1980 P Cr (PLP)

A. REHMAN, J.‑‑Muhammad Hussain appellant was tried and convicted by the Drugs Court for Punjab and N.‑W. F. P., Lahore for having contra vened the provisions of clause (a) of section 18 read with section 27 of the Drugs Act, 1940. He was sentenced to six months' R. 1. and a fine of Rs. 500 and in default of payment of fine to further undergo R. 1. for one month by the Court vide its order dated 17‑12‑1976.

2. Briefly stated the facts giving rise to the appellant's prosecution and conviction are that on 29‑9‑1975 Mr. Munawar Iqbal, Inspector of Drugs, Bahawalpur Division inspected the appellant's medical store known as Hussain Medical Store in village Bakhshan Khan, Tehsil Chishtian. District Bahawalnagar. He took samples of Chloroquine N: W. F. P. Injection, Batch No. 59, manufactured by Messrs Kashmir Chemical Industries, Lahore. He duly filled in Form No. 17, Exh. P. A. which was also signed by the appellant. Out of four bottles which were taken as sample one was delivered to the appellant and the remaining three bottles were sealed separately. One of the sealed bottles was despatched to the Director Drugs Testing Laboratory Lahore on 11‑10‑1975 for analysis vide letter Exh. P. B. The Analyst's report dated 18‑3‑1976. Exhibit P. C. revealed that the samples did not conform to B. P. standard on account of presence of suspended material and foreign particle. After receipt of the aforementioned report Mr. Munawar Iqbal sent notice Exh. P. D. together with a copy of the Analyst's report to the appellant on 1‑4‑1976 requiring him to furnish a copy of purchase invoice and warranty with a written notice stating whether he intended to rely on the warranty. He was also required to communicate the name and address of the warrantor within seven days from the date of receipt of the notice. The appellant sent him reply to the aforementioned notice on 13‑5‑1976 vide Exh. P. G. stating that he had not been able to trace on the warranty and the invoice in spite of his best efforts. He also stated that he had purchased only a small quantity of the drug from Ch. Medical Store Christian who too had not got any warranty and invoice with them. Munawar Iqbal, Inspector of Drugs thereupon referred the matter to the Quality Control Board who vide their letter dated 15‑6‑1976 Exh. P. H. accorded sanction for the prose cution of the appellant. Formal complaint Exh. P. J. was filed by Mr. Munawar Iqbal in Court on 15‑7‑1976.

3. The appellant appeared in Court on 1‑10‑1976 when a formal charge under clause (a) of section 18 read with section 27 of the Drugs Act, 1940 was framed against him. As the appellant did not plead guilty to the charge, the prosecution examined Mr. Munawar Iqbal, Inspector of Drugs as Exh. P. W. 1 and relied on the various documents referred to above.

4. The appellant in his statement under section 342, Cr. P. C. admitted that he carried on the business of sale of drugs at Bakhshan Khan; that the Inspector of Drugs had taken samples of Chloroquine Diphosphate N.‑F. P. Injection, Batch No. 59 manufactured by Kashmir Chemical Industries, Lahore from his shop on 29‑9‑1976; that he had received notice Exh. P. D. from the Inspector of Drugs and that he had sent his reply Exh. P. G. on 13‑5‑1976. He however pleaded his ignorance as to whether the sample taken from his shop was sent to the Director, Drugs Testing Laboratory, Lahore and that the said sample did not conform to ‑B. O. P. standard. The appellant examined three witnesses in defence. Exh. D. W. 1 Khadim Hussain Dispensary, Incharge Bural Dispensary, Chak No. 95, Fateh, stated that about a year before his making the statement in Court he had prescribed Choloquine Diphosphate N. F. P. Injection for two or three patients who were suffering from malaria fever. D. W. 2 Shamshad Ahmad stated that Khadim Hussain Exh. D. W. 1 had prescribed certain medicine for his elder brother and that when he had approached the appellant to purchase the said medicine the latter had refused to sell it. The appellant also examined Muhammad Aslam an employee of Ch. Medical Store, Chistian as D. W. 3 to prove that warranty Exh. D. D. was in his handwriting and that it bore his signatures but he did not admit it to be in his hand writing nor he admitted his signature on it. 4‑A. The Court did not accept his plea that he had no intention to sell the drug in question because he had not informed Mr. Munawar Iqbal Inspector of Drugs either on 29‑5‑1975 when be had taken the samples from his shop nor on 13‑5‑1976 when he had sent reply to the notice issued by the former. He had not informed even the Court that he had no intention to sell the injection in question when his statement was recorded under section 342, Cr. P. C. on 12‑11‑1976. The appellant was, therefore, con victed and sentenced by the Court as noticed earlier.

5. The appellant has challenged the order of conviction on the ground that the Drug Court constituted under the Drugs Act, 1976, had no jurisdiction to try an offence punishable under section 27 of the Drugs Act, 1940, as there was no provision either in the Drugs Ordinance, 1976, which repealed the Drugs Act, 1940, or in the Drugs Act, 1976, which repealed the Drugs Ordinance, 1976, conferring jurisdiction on the Drug Court to try offences committed under the repealed Act. It has been further contended by the appellant that section 6 of the General Clauses Act, 1897, to which reference has been made by the Drug Court in its judgment, only saves rights, liability and remedy after the repeal of an enactment and that it does not deal with the question of jurisdiction of the forum where the rights or liabilities arising under the repealed law are to be enforced. On merits it has been contended by the appellant that since the stocking of sub‑standard drugs without a warranty is not an offence punishable either under the Drugs Ordinance, 1976. or the Drugs Act, 1976, he is not liable to be punished for allegedly being found in possession of sub‑standard drug without a warranty on 29‑9‑1975. According to the appellant there is no sufficient evidence on the record to hold him guilty of the offence with which he has been charged inasmuch as the prosecution has failed to prove that he had any mens tea and that the Court has wrongly shifted the onus of proof of innocence on him.

6. At the time of hearing of the appeal, the learned counsel for the appellant has not addressed any arguments on the merits of the case, as he has challenged the order of conviction only on legal plane inasmuch as the Drug Court had no jurisdiction to try the appellant for the offence allegedly committed by him under the Drugs Act, 1940, which had been repealed by the Drugs Ordinance, 1976 and the Drugs Act, 1976. In support of his arguments the learned counsel for the appellant has placed reliance on judgment of a Division Bench of this Court in Muhammad Ali v. The State (P L D 1980 Lab. 195) wherein a similar situation the appellant's conviction under section 27 read with section 18 (a) of the Drugs Act, 1940 was set aside on the ground that the Drug Court constituted under the Drugs Act, 1976, had no jurisdiction to try the appellant and convict him of the offence with which he was charged. The learned counsel for the appellant has also drawn our attention to an unreported judgment of this Court in Criminal Miscellaneous No. 139 of 1977 in Muhammad Siddique v. The State whereby proceedings pending before the Drug Court against the petitioner under section 27 read with section 18 (a) of the Drugs Act, 1940 were quashed on the ground that the Drug Court established under the Drugs Act, 1976, was not competent to take cognizance of offences committed under the Drugs Act, 1940.

7. Before examining the main legal issue arising in this appeal, we consider it necessary to deal with the question raised by the appellant that he was not liable to be prosecuted for the offence allegedly committed by him under section 27 of the Drugs Act, 1940 after the repeal of the said Act because we have noticed that some observations made in the case cited before us by the learned counsel for the appellant are likely to be construed in a manner that in the absence of a saving provision in the repealing enactment the provisions of clause (e) of section 6 of the General Clauses Act, 1827 would not be available to enforce a vested right or liability under the repealing enactment. While examining the question whether a vested right as contemplated under section 6 of the General Clauses Act, 1897, has accrued in favour of the State at the time of the repeal of the Drugs Act, 1940, the following observations were made: "It is clear that the object of enacting section 6 of the General Clauses Act was to protect rights and liabilities already accrued or incurred under the repealed law. The words "right accrued" occurring in section 6 of the General Clauses Act was construed by the Privy Council in Abbot v. Minister for Law (1895 A C 425) and it was held that mere right existing on the date of the repealing statute without any act done an individual towards availing himself of that right cannot appropriately be deemed a `right accrued' within the meaning of the enactment. In the instant case, the complaint was not made regarding the alleged offence committed on 27‑11‑1975 before any Magistrate competent to try the offence under section 18 read with section 27 of the Drugs Act. 1940. Therefore, a vested right or incurred liability, ac envisaged under section 6 of the General Clauses Act could not be deemed to have accrued for enforcing the same under the repealing enactment." With great respect to the learned Judges we cannot subscribe to the above view because while considering effect of repeal of an enactment on any act or omission, which ‑constituted an offence under the repealed law, it is not necessary to examine the question whether any vested right has accrued in favour of the State to prosecute the offender or not because clause (e) of section 6 of the General Clauses Act, 1897 gives a clear answer as to whether a person who has committed an offence under any enactment is liable to be proceeded against after the real of the said enactment. Section 6, clause (e) of the General Clauses Act, 1897 provides :‑. "(6) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then. unless a different intention appear, the repeal shall not‑-- (a) . . . . . . . . . . (b) . . . . . . . . . . (c) . . . . . . . . . . (d) . . . . . . . . . . (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." The legal preposition that the repeal of an enactment by itself does no obliterate the consequences of the violation or infringement of the provision of the repealed enactment which entail criminal liability unless a specific provision to that effect is incorporated in the repealing law is too well settled and requires no further examination. This is also in consonance with the basic principle of criminal jurisprudence that the question to whether any person has committed an offence or not is determined o the state of the law when the offence was committed and not on th law as it was on the date on which the prosecution was started. Criminal liability can be enforced not withstanding the repeal of the law under which the said liability has arisen is even recognized under the English Law as is evident from section 38 (e) of the Interpretation Act, 1889. Continuance of criminal proceedings initiated before the repeal of the enactment under which the said proceedings were initiated is also based on the same principle and finds support from the provisions of section 6 (e) of the General Clauses Act, 1897. The effect of repeal of the Frontier Crimes Regulation, 1901 (111 of 1901) on the pending proceedings was considered in the light of section 4 of the West Pakistan General Clauses Act, 1956 (VI of 1956) the provisions of which are identical with those of section 6 of the General Clauses Act, 1897, in Sona and another v. The State (P L D 1970 S C 264) it was observed :‑ "One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation; liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules or procedure in force at the commencement of the trial and the same procedure has to be followed." We are, therefore, quite clear in our minds that for the violation of the provisions of section 18(a) of the Drugs Act, 1940 which was punishable under section 27 of the said Act, the appellant was liable to be prosecuted notwithstanding the repeal of the said Act in view of the legal position noticed above.

8. The crucial legal issue in the present appeal, however, is whether the appellant could have been tried by the Drug Court constituted under the Drugs Act, 1976 for an offence committed by him under the Drugs Act, 1940 after the repeal of the said Act. In this connection it is necessary to examine the relevant provisions of the, Drugs Act, 1940. Section 18(a)(i) provided‑~‑

18. Prohibition of Manufacture and Sale of Certain Drugs.‑From such date as may be fixed by the Provincial Government by notification in the official Gazette in this behalf, no person shall himself or by any other person on his behalf‑ (a) manufacture for sale, or sell, or stock or exhibit for sale or distribute‑ (i) any drug which is not of standard quality : . . . :" Section 27 of the Act which provided penalty for the contravention of any provisions of the Act was as under "

27. Penalty for manufacture, sale etc., of drugs in contravention of this Chapter.‑Whoever himself or, by any other person on his behalf manufactures for sale, stocks or exhibits for sale, or distributes any drug in contravention of any of the provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment which may extend to three years or with fine, or with both.", Section 32 dealt with the cognizance of offences. It provided‑ "

32. Cognizance of offences.‑(1) No prosecution under this Chapter shall be instituted except by an Inspector. (2) No Court inferior to that of a Magistrate of the first class 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 against this Chapter."

8. The appellant in the present, case was found to have exhibited Thloroquine Diphosphats N. F. P. Injection, Batch No. 59 which was not of standard quality for sale in his shop on 29‑9‑1975 when Mr. Munawar Ali, Inspector of Drugs inspected his shop. Although the complaint was filed by the Inspector of Drugs in Court on 15‑7‑1976 when the Drugs Act, 1940, had been repealed, the appellant was tried for having committed an offence under section 18(a) read with section 27 of the Drugs Act, 1940, as the said Act was in force when the offence was committed by the appellant could be legally tried for the offence committed by him notwithstanding the repeal of the Drugs Act, 1940. The question which, however, requires determination is whether Drug Court constituted under section 31 of the Drugs Act, 1976, had jurisdiction to try \ the appellant for the offence committed by him under the repealed Act or not. It is necessary to examine the relevant provisions of Drugs Act, 1976 which deal with the cognizance of offences. Section 30 of the aforementioned Act runs as under :‑‑‑ "

30. Cognizance of offences.‑(I) 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 clause (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 manu facture 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 Proce dure, 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."

9. It has been contended before us by the learned counsel for the appellant that neither section 30 of the Drugs Act, 1976, reproduced above nor any other provision of the said Act confers jurisdiction o the Drug Court to try an offence. under any other law including the Drugs Act, 1940, which has since been repealed. It is evident that after the repeal of the Drugs Act, 1940, a new forum has been provided for the trial of offences under the law which has replaced the said Act. The change of forum certainly falls within the realm of procedural law and any amendment made in the procedure unless it is provide to the contrary in the new law, has to be given effect to retrospectively a it is well settled .that the rule that a statute, in the absence of express words to that effect is not to be construed as having retrospective operation is inapplicable where the statute deals with‑ matters of procedure only. It is also a well‑settled proposition that there is no vested right in having a case tried by the tribunal which has been deprived of jurisdiction by a sub sequent enactment because such a right pertains to the procedural law and not to the vested right. Craies on Statutes Law, 6th Edn., p. 400, quotes the following observations of Jessel M. R. : In re: Joseph Sucha & Co. Ltd: ((1975)1 Ch D 48): "It is a general rule that when the Legislature alters the rights of the parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions do not affect them: But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights and action." He also quotes Lord Blackburn in Gardner v. Lucas ((1878) 3 A C 582): "It is perfectly settled that if the Legislature forms a new procedure, that instead of proceeding in this form or that; you .should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of proce dure. . Alterations in the form of procedure are always retrospective.

10. The aforementioned principle that any change in the law relating to procedure and form has to be given effect to retrospectively may, how ever, be departed from either by making an express provision in the law or by necessary intendment. A careful examination of the provisions of section 30 of the Drugs Act, 1976, reproduced above would indicate that subsection (3) of the said section which provides for the transfer to a Drug Court any case which may be pending in any Court immediately before the establishment of the Drug Court. In other words jurisdiction of the Drug Court to try cases arising under the Drugs Act, 1940, which normally would have bee available in view of the general principle that procedural laws are retrospec tive in operation was restricted to only such cases which were pending i Courts before the establishment of the Drug Court under the Drugs Act 1976. Legislature did not deem it fit to allow the new forum to be set u under the Drugs Act, 1976, to have jurisdiction to try offences which ha been committed under the Drugs Act, 1940; but in respect of which no com plaint had been made before any Court as otherwise there was no necessity to make a specific provision to confer jurisdiction on the new forum to deal with cases which were pending before any other forum immediate before the establishment of the now forum. The appellant's case had no come up before any Court after the repeal of the Drugs Act, 1940, and before the‑ establishment of the Drug Court under section 31 of the Drugs Act, 1976. The provisions of subsection (3) of section 30 of the Drugs Ac 1976, which were pending before any other Court immediately before the establishment of the Drug Court were, therefore, inapplicable. It has been noticed that under section 32 of the Drugs Act, 1940, any offence commit ted under the Act was triable by a Magistrate of the First Class. The appel lant was alleged to have violated the provisions of section 18(a) of the Drugs Act, 1940, and had thus committed an offence punishable under section 27 of the said Act. He was liable to be tried for the above offence in the Court of a Magistrate of the First Class but before a complaint could be filed against the appellant the Drugs Act, 1940, was repealed and under the Drugs Act, 1976, which repealed the Drugs Act, 1940, a new forum was to be set up for trying offences committed under the new law. Although mere change of forum is to be regarded as a change in the pro cedural law, yet in the appellant's case the change of forum had also affected his right to challenge the order which the forum under the repealed law could have passed against him inasmuch as in the event of conviction by a Magistrate of the First Class he had a right to file an appeal against the' order of conviction in the Court of Sessions Judge and after the dismissal of his appeal he had also a remedy of challenging it in revision in the High' Court. Under the Drugs Act 1976, a person convicted by the Drug Court has only one remedy and that ‑ is by way of appeal in the High Court a provided In subsection (7) of section 31 of the Drugs Act, 1976. Obviously the new law has taken away the right to challenge the order of conviction. after the dismissal of appeal, which as noticed above, was available under the old law. The rule that all changes in the procedural law are given effect to retrospectively, would not be applicable where a change in the proce dural law also affects a vested right which1ad accrued under the old la unless an' express provision to take away such right has been made in the new law. In this respect ‑we are in complete agreement. with the following observations made by Muhammad Afzal Zullah, J. in Alif Din v.Shaukat Ali (P L D 1969 Pesh.62): "In my view whenever the change of forum is in addition to dealing with purely procedure, and it also affects the existing rights of the parties as to the continuance or culmination of certain proceedings in the existing forum, the change of forum may not be retrospective unless it is made retrospective by clear words used. or clear intendment shown in the amending Act. For example, where the remedies available in the earlier forum or against the deci sion of the earlier forum are more substantial or are more in number than the remedies provided in or against the decision of the new forum, in my view the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that; and thus will not be retrospective."

11. We may also deal with a ‑possible argument that the object of the Legislature in making provision in subsection (3) of section 30 of the Drugs Act, 1976, referred to above was to confer jurisdiction on the Drug Court to be established under the Act to try cases which were pending before any Court before the establishment of the Drug Court and that it was not considered necessary to make any specific provision with regard to cases which were only at the inquiry stage and in which complaint had not been filed in Court as the Drug Court to be constituted under the new law had jurisdiction to try the aforementioned cases. We find no force in this argument as the provisions of subsection (3) of section 30 of the Drugs Act which confer jurisdiction on the Drug Court to try cases as were pending before any Court before the establishment of the Drug Court are to be construed strictly. , It is one of the well‑recognised principles of interpretation of statutes that all the penal enactments must be construed strictly and in favour of the subject as it is based on the principle that the power of punishment is vested in the Legislature an not in the judiciary. A provision of law which deals with the jurisdiction of a Court . to try an offence also falls within the category o a penal statute. If there is a reasonable interpretation which will avoid the penalty in a particular case the Court must adopt that construction. In the light of this principle of construction of a penal statute, the provisions of subsection (3) of section 30 of the Drugs Act, 1976 will have t be interpreted in a manner that what has not been specifically provided therein is not imported there. If the intention of the Legislature was t confer jurisdiction on the Drug Court to try offences which had been committed under the Drugs Act; 1940, there was no necessity having an provision including the provisions of subsection (3) of section 30 of th Drugs Act, 1976 by which jurisdiction was specifically conferred on the Drug Court to try cases which were pending in any other Court before the establishment of the Drug Court, because under the general principle that procedural laws are retrospective in operation the Drug Court would have got jurisdiction to try all cases which had arisen under the repeal enactment. By making a specific provision to confer jurisdiction on the Drug Court to try only such cases which had arisen under the repealed enactment but which were pending in any other Court before the establishment of the Drug Court, Legislature clearly intended to restrict the jurisdiction of the Drug Court to the aforementioned category of the cases and left all other cases to be dealt with according to the provisions of the repealed enactment.

12. For the foregoing reasons, we are of the view that the trial o the appellant by the Drug Court constituted under section 32 of the Drugs Act, 1976, for an offence committed by him under section 18(a) read wit section 27 of the Drugs Act, 1940, and his conviction for the said offence is illegal and without jurisdiction.. The order of conviction and sentence q passed against the appellant by the Drug Court on 17‑12‑1976 is not legally sustainable. We, therefore, allow this appeal and set aside the order of conviction and sentence passed against the appellant. As the appellant is on bail, we discharge the bail bond executed by him. Appeal allowed.