P L D 2008 Lahore 446 (PLP)

SYED HAMID ALI SHAH, J.

Petitioners, through filing instant petition, have called in question the order dated 22-1-2008, on the ground that the Drugs Act, 1976, being a special law, has to be applied strictly. Learned counsel added that by virtue of sections 11(5)(b) and 11(5)(e) of the Drugs Act, 1976, the Provincial Quality Control Board is vested with power to ascertain names of the persons, who are prima facie responsible for the commission of an offence under the Act and an Inspector can institute prosecution, against such persons only. Learned counsel went on to argue that Provincial Quality Control Board, after issuance of the Show-Cause Notices to the petitioners and two others and after hearing, decided to institute prosecution against Maqbool Ahmad and Rustam Ali only. A prosecution by Drugs Inspector is competently instituted, only when the Board has ascertained and allowed the prosecution. Learned counsel, in support of his contentions, has relied upon the cases of "Messrs Salimco Laboratories and others v. The Drug Inspector, Lahore Division (Industries), Director of Health, Lahore and others" (1989 PCr.LJ 566) and "Agha Nadim v. S.H.O. and others" (1998 PCr.LJ 181).

2. Mr. Najeeb Faisal Chaudhry, Additional Advocate General (on Court's call) has entered appearance at this limine stage and has submitted that a Drug Court, established under section 31 of the Drugs Act, 1974, has all the powers conferred by the Code of Criminal Procedure, 1898, on a Court of Session, exercising original jurisdiction, as envisaged in subsection (4) of section 31 (ibid). He has further referred to subsection (6) of aforementioned section and contended that wherever a procedure, which the Act, (Drugs Act, 1976) has not provided the Court is to follow the Code of Criminal Procedure, for the trial of summons cases as by Magistrate. Having referred to section 31, learned Law Officer has submitted that section 204 of Criminal Procedure Code empowers the Court to take cognizance of an offence, when the Court is of the opinion that there are sufficient grounds for proceeding. The Court, through impugned order, has mentioned the reason for proceedings against the petitioners. Learned Law Officer, in support of his contention, has referred to the cases of Muhammad Yaqoob v. The State PLD 1998 Lahore 523, Waqarul Haq and another v. The State 1988 SCMR 1428, Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lahore 336, Nazir and 2 others v. The State and another (1990 MLD 2084), Sohno v. The State and another" (1990 PCr.LJ 1190) and Sardar Ali and others v. The State [PLD 1966 (W.P.) Lahore 790].

3. Heard learned counsel for the parties and record perused.

4. Three injections were found spurious by one Dr. Basharat Ali and were seized on Form No.4 on 4-12-2000 by the Drug Inspector. The matter was referred to Provincial Quality Control Board (PQCB) and show cause notices dated 23-5-2001, were issued to the petitioners, besides Maqbool Ahmad and Rustam Ali. The Board, after providing an opportunity of being heard, sanctioned for prosecution against Maqbool Ahmad and Rustam Ali only, vide sanction order dated 18-6-2001. Drug Inspector thereafter, filed a complaint, which is now pending before Chairman, Drug Court, Gujranwala Division at Lahore (respondent No.5).

5. Learned Court, in the course of proceedings, found that as per the statement of P.W. the injections were sold by Bhatti Medical Store, which were found without batch number and the drugs taken into possession, were without warranty and without drug sale license upon From No.11. Learned Court (respondent No.5) found that Shah Nawaz (petitioner No.1), while appearing as P.W.4, has admitted sale of Clafron injections and issuance of cash memo. (Exh.P.Z) signed by his brother Muhammad Afzal (petitioner No.2). Learned Court observed that sufficient oral and documentary material in the shape of evidence, is available on record, which incriminates Shah Nawaz and Muhammad Afzal for their involvement in the sale of injections, which were ultimately declared as spurious. Learned Court held the petitioners are to be charged for commission of offence as nothing plausible is available in their favour for exonerating them. The Court further held that petitioners have to face trial and be arrayed as accused persons in the complaint, vide order dated 22-1-2008.

6. The parties are not at variance with regard to the filing of complaint by Dr. Basharat Ali (Exh.PB), possession of sample on From. No. 4 (Exh.P.F-1), statement of Muhammad Afzal and Shah Nawaz, receipt of Bhatti Medical Store, qua sale of injections in question (Exh.P.C.), certificate of analyst on Form-C, show-cause notice to the petitioners and two others by. Provincial Quality Control Board, Government of the Punjab, Lahore and lastly the permission dated, 18-6-2001 for prosecution against Rustam Ali and Maqbool Ahmad only. There was no recommendation or permission for prosecution against the petitioners by the Board. It was during the pendency of proceedings, when Court found on the sufficient evidence, the involvement of the petitioners in the offence. The petitioners were thus ordered to be arrayed as accused persons. The Drug Court is Court of Session, for the purposes of powers conferred while exercising original jurisdiction and for the purpose of procedure by the Code of Criminal Procedure, 1898, for trial of summons as a Court of Magistrate, as envisaged by, sub-sections (4) and (6) of section 31 of the Drugs Act, 1976. Section 204 of the Criminal Procedure Code, empowers the Court to take cognizance of an offence, if the Court is of the opinion that there are sufficient grounds for proceedings. The powers of the Court, conferred under section 204, Cr.P.C., are unrestricted and wide. Reference to the case of Muhammad Yaqoob (supra) is pertinent at this stage, wherein it has been held by this Court as under:-- " .If a case is sent up for trial to the Sessions Court with brief facts of the case stated under column No.7 of the challan, the Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name finds mentioned in column No.2 or 3 of the challan or not."

7. The apex Court in the case of "Waqarul Haq alias Mithoo and another (supra), has observed that placing accused in Column No.2 means that according to Police investigation such accused persons were found innocent and were, therefore, discharged under section 63 of the Criminal Procedure Code. The Honourable Court has held that it does not mean that such accused person cannot be summoned to stand trial by the Sessions Court. A similar view was taken by this Court in the case of Sardar Ali (supra), wherein it was also observed that a Magistrate, taking cognizance of an offence, becomes seized of the entire case and seisin extends not only to the accused persons against whom challan submitted, but to other person, who might be implicated therein. High Court of Sindh, in the case of Sohno (supra) has held that Sessions Court, after having received challan and having become seized of the case, can pass an order, requiring any persons connected with the case to be joined as accused and can issue process against them.

8. The above resume of case law brings me to conclude that the Drug Court has powers of the Court of Session and as such, after having received challan and becoming seized of the case and seisin extends not only to the accused persons against whom chailan is submitted, but to other persons who might be implicated therein.

9. The cases referred by learned counsel for the petitioners, in support of his contentions, are on different facts and circumstances. The case of Messrs Salimco Laboratories and others (supra) pertains to a matter, where Provincial Quality Control Board has not accorded permission for prosecution. The question involved in this petition, is not for permission of prosecution, but of the persons involved and connected with the matter, which is pending before the Court, on the basis of permission by the Board. Similarly, the other case of Agha Nadim (supra) referred by the petitioners, pertains to the registration of a case, without permission of Quality Control Board. The case was not referred to the Drug Court, but an F.I.R. was lodged straightaway, which was quashed by learned Court. Drug Court is competent to pass an order requiring the petitioners, who have prima facie been found by the Court, connected with the case to be joined as accused and there is no restraint on such powers of the Court.

10. For the foregoing, this petition has no force and is accordingly dismissed. M.H./S-46/L Petition dismissed.