1985 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No.296 of 1981 and Criminal Revision No. 340 of 1981 for the enhancement of sentence arise from the judgment of Drugs Court for Punjab and N.‑W.F.P., Lahore, whereby, Muhammad Saeed appellant was convicted under section 27(4) for the Drugs Act, 1976 and sentenced to 6 months' R.I. and a fine of Rs.5,000 in default thereof to further R.I. for 3 months. We propose to dispose of these two matters through single judgment.

2. The facts giving rise to the appeal and the connected revision are that a complaint was filed before learned Drug Court for Punjab and N.‑W.F.P against Muhammad Seeed appellant under section 27(4) of the Drugs Act, 1976 on the allegations that on 17‑8‑1376 he was keeping In his possession for sale Vitamin B. Complex Injection, Hatch No.403221, labelled as manufactured by Sidus Sipic Rome, Italy, which drug subsequently on analysis was found to be substandard and containing large amount of suspended and foreign particles and not fit for human consumption and further that he did not possess warranty in the prescribed form in respect of the said drug. The appellant appeared before the Court and made following statement:‑ The trial Court treating this statement as confession of the commission of the offence, convicted the appellant under section 27(4) of the Drugs Act, 1976 and sentenced him to 6 months' R.I. and a fine of Rs.5,000 or in default thereof to further R.I. for 3 months. Feeling aggrieved the appellant filed appeal. When the appeal came up before Division Bench of this Court, a suo motu notice for the enhancement of the sentence was issued to the appellant.

3. Learned counsel for the appellant contended that the trial having not been conducted in accordance with the provisions of section 242, Cr.P.C., the trial Court could not have recorded conviction on the so‑called confession of the appellant and as such, no question of enhancement does arise. Learned counsel for the Stale has riot been able to controvert the contention of the learned counsel for the appellant.

4. We have considered the submissions made by the learned counsel for the parties with care. We feel persuaded by the arguments of the learned counsel for the appellant. We find that under section 31 (6) of Drugs Act, the trial of the appellant under section 27(4) of Drugs Act, 1976 was to be conducted in accordance with the relevant provisions of Criminal Procedure Code. The relevant provision is section 242, Cr.P.C. which reads as under:‑ Section 242.‑‑ Charge to be framed.‑‑ "When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged." Since in the case in hand no charge was framed, therefor, the question of the conviction of the appellant on his statement recorded by the trial Court could not arise, and as such, the conviction and sentence of the appellant is liable to be set aside on this score alone.

5. For what has been stated above, the judgment of the trial Court, dated 13‑5‑1981 is, hereby set aside. The case is sent back to it, for proceeding in accordance with law. The appeal and the revision are disposed of accordingly. M. A. K. Case remanded.