1983 P Cr (PLP)

The accused who are partners in the firm of Messrs Pioneer Laboratory Malir, have been charged with manufacturing for the purposes of sale yellow soft parafin, and drug which was not registered in their name, in contravention of the provisions of subsection (6) of section 7 of the Drugs Act.

2. Messrs Pioneer Laboratory, of which both the accused are partners is engaged in the manufacture of drugs in its factory situated at Malir. On the 13th of August, 1976, the Federal Government, in the Ministry of Health, issued a notification under subsection (6) of. section 7 of the Drugs Act, 1976, prohibiting the manufacture, after the 30th of September, 1976, of any drug which was not registered. As information was received by the Drug Control Section of the Ministry of Health that the factory of the accused was continuing to manufacture for the purposes of sale unregistered drugs after the cut‑off date, a raid on the said factory was organized on the 1st of October, 1976. The raiding party consisted of Dr: Fazli, Chairman Federal Quality Control Authority under the Drugs Act, Assistant Drug Controllers Mr. Gayoor Abbas and Dr. Sami Khan, some policemen headed by A. S. I. Atta Muhammad of Malir Police, two mashirs by name Ghulam Mustafa and Saeed and one Mohammad Younus. When the raiding party visited the factory of the accused at about 11.30 a. m. it found six male and six female workers present in the factory. These twelve persons are said to have been engaged in punching tubes, which had been filled with Yellow Soft Parafin, putting stamps on the labels and packing the tubes in cartons. Some of the employees were engaged in affixing labels on the cartons in which the tubes of yellow soft parafin had been packed. At that time only accused Mohammad Ahmed was present in the factory. The other accused, Rashid Ahmed, is said to have gone out to the city. As accused Muhammad Ahmed was unable to produce before the raiding party the registration certificate in respect of yellow soft parafin, which was in the process of manufacture and packing, Mr. Gayoor Abbas there and then made a written complaint to A. S. I. Atta Muhammad who was in the raiding party. Thereafter the raiding party seized from the factory five tubes of yellow soft parafin as well as some cartons and labels for such tubes and prepared a recovery memo. On the same day, at 1.20 p.m. the A. S. I. registered a formal report against the accused. He, then recorded the statements of Dr. Sami Khan, Dr. Fazli, Taxi driver Saeed Khan, Mohomed Younus, and Kbawaja Mustafa. Upon completion of the enquiries, the accused were challaned to stand their trial in this Court.

3. The prosecution have examined Dr. Fazli, mashirs Ghulam Mustafa and Saeed Khan and A. S. I. Atta Muhammad. All four of them have fully supported the prosecution case against the accused. Dr. Sami Khan and Mr. Gayoor Abbas could not be examined as the former has resigned his job and his present whereabouts are not known while Dr. Sami Khan has gone away to Libya. Dr. Fazli, who is a senior officer in the Ministry of Health, has produced the notification under section 7 (6) of the Drugs Act, 1976, prohibiting the manufacture, after 30th August, 1976, of any unregistered drug. This notification was published on 13th August, 1976, in the Extraordinary Part of the Gazette of Pakistan. He has further testified to have headed the raiding party which visited the factory of the accused on 1st October, 1976, at about 11.30 a.m. and has de?posed to having found six male and six female workers in the factory engag?ed in the task of punching tubes containing yellow soft parafin, affixing stamps on the labels of the tubes, packing the tubes in carton and labeling the cartons. The witness has also stated that they had seized from the factory samples of the tubes, labels and cartons upon which the workers in the factory were working and thereafter as accused Mohomed Ahmed was unable to produce the registration certificate in respect of the yellow soft parafin which was being manufactured in the factory, a formal, complaint in writing was made on the spot by Mr. Ghayoor Abbas who was in ‑the raiding party. The evidence of the remaining three witnesses examined by the prosecution is substantially similar.

4. Accused Mohammad Ahmed, in his statement under section 342, Cr.P.C., has admitted that officers of the Health Ministry, accompanied by mashirs and Police Officers, had raided his factory on 1st October, 1976 and that six male and six female workers were present at that time in the factory. He has, however, denied that they were engaged in the work of manufac?turing any drug or that any step in the manufacture of soft yellow parafin was that time being carried on in the factory. His version is that the tubes of yellow soft parafin, which were ordered by the Military Autho?rities, were in fact manufactured in July, 1976, including the stamping of the tubes with the mark of the Defence Department, were completed prior to 30th September, 1976. He has further added that the services of the temporary staff had been terminated with effect from the latter date and he had come to the factory on the 1st October, to pay the wages of the workers and it was for the purposes of receiving their wages that some workers had come to the factory on the day of the raid. With his state?ment he has produced a copy of the Inspection note and a letter addressed to the Unique Stores, both of which are signed by Mr. Abdul Samad Shah officer‑in‑charge, Armed Forces Inspectorate of Medical Stores, Karachi. The inspection note, which refers to the indent of 20,000 tubes of yellow soft parafin, is dated 14th January, 1977, and recites that out of the inden?ted and tendered quantity, a total of 18,621 tubes was accepted? that the tubes were manufactured by Messrs Pioneer Laboratories, Karachi, and the date of manufacture was July, 1976. The other letter, which is dated 30th September, 1976, intimates acceptance of 10,000 tubes of yellow soft parafin, manufactured by Messrs Pioneer Laboratories including 5 tubes expended in carrying out tests.

5. Accused Rashid Ahmed, in his statement to Court, has stated that he was not present in the factory at the time of the alleged raid by the officers of the Health Ministry and hence he is not aware whether any workers were present in their factory at that time, and if so, what they were doing. He has, however, supported the version of accused Mohammad Ahmed that the tubes of yellow soft parafin were manufac?tured in July, 1976, and the manufacturing process bad been completed before 30th September, 1976, when even the inspection by the Inspectorate of Medical Stores was carried out. With his statement he produced (1) copy of letter from Messrs Pioneer Laboratories, dated 9th September, 1976, offering inspection of item No. 6 of contract No. 501022/104012/E/ 251/D. D. P‑11I/P‑26, dated 12th January, 1976 (relating to supply of tubes of yellow soft parafin) ; (2) master copy No. 2 of the aforesaid contract executed by the Director, Defence Purchase (Medical) and Messrs Pioneer Laboratories : (3) Photostat copy of the purchase order for 20,000 tubes of yellow soft para6n and (4) photostat copy of the letter, dated 30th September, 1976, from the Officer‑in‑charge, Armed Forces Inspecto?rate of Medical Stores, Karachi, to Messrs Unique Stores regarding acceptance of 10,000 tubes of yellow soft parafin.

6. In their defence, the accused have examined Syed Abdul Samad Shah and Irshad Mohammad, who are respectively the officer‑in‑charge and Research Assistant in the Armed Forces Inspectorate of Medical Stores, Karachi, and Muhammad Salim, the proprietor of Unique Stores.

7. D. W. Muhammad Salim has stated that he had undertaken to supply 20,000 tubes of yellow soft parafin, for which he had placed orders with. Messrs Pioneer Laboratory, that he had applied to the Inspectorate of Inspection on 15th August, 1976, for inspection of the consignment at the premises of the accused and that the delivery of the consignment was to be made by the accused but under his supervision. The witness has admitted that the inspection of the stores was not made in his presence and that when he had inspected the tubes on 25th August, 1976, they were not in cartons but were lying open in crates. The claim of this witness that he had undertaken to supply 20,000 tubes of yellow soft parafin to the Armed Forces is in conflict with the contract about the supply of these tubes which was between the Directorate of Defence Purchase and Messrs Pioneer Laboratories and not with this witness or the Unique Stores. No doubt the work order, of which photostat copy has been produced by accused Rashid Ahmed, is in favour of Unique Stores, but the said copy is inadmissible in evidence as the original work order has not been produced nor have the contents of the work order or the signature thereon been proved.

8. The evidence of D. W. Syed Abdul Samad Shah is to the effect that the Armed Forces had placed orders for the supply of 20,000 tubes of yellow soft parafin with Messrs Pioneer Laboratories and the said goods were supplied in two consignments of 10,000 tubes each. He was further stated that both the consignments were checked by supervisor Irshad Mohammad who found them satisfactory and submitted such reports to him. The completion certificate in respect of the first consign?ment was issued by Irshad Mohammad on 12th August, 1976, and in respect of the second consignment on 30th September, 1976. The witness admitted that delivery of the second consignment was given on 18th November, 1976. He was unable to offer any explanation for the late delivery of the second consignment.

9. D. W. Irshad Mohammad has deposed that under the directions of Mr. Abdul Samad Shah he went to the Pioneer Laboratories on 16th September, 1976, where he found 20,000 tubes of yellow soft parafin, bearing batch Nos. C‑15/76 and C‑15/1976‑A, packed in cartons. The witness has further testified that he drew a sample from the latter batch and thereafter had the remaining of the 20,000 tubes deposited in bond under seal. The witness has admitted that the Stamping of the 10,000 tubes of batch No. C‑15‑1976‑A was done on 29th September, 1976, by the workmen of the accused. 9‑A. The points which arise for determination in the case are :‑ (1) ?????? whether the accused manufactured the drug yellow soft parafin ? (2) ?????? whether the manufacture was for the purposes of sale ? (3) ?????? whether any step in the manufacture of the aforesaid drug was carried on 1st October, 1976 ? (4) ?????? whether the said drug is registered as required by section 7 of the Drugs Act, 1976?

10. Point No. 1.‑It is not disputed that tubes of yellow soft parafin were manufactured by the Pioneer Laboratories. All the 4 prosecution witnesses have testified that at the time of their visit to the above labora?tories they found a number of such tubes in the laboratories. Furthermore, the labels on the cartons in which some of the tubes were packed show that the drug was manufactured by Pioneer Laboratories. The contract with the Directorate of Defence Purchase, which has been produced by accused Rashid Ahmed, also specifies that the contracted quantity of tubes of yellow soft parafin were to be manufactured by Pioneer Laboratories. The Inspection Certificate of the Armed Forces Inspectorate of Medical Stores also specifies the Prioncer Laboratories, Karachi, as manufacturer of tubes of yellow soft parafin. Both the accused, in their statements to Court, have admitted that the said tubes were in fact manufactured in their laboratory. It is, therefore, established that the said tubes were manufactured by the accused in their Laboratory.

11. Point No. 2.‑‑‑The tubes of yellow soft parafin found by the prosecution witnesses at the Pioneer Laboratories were manufactured for the purposes of supply to the Armed Forces pursuant to the contract entered into with the Defence Forces by accused Rashid Ahmed on behalf of the Pioneer Laboratories. The inspection note, Exh. 8/1, indicates that 18,621 of these tubes were in fact supplied to the Defence Services by the accused before 14th January, 1977. D. W. Syed Abdul Samad Shah has also testified to the supply by the accused of 20,000 tubes of yellow soft parafin to the Armed Forces. The contract price for these tubes was Rs. 1,76,380 as indicated in the contract itself. The accused themselves have admitted in their statements to Court that the tubes were manufac?tured by them for the purposes of sale and were supplied to the Defence Services. It is, therefore, established that the accused manufactured the tubes of yellow soft parafin for the purposes of sale.

12. Point No. 3,‑It next falls to be considered whether manufac?ture of tubes of yellow soft parafin was being carried on 1st October, 1976, when the officers of the Health Ministry visited the laboratory of the accused. All the 4 prosecution witnesses, namely, Dr. Fazli, the two mashirs Ghulam Mustafa and Saeed Khan, and A. S. I. Atta Mohammad have testified that when they visited the factory of the accused on the 1st October, 1976, at 11.30 a. m., they found 6 male and 6 female workers in the factory, who were engaged in punching tubes of yellow soft parafin, stamping them, putting the tubes into cartons and labeling the cartons. Dr. Fazli and his companions had seized from the laboratory of the accused some samples of unpunched tubes and also tubes which had not yet been packed in cartons or the cartons whereof had not been labeled. These samples were produced in Court. Dr. Fazli has explained that by punching of the tube was meant the sealing of the rear of the tube, by a punching machine, after the drug was filled in the tube. No doubt there are some contradictions between the evidence of the 4 prosecution witnesses but these are on minor points and do not cast doubts on the veracity of the P. W. According to Dr. Fazli all the workers in the laboratory of the accused were working on one bench in a room and they had recovered the sample tubes from that bench. A. S. I. Atta , Muhammad has also testified that all the workmen were working in one room although he has made no mention of any bench. However, according to mashir Saeed Khan the male workers were working in one room while the female workers were working in another room. This minor contradiction is of no significance and appears to have been due to loss of memory on the part of mashir Ghulam Mustafa. Both the mashirs are independent and disinterested witnesses. P. W. Ghulam Mustafa is a workman who resides near the factory of the accused and was engaged in purchasing crates from Liaquat Market for the purposes of selling eggs. When he was requested by the police party and Dr. Fazli to act as mashir. He has stated that this is the first time in his life that he has acted as mashir. He has further stated that while accused Mohammad Ahmed was in his office, the workers were in a big hall engaged in packing tubes of the drug. He has denied that the workers were in the office and receiving their pay. Mashir Saeed Khan is an equally dis‑interested and independent witness. He was the driver of the taxi in which the raiding party had gone to the factory of the accused. He has neither any interest in the officers of the Health Department or the Police Officers nor he has any animus against the accused. He has testified that there were some wooden crates and the workers after packing the tubes of yellow soft parafin in cartons were placing them in the crates. A. S. I. Atta Muhammad who has fully supported the prosecution case, also appears to us to be an independent and reliable witness. No connection has been shown to exist between him and the officers of the Health Department. In the report lodged with him. which was subsequently registered by him as a First Information Report, it is clearly mentioned that at the time of the raid 12 workers, of whom 6 were girls and 6 were boys, were present in the factory and were engaged in the manufacture of drugs. Accused Mohammad Ahmed himself, in his statement to Court, has admitted the presence of the 12 workers in the factory at the time of the raid. His contention that they had come to receive their pay and were not engaged in the manufacture of drugs cannot be accepted as it is not only contrary to what is stated by the 4 prosecu?tion witnesses, who have categorically denied that the witnesses were either in the office or were receiving pay, but further there is no evidence in support of the version of the accused that the workers had come to receive their pay. If there had been any truth in this version, it could easily have been established by the production of the wage cards of the workers and the account registers of the factory, which documents, however, have not been produced. We are, therefore, satisfied that the 12 workers had come to the factory for the purposes of manufacture of the drugs.

13. It was contended by Mr. Salahaddin Malik, the learned counsel for the accused that the tubes of yellow soft parafin, were in fact manufactured in July, 1976, as indicated in print on the labels on the tubes as well as their cartons. This date of manufacture, how?ever, refers to the period when the batch concerned of the drug was manufactured and not when the tubes of yellow soft parafin were finally made ready for delivery, after proper labelling, stamping and packing them in cartons. It has been admitted by D. W. Mohammad Salim, the proprietor of Unique Stores, that when he saw the consign?ment of yellow soft parafin tubes in the factory of the accused on 25th August, 1976, the tubes were not in cartons, but were lying open in crates. The definition of "manufacture" as contained in section 3 (r) of the Drugs Act, 1976, includes packing, finishing and labelling of a drug, as such, the labelling and packing of the tubes of yellow soft parafin in the factory of the accused on. 1st October, 1976, as testified by the prosecution witnesses, would amount to "manufacture" for the purposes of the Drugs Act.

14. The defence evidence has not succeeded in controverting or even casting a reasonable doubt upon the prosecution case. We have already explained that though the printed labels on the tubes of yellow soft parafin, batch No. C‑15/76, and on their cartons indicate the month of manufacture as July, 1976, the various steps in the manufacture, including packing and labelling of the drug, were not completed in that month and that the final steps in fact were being taken when raiding party visited the factory of the accused. The Inspection note of the Directorate of Inspection, produced by accused Muhammad Ahmad, also is of no assistance to the accused in fact it indicates that the stores (tubes of yellow soft parafin) were supplied after the stipulated date. The late delivery of the consignment has also been admitted by D. W. Abdul Samad Shah, who has stated that the delivery was given on 18th November, 1976, that is much after the registration of the case against the accused. He was unable to explain the cause for the late delivery as he made no enquiries in this behalf. How?ever, it is apparent that the late delivery could only be due to the fact that before the raid on the factory of the accused by the officials of the Health Department, the stores were not ready for delivery. The evidence of D. W. Abdul Samad Shah is even otherwise of no material assistance to the. accused as he has admitted that he himself did not go to the factory of the accused to check whether the stores had been manufactured and were ready for delivery. Likewise, the evidence of D. W. Mohammad Salim, proprietor of Unique Stores, is of no avail to the accused as he has admitted that when he visited the factory of the accused on 25th August, 1976, the tubes of yellow soft parafin were not, in their cartons (that is final packing still remained to be done) and e has not claimed that after the above date he visited the factory of the accused. Moreover he has admitted that he did not count the tubes but relied upon the state?ment of the accused that the full consignment of 10,000 tubes was ready.

15. Although D. W. Irshad Ahmad, the Research Assistant in the Armed Forces Inspectorate of Medical Stores, Karachi has stated that when he went to the Pioneer Laboratory on 16th September, 1976, he found the entire consignment of 20,000 tubes quite ready and the tubes were packed in cartons, he has admitted that on 29th September, 1976, he had again gone to the factory of the accused for the purpose of stamping the tubes and according to him he had stamped 10,000 tubes. It is unlikely that the witness could have stamped such a large quantity of tubes in one day. In any case since the tubes had to be stamped which obviously could not have been done if the tubes had been packed in cartons already, his statement, therefore, that the whole consignment of 20,000 tubes was quite ready, packed in cartons, on 16th September, 1976, cannot be accept. It is apparent that the final packing had not been completed by the cut-off date and it was, therefore, found necessary to call workers on 1st October, 1976, for the purposes of punching the tubes, stamping them, affixing labels on them and packing them in cartons, as found by Dr. Fazli and the other P. Ws. when they raided the factory of the accused on the above date. We are, therefore, satisfied that certain steps in the manufacture of the tubes of yellow soft parafin were being carried out in the factory of the accused on the 1st October, 1976.

16. Point No. 4 ? Dr. Fazli has stated that the accused had failed to produce the registration certificated in respect of the drug in question though he had specifically demanded the same from them. The accused have also not produced before us the registration certificate in respect of the drug not even alleged that the drug was registered at the relevant time. In fact their case is that the manufacturing process was completed before the cut-off date. We are, therefore, satisfied that on 1st October,1976, the drug in question was not registered as required by section 7 (b) of the Drugs Act, 1976, and the rules framed therefore.

17. For the foregoing reasons we are satisfied that the accused are guilty of the offence of manufacturing an unregistered drug. However, the offence committed by the accused is a technical one aw, basically the drug, yellow soft parafin, was manufactured by the accused long before 30th September, 1976, the cut‑off date, and even the completion certificate in respect of the whole consignment of the drug was issued by the Directorate of Inspection by that date, also testified by D. Ws. Abdul Samad Shah and Irshad Ahmad. We consider that in the circumstances only a nominal sentence is called for. We would accordingly impose on each of the accused a fine of rupees one thousand only. In default of the payment of fine, each of the accused will undergo simple imprisonment for three months. The samples of the drug produced in court are ordered to be destroyed. Order accordingly.