1998 PLP 659 (MLD)

Niaz Ali Shah, Addl. A. G. for Respondents. Dates of hearing: 13th and 14th May, 1997 The petitioner through this Constitutional petition has prayed for declaring the action of respondents illegal, mala fide and without jurisdiction. The relevant facts are that the petitioner was allowed licence by the Health Department, Government of Punjab in Form-25 on 11-8-1970 for drug manufacturing, thereafter the petitioner was issued permit in Form L-42-A dated 9-11-1970. The petitioner also hold licences in Form DD-6 and L-17. The petitioner's firm was allowed about 300 drugs by way of formulation and making in different forms including tablets, syrups etc. The petitioner was also registered for manufacturing of Unani Medicines. It is added that the petitioner applied for licence in Form DD-5 and same was granted and the petitioner was allowed to possess 20 kg Poppy Heads per month for use in Unani preparations. The petitioner last of all applied for inclusion of 10 kg of medicinal opium powder in licence DD-5. It was added that the petitioner fulfilled all the requirements as provided in circulation dated 28-6-1979. It is pleaded that the application was recommended by the committee and finally the then Director, Excise Lahore Division granted the permission but the formal order was not issued when the petitioner pressed hard for doing the needful he was informed that the file is not traceable. It was alleged that the file was held mala fide by Sh. Arshad Hussain, who was in the meanwhile posted as Director Excise and Taxation, Lahore Division Lahore and nursed ill-will towards the father of managing partner of the petitioner's firm. Initially respondent No. 3 was directed to appear in person and thereafter respondents submitted report and para-wise comments. The matter came up for hearing on 6-11-1996 when the petition was admitted to regular hearing. The learned Additional Advocate-General was present on 13-2-1997 when he requested for time in order to have the instruction. The petition was accordingly adjourned for a date in the last week of March, 1997. However, the same was fixed for 9-4-1997 when the learned Additional Advocate-General again requested for time. It was made clear that although there was no justification yet in the interest of justice the respondents were granted one opportunity. The petition was adjourned for 13-5-1997 when the learned Additional Advocate-General reported that in spite of writing two detailed letters the respondents have not cared to impart instructions and none is present on their behalf.

2. The learned counsel for the petitioner argued that the request of the petitioner for inclusion of 10 kg of medicinal opium powder in Form DD-5 was sanctioned by the then Director but in the meanwhile unfortunately the said Director was transferred and he was succeeded by respondent No. 3, who nursed ill-will towards the father of the managing partner of the petitioner and he got the file destroyed/misplaced. It is added that respondent No. 3 was indirectly involved in case F.I.R. No. 28 of 1993, P.S.I Mozang, Lahore, therefore, .he wanted to secure the record in order to destroy the proof against him and he accordingly sent a letter to the father of the Managing Director of the petitioner, who had retired as ETO from the Department. The letter was duly replied and he was informed that the record was in his custody as per direction of the Court. It is added that in order to wreck this vengeance respondent No. 3 at least 5 times got the pension papers of the father of the Managing Partner of the petitioner misplaced. The respondents have neither filed any written statement nor any argument was addressed by the learned Additional Advocate-General rightly because he was not given any instructions. The case was kept fox orders when the learned Additional Advocate-General appeared in the Chamber and stated that he after return to his office has again contacted the respondents and now present Director has come. The learned Additional Advocate-General was directed to appear alongwith the said Director and the case was re-listed for today. The learned Additional Advocate-General has appeared and submitted that the file is not forthcoming, therefore, the matter may be remanded and the same shall be decided afresh within the shortest possible time. It is added that the letter dated 17-10-1993 is a forged and fabricated document.

3. I have given my anxious consideration to the arguments addressed on behalf of the parties and gone through the record. The petitioner has clearly alleged that the inclusion of 10 Kg. of medicinal opium powder in its DD-5 licence was duly approved by the Director and placed on record a photostat copy of the said order. The petitioner is already holding DD-5 licence since 30-5-1993. It is, therefore, clear that it was already entitled to hold this licence and has not misused it. Now the question is only inclusion of medicinal opium powder in this licence. The respondents have failed to even canvass anything disentitling the petitioner from grant of any licence. On the other hand, it was maintained in the para-wise comments that "Had the case been recommended by the Director, Excise and Taxation then there was no point for keeping the matter pending for issuance of final order"? The petitioner has clearly alleged that the sanction was granted by Mr. Saleem Jamil, the then Director, Excise and Taxation, Lahore Division, Lahore. The respondents have not filed any affidavit of the then Director to the effect that the order was not issued by him. This is not all. A copy of the order was placed on record in November, 1996. The respondents have failed to produce anything showing this letter forged and fabricated document. On the other hand, it bears diary number and official seal. The present Director Excise and Taxation has appeared today without any record whatsoever.

4. It is difficult to accept the story that the file was lost because if it was so then the petitioner could have been informed and the file reconstructed. The story seems to be false because no particular as to the stage and date of alleged loss have been given. The respondents were the custodians of the record and they ate liable to account for any loss of such record. The allegation that respondent No. 3 five times destroyed the pension papers of the father of the Managing Partner, have not been denied while his interest to retrieve the document subject-matter of F.I.R. No. 28 of 1993 is proved by Annexures 'G and H' with the writ petition. Therefore, he had to knock at the doors of Punjab, Service Tribunal to secure his pension. Mala fide is established beyond any shadow of doubt.

5. In the end, it was argued that 10 Kg. per month is a huge quantity and the petitioner is likely to misuse the same. Suffice it is to observe here that the, petitioner is in this business for the last over 2 decades. The respondents have failed to bring anything on record as to any malpractices by the petitioner. This is not all. The apprehension is not real and in any case the Government Agencies have ample power to stop the misuse of any of the raw material given to a Pharmaceutical concern for the manufacturing of drugs. This grant is subject to all control and restrictions.

6. The upshot of the above discussion is that this writ petition is accepted with costs. The result is that the respondents are directed to include 10 Kg. per month of medicinal opium powder in licence DD-5 of the petitioner. C.M.S./M-364/L ??????????????????????????????????????????????????????????????????????????????? Petition accepted.