2002 PLP 1612 (YLR)

I intend to decide the following writ petitions by one consolidated order having similar facts and law:‑‑‑

1. Writ Petition No. 1779 of 2002,

2. Writ Petition No. 1799 of 2002,

3. Writ Petition No. 1800 of 2002,

4. Writ Petition No. 1801 of 2002.

2. Learned counsel of the petitioners submit that impugned orders were passed by the Punjab Quality Control Board against the petitioners without providing proper hearing to the petitioners. They further urge that impugned orders were passed by the Punjab Quality Control Board without giving any reasons. Mr. Fowzi Zafar, learned A.A.‑G. submits that during the pendency of the writ petitions, under the direction of Punjab Quality Control Board the Inspectors have got cases registered against the petitioners. Therefore, the writ petitions have become infructuous. In the interest of justice and fair play directions be issued that investigation of the cases be conducted by officer not less than the rank of Superintendent of Police. The learned counsel of the Punjab Quality Control Board submits that impugned orders were passed against the petitioners after providing proper hearing to the petitioners. Either the petitioners themselves entered appearance before the Punjab Quality Control Board or their representatives had entered appearance. He further submits that impugned orders are of interim nature. Therefore, Punjab Quality Control Board is not bound to give reasons while passing the impugned orders. The Punjab Quality Control Board should have to give reasons at the time of passing final orders against the petitioners. The Punjab Quality Control Board has only given direction to the Inspector to get the case be registered against the petitioners. The petitioners are well within their right to appear before the Investigating Officer who of course shall consider the counter version of the petitioners and then proceed with the matter in accordance with law. Learned counsel of the private respondents submit that impugned orders were passed after providing proper hearing to the petitioners and the private respondents. The Punjab Quality Control Board after perusing the record and after hearing the concerned parties passed the impugned orders Therefore, the contentions the learned counsel of the petitioners that Punjab Quality Control Board should have given reasons in support of the impugned orders has no force. They further urge that there is no provision under the Drugs Act and rules framed thereunder that Punjab Quality Control Board should have given reasons in support of the impugned orders.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. The preamble of the Drugs Act reveals to regulate the import, export, manufacture, storage, distribution and sale of drugs. It is better and appropriate to mention the scheme of the Act to resolve the controversy between the parties. In order to test the accuracy of the submissions it is necessary to mention relevant provisions of the Drugs Act, 1976. The relevant provisions of law with respect to initiation of the criminal proceedings are contained in sections 11, 17 to 19, 22, 23, 27 and 30 read with rules 3, and 4 of the Punjab Drugs Rules, 1988. On the basis of aforesaid provisions of law and rules Punjab Quality Control Board or the Central Licencing Board or the Registration Board, as the case may be, and it is after scrutiny by the Board of the material and report of the Government Analyst that the Board has to issue instructions to the Drug Inspector as to the appropriate action to be taken on such report either the prosecution may be dropped or the prosecution case can be ordered to be launched. Thus on the orders from such Board as to the action to be taken in respect of such contravention that a complaint can be filed before the Drug Court which shall take cognizance of the same. It is better and appropriate to reproduce section 11(5)(b) of Drugs Act. "to scrutinize the reports of Provincial Inspectors in respect of contraventions of this Act and reports of the Government Analysts in respect of drugs sent to them by the Provincial Inspectors for test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports: " Provided that the Provincial Quality Control Board may specify the class of cases in which a Provincial Inspector may make a complaint to the Drug Courts, or take any other action, without the specific instructions of the Board." The legislator has specifically mentioned the word to scrutinize reports of Provincial Inspectors by the Provincial Quality Control Board. The word scrutiny mean s scrutinize, the word scrutinize interpreted by the Honourable Supreme Court in Muhammad M. Khoso's case (PLD 1994 SC 412) and defined the word scrutinize as follows:‑‑ "Word scrutinize inter alia carries the meaning to look closely by examination in detail and a detailed examination of records." The word scrutinize or scrutiny means opinion of Provincial Quality Control Board. The word opinion is interpreted by the superior Courts in Khawaja Sharif's case (PLD 1988 Lahore 725) and laid down the following meaning:‑‑ "To my mind the word opinion conceivably has been inducted to delimit the scope of discretionary powers. " Similarly the word opinion is defined by the A Honourable Supreme Court in Abul Aala Modudi's case (PLD 1964 SC 673) and laid down the following meaning:‑‑ "It is the duty of Provincial Government to take into consideration all relevant facts and circumstances. " The Division Bench of Karachi High Court has given following meaning to the word opinion in Star Rolling Mills case (PLD 1974 Note 129 at page 189). "It must be an honest opinion or conviction based on tangible material capable of sustaining such opinion and not a mala fide opinion or a colourable exercise of statutory power. "Sections 11(5)(b) arid 19(6) of the Drugs Act read with rule 4(3) of the Drug Rules, 1988 duty cast upon the Provincial Quality Control Board e that Provincial Quality Control Board pass the order with fully conscious application of mind and not in a mechanical manner without applying his mind. It is the duty and oligation of the public functionaries to act justly fairly, equitably, reasonably without any element of discrimination and squarely within the parameters of law as is envisaged by Article 4 of the Constitution. After addition of section 24‑A in the General Clauses Act it is the duty and obligation of the public functionaries to pass the impugned orders with reasons. In arriving to this conclusion I am fortified by the following judgments:‑‑ (1) Messrs Airport Support Services case (1998 SCMR 2268); (2), Zain Yar Khan's case (1998 SCMR 2419); (3) Town Committee's case (KLR 2000 Civil' Cases 389); (4) Star Textile Mills Ltd.'s case (1999 MLD 3001). It is the duty of Provincial Quality Control Board to pass the order after scrutinizing the record available before it but the impugned orders do not reveal that Provincial Quality Control Board passed the orders after proper application of mind after scrutinizing the record. This fact brings the case in the area that the Provincial Quality Control Board countersigned the order of the Inspector which is, not sustainable in the eyes of law as .per principle laid down by the Honourable Supreme Court in Ghulam Mohy‑ud‑Din's case (PLD 1964 SC 829). The impugned orders were not passed by the Provincial Quality Control Board in terms of section 11(5)(b) of the Drugs Act, 1976. Therefore, the same are without lawful authority as is held by the Honourable Supreme Court in Mansab Ali's case (PLD 1971 SC 124). It. is settled principle of law that if the basic order is without lawful authority the super structure shall have to fall on ground automatically. In arriving to this conclusion I am fortified by the following judgments:‑‑ (1) Agha Nadim's case (1998 PCr.LJ 181), (2) Crescent Sugar Mills case (PLD 1982 Lah. 1), (3) Yousuf Ali's case (PLD 1958 SC (Pak.) 104).

4. In view of what has been discussed above, the writ petitions are accepted to the extent of the impugned orders passed by Provincial Quality. Control Board and the same are set aside. The parties are directed appear before the Secretary Provincial Quality Control Board on 26‑2‑2002 who is directed to place the case before the Chairman Provincial Quality Control Board who is directed to pass fresh order in accordance with law after applying independent mind himself in case he is competent to pass the order under the provisions of Punjab Drugs Act or place the same before the competent Authority for decision who is also directed to pass fresh order after providing proper hearing to all the concerned within 15 days till 13‑3‑2002. He is further directed to submit report to the Deputy Registrar (Judl:). of this Court within the. stipulated period. It is settled principle of law that this Court has ample jurisdiction to take the notice of the subsequent events at the time of deciding the writ petition as per principle laid down by the Division Bench of Karachi High Court in Nasir Jamal's case (1990 CLC 1069). It is admitted fact that when the petitioners filed writ petitions at that time the Inspector did not get the cases registered against them. In this view of the matter respondents are restrained to proceed against the petitioners on the basis of the F.I.Rs. till the aforesaid date. With these observations the writ petitions are disposed of. H.B.T./W‑51/L Petitions accepted.