens from the fall out of spurious drugs, have behaved in discharge of their duties. A person not being an Inspector and not authorised by law should not have instituted proceedings for prosecution. Such prosecutions initiated by unauthorised person show lack of legal understanding and also little care in observing the pre-conditions which indirectly benefit the culprits, who otherwise could have been successfully prosecuted for the offence committed by them. The authorities under the drug law should, therefore, be cautious to 'examine the legal position before instituting the prosecution and where such prosecutions are instituted by unauthorised persons, the higher authorities are bound to investigate into it and must take action against such irresponsible officers who behave in an illegal fashion. With the above observations, leave is refused. N.H.Q./S-1036/S??????????????????????????????????????????????????????????????????? Leave refused.