1985 P Cr (PLP)

SAJJAD ALI SHAH J.‑‑This appeal is directed against the impugned judgments dated 3‑8‑1983,of the Drug Court for Sind and Baluchistan at Karachi, whereby the present six appellants have been convicted under section 27(2)(b) and section 27(4) of the Drugs Act, 1976 (hereinafter to be referred as the said Act) and sentenced to the imprisonment till rising of the Court and to pay a fine of Rs. 10,000 each on both counts or in default of payment of fine to undergo simple imprisonment for two months. On 15‑11‑1984 after hearing learned counsel appearing for the patties in this appeal, by a short order, we had set aside the conviction and sentence of appellants, and acquitted them allowing the appeal for reasons to be recorded later, which follow now. Briefly stated the relevant facts giving rise to this appeal are that appellant No. 1 is Messrs W. Woodwards, Pakistan Ltd. Company (through its Managing Director), appellant No. 2 is Managing Director, appellant No. 3 is General Manager, appellant No. 4 is Production Incharge, appellant No. 5 is Quality Control Officer and appellant No. 6 is Warrantor of the said Company. It is stated in the charge‑sheet that the appellants manufactured for sale a sub‑standard drug namely Woodwards Celevrated Gripe Water Batch No. 27114 and sold it under false warranty to Messrs Faisal Medical and General Store under their Bill No. 5548, dated 11‑2‑1981, from where the said drug was secured by Drug Inspector Mr. Allah Bachayo Memon on 14‑2‑1981 and which drug on test analysis was found to be sub‑standard by a Central Drug Laboratory, Karachi and by National Health Laboratory, Islamabad as such the above‑named appellants contravened the provisions of section 23(1) (a) and (v) and committed offences punishable under section 27(2)(b) and section 27(4) of the Drugs Act, 1976. The above‑named appellants pleaded not guilty to the charge and claimed to be tried. Prosecution examined Abdul Hameed, who is salesman of Messrs Faisal Medical and General Store, Nishtar Road, Karachi. He testified that on 14‑2‑1981 Drug Inspector Mr. A.B. Memon visited his shop and obtained samples of Drug namely Woodwards Gripe Water Batch No. 27114. He sealed as samples four bottles and prepared a form, which he produced as Exh.

11. Drug Inspector gave him a sealed sample and he issued receipt which he produced as Exh.

12. Witness further stated that they purchased the drug from appellant No. 1 Company under their bill and warranty, which was produced as Exh.

13. He produced copy of the test report Exh. 14, letter from Drug Inspector Exh. 15 and his reply Exh.

16. Prosecution examined, Allah Bachayo Drug Inspector as P.W.

2. He testified about the facts already stated above. He stated that he took four bottles of the said drug and sealed them on the spot. He gave one sealed bottle to P.W. 1 Abdul Hamid. On 15‑2‑1981 he sent one sealed sample to the Government, analysts for test. He produced copy of his forwarding letter Exh.

18. He produced test report Exh. 19 and sent a copy to Messrs Faisal Medical Store. He sent sealed sample of the drug and copy of the test report alongwith this letter to appellant No. 1 Company and produced copy of the letter as Exh.

21. He received reply from the appellant Company Exh.

23. He referred the matter to the Provincial Quality Control Board vide Exh.

24. Provincial Quality Control Board issued a show‑cause notice to the appellant and copy was produced as Exh.

25. Copy of reply to the show‑cause notice was produced as Exh.

26. The Provincial Quality Control Board sent one sealed sample of the Drug to the National Health Laboratory, Islamabad for re‑test. He produced copy of the letter and/report of the test Exh.

28. He produced sanction from the Provincial Quality Board as Exh.

29. He lodged complaint in the Court which he produced as Exh.

30. This witness further explained that due to oversight he did not include name of the Company in the list of accused persons, therefore, he lodged a separate complaint against the Company which he produced as Exh.

31. Subsequently the Court ordered consolidation of the two cases. Learned counsel for the appellants before us contended that the entire proceedings before the trial Court were illegal for the reason that the Drug Inspector did not obtain sanction from Provincial Quality Control Board for the second complaint Exh. 31, which is against appellant Company as such. It is further submitted that omission of obtaining sanction for lodging, second complaint was contravention of section 11(5)(b) of the said Act. The provision quoted above relates to the powers of` the Provincial Quality Control Board to scrutinise. the reports of Drug Inspector in. respect of contraventions of the provisions of this act and reports of Government analysts in respect of Drugs sent to them for test and analysis and issue of instructions to the Inspectors as to the action to be taken on such reports. There is further proviso after (b) of section 11(5) which further empowers the Provincial Quality Control Board to specify class of cases. in which a Provincial Inspector may be allowed by the Board to make complaints to the Drug Court or take any other action without obtaining specific instructions from the Board. Learned counsel for the appellants further submitted before us that the Drug Inspector had admitted in cross-examination before the trial Court that he had not obtained permission from the Provincial Quality Control Board for the second complaint, from which an inference can be drawn that he had no permission from the Board as contemplated by proviso mentioned above. Mr. Munawar Malik pointed out that under section 19(6) of the said Act, Drug Inspector is required to seek orders from the Provincial Quality Control Board as to what to do in respect or, contravention of provisions of the said Act. Perusal of the record shows that sanction in question obtained from the‑Provincial. Quality Control Board is Exh. 28 which is dated 15‑7‑1982. In this letter of sanction reference is made to the letter sent by the Drug Inspector in 6‑4‑1981 in which there was omission of the name of appellant‑Company. Exh. 28 clearly shows that the Board had considered the matter and the reports from the Laboratories and concluded that prosecution be launched against the manufacturer. It was put to the learned counsel for the appellants that intention in the letter of sanction was very clear that manufacturer of the drug was to be prosecuted which included, the company as well as other person., actively connected with it and further that the defect pointed out by him was merely procedural in nature and could not vitiate the proceedings. Mr. Munawar Malik also could not cite any provision in) the said Act to show that the trial Court was not competent to consolidate both the complaints. Manufacturer as such is not defined in the said Act but "manufacture" is defined in section 3(r) of the said Act to mean all operations involved in the production of the drug. Needless to say that manufacturers are those who deal `with "manufacture" of drug as defined in the said Act. Mr. Munawar Malik did not press this point any further. The second point urged by the learned counsel for the appellants is that first test report Exh. 19 from Central Drugs Laboratory contains finding that the sample was adulterated and no mention was made in it that it was sub‑standard. It is further stated in the said report that the sample is adulterated as defined in the Drug Act, 1976 for reasons given below. In the column of description the following is stated:‑ "Faintly yellow coloured solution containing black particles." It is further stated in the report that Sodium Bicarbonate has been identified. "Adulterated Drug" has been defined in section 3 of the said Act mean a drug‑‑ (i) which consists in whole or in part of any filthy, putrid or decomposed substance or which contains any foreign matter, vermin, worm, rodent or insect; or (ii) which has been manufactured, packed or held, under unsanitary conditions whereby it may have been contaminated with dirt, filth or any other foreign matter or whereby it may have been rendered injuries to health; or (iii) the container of which releases any poisonous or deleterious substance which may render the contents injuries to health; or (iv) which bears or contains as an ingredient a substance other than the prescribed substance; or (v) with which any substance has been mixed or packed so as to reduce its quality or strength or for which any substance has been substituted wholly or in part. Definition reproduced above is very comprehensive but the first test report Exh. 19 is not consistent with it. There is nothing in Exh. 19 which can be caught within the four corners of definition of "adulterated drug" as stated above. If black particles are found in the test, then the report does not say further whether these black particles are of foreign matter. The report does not say that the contents of sample are injurious to health, or contains an ingredient or substance other than the prescribed substance. Remark stated in the report is that the sample is not of standard quality with regards to this physical appearance. This remark is incomprehensible because it speaks only of physical appearance and not of quality of contents. In the definition no mention is made about the physical appearance of contents. Another major defect in the report is that report is silent with regard to number and size of particles found in the sample and further nothing is stated whether those particles are constituted ingredients of alleged sub‑standard drug or impurities rendering such report useless for comparison with specifications. First test report Exh. 19 is further criticized on the ground that the same is not on prescribed form‑6, and does not fulfil the requirements of rule 16 of Drugs (Federal Inspector, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976. In the report absolutely no finding is given against the column of DETAILS OF RESULT OF TEST/ANALYSIS (with protocols of test applied). Moreover the report itself also is not on the prescribed form as contemplated under rule 16 of the said Rules. Test report Exh. 19, on the grounds assailed as stated above, is not admissible in evidence and in support of this proposition reference can be made to the case of Muhammad Amin Khan and 4 others v . Muhammad Siddique and another 1984 P Cr. L J 1580. Now we come to the second test report which is Exh. 29 on the record. Before we go into the merits of this report, it would be pertinent to point out that objection was raised on behalf of appellants that the Provincial Quality Control Board was not competent to send the sample re‑testing by way of second opinion on its own. In doing so Provincial Quality Control Board has contravened provision of section 22 (4)(5) of the said Act. Subsection (4) mentioned above provides that a report of Government. Analyst shall be admissible in evidence as conclusive unless the person from whom the sample is taken or the said warrantor within 30 days of the receipt of copy of the report, notified in writing to the Inspector or the Drug Court or, as the case may be, the Central Licensing Board or the Registration Board, before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contraversion of the report. Subsection (5) mentioned above further provides that after a person has notified his intention as required under subsection (4), the Drug Court or the Board concerned may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug lying with the Board concerned under subsection (3) of section 19 to be sent for test or analysis to the Federal Drug Laboratory or any other Laboratory specified for the purpose by the Federal Government. It is very manifest in the language used in subsection (5) stated above that only the Drug Court or the Board concerned have been specified specifically to be competent to send the sample for second report. Most conspicuously Provincial Quality Control Board is not mentioned in subsections (4) and (5) above to be one of the agencies made competent to send for second report. In the instant case, therefore action of Provincial Quality Control Board on its own motion sending the sample for second test is without proper authorisation under law and is in contravention of provisions of subsections (4) and (5) of section 22 of the said act as such the second report having been obtained by the Provincial Quality Control Board is illegal and has no warrant in law and further is not. admissible in evidence. Secondly it is not understandable as to what prompted the Quality Control Board to have sent the sample for second test particularly when the report of first test was also against the appellants as the finding was that the sample was found to be adulterated. In that case the .Provincial Quality Control Board should have been satisfied because the finding was adverse to the appellants. In any case report in the second test is also adverse but now findings in both the reports are in conflict which each other. According to the first report, Exh. 29 the drug was adulterated and according to second report Exh. 19 the Drug is sub‑standard. Second test report Exh. 29 is further assailed on many other additional grounds apart from what is stated above. "Sub‑standard Drug" has been defined in section 3(zz) of the said act to mean a drug which is not of specification. This second test report Exh. 29 is also not on the prescribed form as is the first report Exh.

19. In this report also details of results of test or analysis (with protocols of test applied are not given). The finding in the report is that sample is sub‑standard for the reason that it does not comply with specifications. In the ASSAY on Sodium Bicarbonate the following is shown: STATED FOUND LIMIT "1% W/V 1.24% W / V. 0.98‑1.02% The report shown that quantity of Sodium Bicarbonate is stated to be 10.98‑1.02% but in test in the sample was found to be 1.240% when the limit is 0.98‑1.) 2%. We have been referred to British Pharmocapeio 1980 (edition) at page 406 where Sodium Bicarbonate is described in detail and at page 407 it is stated that the same is used as Antacid systemic alkalinising substance and the usual dose range of it as an antacid is 1 to 5 g. On this premises it is argued by the learned counsel for the appellants that in second report Exh. 29 in the sample if Sodium Bicarbonate is found to be in excess by 24% as against 1% so stated, it is neither dangerous nor detrimental as still the ingredient is within the range of normal dose stated in B. P. 1980. Second report Exh. 29 was further assailed on the ground that the report was given by the Laboratory after 60 days of the receipt of sample. Exh. 29 clearly shows that the sample was received on 20‑9‑1981 and the report was prepared and signed on 5‑1‑1982, which is clearly beyond 60 days. Section 22 of the Drugs Act, 1976 clearly envisages sending of report by Government Analyst within 60 days of the receipt of sample and if the report cannot be prepared within 60 days for reasons beyond control of Government Analyst then such reasons are to be communicated to the Inspector in writing and further extension can be sought. In the instant case no extension was sought that report was submitted beyond 60 days. This clearly contravention of section, 22(2) of the said Act. For the facts and reasons stated above we are of the considered opinion that evidence produced by prosecution before the trial Court suffers from inherent infirmities and is ambiguous, defective and unsatisfactory. It is not proper evidence and cannot be acted upon for H the reasons already mentioned above. We, therefore, hold that prosecution has failed in its duty to prove this case against appellants. We therefore, set aside the impugned judgment of conviction and sentence and acquit appellants. In the result the appeal is allowed. H. A. Appeal accepted.