2024 PLP 937 (MLD)

Shams Mehmood Mirza, J.

This writ petition calls into question order dated 01.1 1.2023 passed by the Provincial Quality Control Board (the Board) as also reports of the Drug Testing Laboratory.

2. The petitioner manufactures a drug called "Calpol", a sample whereof was sent to the Government Analyst, Drug ' Testing Laboratory, Lahore by the Inspector of Drugs. The Drug Testing Laboratory in its report dated 21.04.2020 declared the said sample to be substandard. At the request made by the petitioner, the Board directed retesting of the sample by the National Institute of Health, Islamabad. The drug in question was once again found to be substandard by the National Institute of Health, Islamabad through its report issued on 26.03.2021. A show cause notice was accordingly issued to the petitioner by the Board on 04.09.2023 to which a reply was filed objecting to the two drug testing reports. The Board, however, did not accept the validity of the objections put forward by the petitioner and issued directions to the drug inspector to initiate the complaint before the concerned drug court against the petitioner and its employees.

3. Learned counsel submits that both the reports gave widely different assay results and as such no credibility can be attached to the said reports. It is also the case of the petitioner that the Board granted extension of the time to the Drug Testing Laboratory in violation of section 24 of the Drugs Act, 1976 (the Act).

4. Section 11 of the Act has constituted various Provincial Quality Control Boards which are composed of experts on the subject. By virtue of Rule 5 of the Punjab Drugs Rules, 2007 (the Rules), the Board on examination of a case sent to it by the Drug Inspector shall issue a show cause notice to the person in order to provide him an opportunity of hearing before taking the action recommended to be taken against him. In this manner, a mechanism has been provided to provide an opportunity of hearing to the person against whom, inter alia, prosecution is intended to be initiated. The show cause notice is issued on the basis of the report of the Government Analyst, Drug Testing Laboratory declaring the drug to be either spurious, substandard or adulterated.

5. It is not in dispute that both the reports declared the sample of the drug in question to be substandard. The Act provides a procedure to provide an opportunity to the drug manufacturers to put forward their defence before the Board when their drug has been found to be spurious, substandard or adulterated. This is a step prior to the initiation of criminal proceedings and if the Board is not satisfied with the defense put forward by the person who has prima facie committed the offence under the Act. In the present case, the Drug Inspector is directed to initiate criminal proceedings before the Drug Court. The reasons for initiation of criminal proceedings against the petitioner have been given in the impugned order. The Board took a conscious decision in granting permission for prosecution of the petitioner and its employees after granting hearing to the concerned parties. This Court in the exercise of its constitutional jurisdiction cannot substitute its opinion for that of the Board which is the specialized body for making determination on matters in issue in this petition. The learned counsel submits that by virtue of section 22(4) of the Act the report of the Government Analyst is conclusive evidence and as such the petitioner shall be prejudiced in case the matter goes to trial. The submission so made is not tenable. Section 22(4) of the Act itself provides that the person who is accused of committing an offence under the Act has a right to adduce evidence in contravention of the report.

6. The petitioner shall have all the remedies available to it before the drug court for impugning the veracity of the reports of the two Laboratories.

7. In the circumstances, this Court is not inclined to interfere in the orders/reports impugned in this writ petition. This writ petition is accordingly dismissed. MQ/G-5/L Petition dismissed.