2002 PLP 567 (YLR)

Muhammad Aziz Qureshi for Petitioners. Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have sought the quashment of case F.I.R. No. 132 of 1998 registered on 2-12-1998 under sections 23 and 27 of the Drugs Act. 1976 on the complaint of Muhammad Yamin Khan, Provincial Drug Inspector, Lahore at Police Station New Anarkali, Lahore.

2. The brief facts of the case are that a spy information was received that Cheap Medical Store 27-New Anarkali, Lahore was involved in illegal business of drugs. A raiding party was constituted which was headed by the complainant consisting Muhammad Qadeer, Drug Inspecto Kh. Aamer Mahmood, Drug Inspector Farooq Munir, Drug Inspector Shaukat Iqbal Drug Inspector, Lahore Abid Hussain., Sub, Inspector PTS Chung alongwith Raza Abbas Sub-Inspector New Anarkali, Lahore and the went to the Cheap Medical Store. In the meanwhile Farhan Ahmad Khan came to the store and brought a parcel at the Cheat Medical Store. The name of the person who sent the same was written as A. Sami Karachi. The parcel was sent to Cheap Medical Store. The telephone number was also mentioned there. When it was opened smuggled items and Injection PR FAS.5004 and TESTOVERON (N) DEPOT and LUCO METER were found in it. The shop owner namely Maqsood Ahmad and Mahmood Ahmad were present at the shop. They started saying that the parcel does not belong to them. The parcel is for another Medical Store. Then the shop was examined and 26 type of medicines were found without warranty and were taken into possession, the details of which are mentioned in the F.I.R Out of these warranties number of medicines were found unregistered, time-barred and without owners of the Cheap Medical Store are guilty of the offences under sections 23 and 27 of the Drugs Act, 1976, which is punishable with three to ten years' imprisonment and a fine of Rs.1,00,000 which is a cognizable offence.

3. Learned counsel for the petitioners contends that the very registration of the case is illegal and is liable to be quashed as under sections 11(5) (B) and 19(6) of the Drugs Act, 1976 read with rule 4 of the Punjab Drugs Rules, 1988, the criminal case under sections 23 and 27 of the Drugs Act, 1976, cannot be registered without prior permission of the Provincial Quality Control Board set up under section 11 of the Drug Act, therefore, in view of the said situation F.I.R. and other proceedings based on the said F.I.R. are liable to be quashed. He relies on "1994 PCr.LJ. page 1065" and "1998 PCr.LJ page 181". It is further contended that under section 34 of the Drug Act, 1976 M/s. Cheap Medical Store which is a private limited company and being legal person it has not been impleaded as an accused person, therefore, the employees or the Directors of the said Company cannot be convicted hence the proceedings pending before the learned Drug Court are quite illegal and without any lawful justification and may be set aside and the F.I.R. may be quashed. Reliance was placed on "PLD 1991 SC 893", "1985 PCr.LJ 268", "PLD 1978 SC 193", "1996 PCr.LJ 1183" and "1990 PCr.LJ 1475". It is further contended that the sanction has not been obtained from the Quality Control Board Punjab, Lahore and the petitioner No. 1 is being unnecessarily prosecuted by the trial Court. It is further contended that the complainant has failed to comply with the provisions of subsection (2) of section 18 of the Drugs Act, 1976, by non-joining two respectable persons of the locality and this is also gross violation of section 103 Cr.P.C It is further contended that the trial Court has wrongly dismissed the application of the petitioner under section 265-K Cr.P.C on 21-11-2001.

4. I have heard the learned counsel for the petitioners at length and also perused the documents attached with this petition and the case-law cited by him. In case-law cited by the learned counsel for the petitioner Agha Nadim and another v. The Station House Officer Police Station Lohari Gate, Lahore, and another (1998 PCr.LJ. page 181), this Court has quashed the F.I.R. as the complainant did not seek the permission from the Quality Control Board and respondent No.2 did not support the case of the prosecution, hence it was held that the prosecution is with mala fide and without lawful authority, as such F.I.R. was quashed This case is on different footing than the case of the petitioner and is not applicable to the facts and circumstances of this case and the trial in the criminal case in hand is likely to be concluded. This case is based on the judgment of Mansab Ali v. Amir and 3 other: (PLD 1971 S.C. 124). The facts of Mansab Ali's case are entirely different to the case in hand. It was mandatory in that case that before any reference to the Tribunal accused was entitled to be heard and then the reference could be made under section The order made without affording an opportunity of hearing was set aside and subsequent proceedings were declared illegal This order has been passed in appeal against the decision of the Tribunal hence the F.I.R has not been quashed as is prayed for Mansab Ali's case. Hence the case cited Agha Nadim is based on this authority is applicable to the facts and circumstances the case in hand. As far as the contention the learned counsel for the petitioner that the Company has not been made as an accused person to the report under section 173, Cr.P.C. and the trial is liable to be quashed. Reliance was placed on Qasim Shah and others v. The State (PLD 1991 SC 893). This case is distinguishable from the case of the petitioner as the trial was complete and the accused were convicted and this order has been passed while hearing appeal against conviction and it was established on the record that the Company was formed and the offence had been committed by the company. Prima facie case/F.I.R. was not quashed while exercising powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The facts and circumstances of this case are entirely different to the case in hand. The other case cited by the learned counsel for the petitioner is Fazal Elahi and 2 others v. The State and another (1985 PCr.LJ. page 268) in which it has been held while hearing the appeal of the appellants when it was established that the Company was responsible for the offences that it was not made a party. Similarly in the case-law cited by the learned counsel for the petitioner in Tahir Habib v. The State (1990 PCr.LJ page 1474), the F.I.R. was quashed that it was non-cognizable offence and the prosecution could be instituted against the petitioner only by the Drug Inspector and no order could be passed by Magistrate authorising Police Authorities to investigate the same. It was held that the registration of the F.I.R. was without lawful authority and without jurisdiction and the F.I.R. was quashed. The case in hand is punishable with 10 years imprisonment and is cognizable case hence the cited case is not applicable to the facts and circumstances of the present case. The last case relied upon by the learned counsel for the petitioner is the judgment in Hafiz Khalil v. The State (1996 PCr.LJ 1183). This decision has also been made while hearing the appeal against the conviction by a Division Bench of Peshawar High Court and F.I.R was not quashed but it was held that it w established on the record that the offence v committee by the Company who had manufactured the drugs. The facts of this case are quite different from the facts of the case in hand hence no reliance can be place on this case as well. From the bare perusal of the abovesaid case-law it has become crystal clear that the authorities relied upon by the learned counsel for the petitioner are not applicable to the facts are, circumstances of the present case. I had noticed that while dismissing the application under section 265-K, Cr.P.C. the learned trail. Court has met all the objections raised by the learned counsel for the petitioners and has found that the store was physically occupied by both the accused undertrial at the time of raid by the Team. The case property was recovered. The contents were not the manufacture or the product of the Company. It is a personal deal of the persons present a the store while spurious and unregistered drugs had reached the store in the presence o the raiding team and it was held that prim facie there is no violation of any provision of the Drugs Act. Even otherwise I have noticed that out of the total witnesses cited by the prosecution all the evidence according to the learned trial Court has been recorder except the statements of two police officers The petitioners if join in the trial and let the prosecution evidence concluded will be having an opportunity of producing hip defence version and even they will be able to produce the substantiate the same during trial. Oral assertion of the learned counsel for the petitioner that the parcel which u recovered was not of the petitioners will be sufficient to hold that the petitioners not guilty of the offence for which they are being charged as the said parcel w addressed to their shop and was found in their unregistered. Similarly 26 drugs were recovered which were time-barred and without warranty hence prima facie the petitioners were responsible for the offences for which they have been charged. It is a case in which the, prosecution has to establish its case and the accused/petitioners can put their defence by producing the evidence. The prosecution cannot be strangulated on technical grounds which are being taken by the learned counsel for the petitioners to flout the proceedings before the learned trial Court. As far as the contention of the learned counsel for the petitioner that certain section of the Drugs Act, have been violated and the trial has commenced on the F.I.R., the permission for the registration of which was not obtained from the Quality Control, Board, the petitioners can put these questions to the Drug Inspector and he will explain the same and only the trial Court will be in a better position after the recording of the total evidence whether it is an illegality or irregularity and whether it is curable under section 537, Cr.P.C.or not under section 5-A of the Prevention of Corruption Act, 1947, the investigation can only be conducted by an official not below the rank of D.S.P. Acquittal was being sought on the ground that the S.I. has investigated the case. In Wali Zar v. The State (PLD 1960 (W.P) Karachi 204), the Sindh High Court came to the conclusion that even if a provision has been Mated and investigation has been conducted i,; an officer of lower rank the accused cannot be acquitted on this score and it will not vitiate the trial. His Lordship S.A. Mahmud J., as the then was discussed the whole case-law and has held that the investigation, if any, is conducted by an incompetent person will not vitiate the trial. It is mere an irregularity which is curable unless the convict succeeds in making out a him by an irregularity committed during the investigation. The relevant portion is reproduced as under:- "It is only an irregularity investigation of a case undo section 5(1), Prevention a Corruption Act (II of 1947) is hell by a Police Officer below the rank of a D. S. P. in contravention c section 5-A of the Act, neither the competency of jurisdiction of the Court, nor the admissibility a evidence is affected thereby. The irregularity is curable under section 537, Cr.P.C. Where the irregularity has not resulted in failure of justice, the trial held is not illegal and conviction based thereon cannot be set aside of the ground that the investigation: conducted from beginning to end was by incompetent police officers. Though there is a prohibition in section 5-A of the Act that a police officer below the rank of a D.S.P cannot investigate into offence triable under the Act, the prohibition is not absolute, for a police officer below the rank of a D.S.P. would be competent to investigate, if he is permitted by a Magistrate of the First Class to investigate into an offence. The breach lies in the failure to obtain an order from a Magistrate and is, therefore, an irregularity. When a person accused of the commission of an offence is brought before a competent Court it is not a plea to the jurisdiction of the Court that he had been brought before it by some illegal means. Likewise it is not a jurisdictional defect in the trial if the investigation is conducted by an incompetent officer or the matter is brought to the notice of the Court in an irregular manner." In State v. Bashir Ahmad (PLD 1997 SC 408), the Supreme Court of Pakistan has held that if any investigation is conducted by an incompetent person it will not vitiate the trial. The relevant portion is reproduced as under:- "As regards the question, as to whether the above illegality/ irregularity if already committed by the C.I.A. personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C. expressly provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. " It is an admitted position that the CIA is part of the police force. It is in fact a Special Branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C. but it does not mean that the CIA personnel should knowingly violate the above provision of the Cr.P.C. on the contrary, they are legally duty bound to ensure the supremacy of law." From the bare perusal of the above-said case law it is crystal clear that any illegality which is being claimed by the counsel for the l, petitioners is curable under section 537, Cr.P.C. and if the Drug Inspector has not obtained the permission from the Quality Control Board as the learned trial Court has only to see the evidence which is produced! before it at the time of trial whether it is sufficient to connect the accused with the commission of the crime. The accused who are guilty of heinous offences cannot be given the benefit of technicalities if serious allegations are levelled against them that they were found in possession of drugs in violation of sections 23 and 27 of the Drugs Act, 1976, and it will defeat the ends of justice hence I do not want to exercise my discretion favour of such an accused by strangulating the prosecution case which otherwise prima facie is based on sound grounds to connect the petitioners with the commission of the crime.

5. For the foregoing reasons this petition has no merit and is according dismissed in limine. N.H.Q./C-152/L Petition dismissed.