1990 P Cr (PLP)

Through this Constitutional petition the petitioners seek quashment of F.I.R. No.202/89 registered at Police Station City Chiniot under section 27(2)(b) of the Drugs Act, 1976, in pursuance to order passed by the A.C. on the application made by respondent No.3.

2. According to allegations as contained in the said report, the nephew of the complainant was suffering from eye disease and Dr. Abdul Khaliq Manghat on 12-6-1989 prescribed medicine for him which was purchased from the Medical Store of the petitioners. According to the F.I.R. the use of the medicine purchased firm the petitioners' Medical Store further aggravated the disease. The said doctor was again consulted who after examining the medicine informed the respondent No.3 that the period for the use of the same had already expired.

3. Learned counsel for the petitioners argued that even if the allegations as contained in the F.I.R. are taken to be true for the sake of argument without, however, conceding its correctness, the case as made out against the petitioners was a case of sale ()f a drug after its expiry date which is prohibited under section 23(1)(vi). According to him under section 30 of the Act no prosecution,, could be instituted except by a Federal Inspector or by a Provincial Inspector. He also submitted that under section 30(2)(x) the offence which has been made out in the F,I.R. was non-cognisable and under clause (b) of this subsection no Court other than the Drug Court has been conferred jurisdiction to try an offence punishable under the Drugs Act.

4. I have considered the argument. It is manifest from a bare reading of the F.I.R. that it was a case of sale of drug after its expiry date. The provisions of the Drugs Act referred to by the learned counsel for the petitioners clearly provide that no prosecution can be instituted in respect of an offence under the Drugs Act except by a Federal Inspector or a Provincial Inspector as provided in section 30 of the Act. The offence as made out in tile F.I.R. was non-cognisable, as such, under section 155 of the Criminal Procedure Code the only course open to the concerned Police Officer was to have entered in a book the substance of the information and referred the same to the Magistrate as required under section 155, Cr.P.C. Under subsection (2) of this section no Police Officer has been authorised to investigate a - non-cognisable case without the order of the Magistrate 1st or 2nd Class having power to try such case. Under section 30(2)(b) the case was exclusively triable by Drug Court, therefore, no Magistrate of 1st or 2nd Class under the Cr.P.C. was competent to try the case, as such no order by such Magistrate could be passed authorising the police authorities to investigate the case.

5. Learned Assistant Advocate-General when questioned was unable to support the order passed by the A.C. directing the S.H.O. on the application of respondent No.3 for registration of F.I.R. and investigation of the case in pursuance thereof.

6. Faced with this situation learned counsel for respondent No.3 submitted that there was also allegation that the use of the drug damaged the eyes of the patient, therefore, the bottle may ultimately be found to have contained no drug but other poisonous matter which may not be a case under the Drugs Act. If the case of respondent No.3 was that it was not a case of sale of drug after the date of expiry and that the eyes of the patient were damaged by wrongful act of the petitioners, it will be open to the said respondent or any person affected to seek remedy both on civil and criminal side by appropriate proceedings. The case as made out in the F.I.R. is the case of alleged sale of a drug after date of its expiry, which falls under the Drugs Act. and as noticed above was covered by Drugs Act and the offence was non-cognisable and the prosecution could be instituted only by Drug Inspector, as such, the registration of F.I.R. as also the investigation in pursuance thereof being conducted by the Police Officers, are without jurisdiction B and devoid of any authority legally vested in them.

7. The writ petition is accepted, F.I.R. No 202/89 registered at Police Station City Chiniot under section 27(2)(b) of the Drugs Act against the petitioners and investigation and further proceedings in pursuance thereof are hereby declared to have been taken as without lawful authority and of no legal effect which are hereby quashed. There will be no order as to costs.

8. It may be clarified that this judgment shall not be understood to debar the institution of prosecution against the petitioners under the Drugs Act as provided in the said Act. The petitioners may approach the concerned authorities under the Drugs Act to institute prosecution which matter shall be dealt with and decided in accordance with law. H.B.T./J-74/L Petition accepted.