P L D 1967 Karachi 80 (PLP)

NOORUL ARFIN, J.-This is an acquittal appeal by the Additional Advocate-General, West Pakistan, against the order of the First Class Magistrate, Tando Muhammad Khan by which he acquitted the respondent Muhammad Siddiq of the offence under section 27 of the Drugs Act, 1940. The following are the relevant facts concerning this case.

2. The respondent Muhammad Siddiq carries on the business of manufacture of drugs at Lahore under the name of Unison Chemical Works. He supplied Tincture Benzoin to Taj Medical Store of Tando Muhammad Khan. under his invoice No. 8810 dated 16-10-1961. On 6-8-1962, the Inspector of Drugs Hyderabad purchased four bottles of this Tincture Benzoin from Taj Medical Store for the purpose of chemical analysis. One of these bottles was sent to the Analysis and Chemical Examiner of the Government of West Pakistan, Karachi, who certified that the drug was not of standard quality. Muhammad Khan the proprietor of Taj Medical Store was then prosecuted under the Drugs Act. During his trial, it was discovered the Tincture Benzoin, which had been purchased by the inspector of Drugs from this person, had been supplied by the respondent. The trial of Muhammad Khan resulted in his discharge. But the Inspector of Drugs, Hyderabad, instituted prosecution against the respondent on 9-8-1963 under section 27 of the said Act. By the impugned order the trial Magistrate found that Muhammad Siddiq had manufactured and sold the Tincture Benzoin in question to Taj Medical Store, but held that it had not been proved that this drug was not of standard quality or that Muhammad Siddiq had committed any offence. The acquittal of the respondent is based mainly on the interpretation of section 25 of the Drugs Act. According to the learned Magistrate, the report of the Government Analyst and Chemical Examiner could be treated as evidence against the respondent only if its copy was supplied to him and he had failed to notify in writing within 28 days of its receipt that he intended to adduce evidence to disprove the facts stated in the report. It is the admitted position that no copy of the report was in fact supplied to the respondent.

3. Section 25 of the Drugs Act reads as under:- "25 (1).-The Government Analyst to whom a sample of any drug has been submitted for test or analysis under sub section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the warrantor, if any, named under the proviso to subsection (3) of section 19 and shall retain the third copy for use in any prosecution in respect of the sample. "(3).-Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4)

4. We are of the view that subsection (3) of section 25 has not been correctly read by the trial Court. This subsection is divisible into two parts as under: (i) The report of the Government Analyst is evidence of facts staked therein ; (ii) This evidence becomes conclusive unless the person from whom the sample was taken or the warrantor has, within 28 days of the receipt of a copy of the report, notified in writing to the Inspector or the Court that he intends to adduce evidence in controversion to the report. The effect of the second part of subsection (3) on the respondent' case is only this--that the report cannot be treated as conclusive evidence against the respondent as no copy of the report was supplied to him. But under the first part of the subsection, there is presumption that the facts stated in the report are correct. This presumption, unless rebutted by contrary evidence, can be a sufficient basis for the conviction of an accused.

5. There was sufficient evidence before the lower Court to justify the conviction of the respondent under section 27 of the Act. The Inspector of Drugs stated in his evidence that he took from Taj Medical Store, as samples, four bottles of Tincture Benzoin bearing the labels of Unison Chemical Forks, Lahore. According to him, P. W. Muhammad Khan, proprietor of this store, produced the invoice showing the purchase of these drugs from the respondent. One of these bottles was sent to the Government Analyst whose report, produced as Exh. 2, certified that the Tincture Benzoin was not of standard quality under the Drugs Act, 1940 and the rules thereunder, in that its total solid was 11 % W/V instead of 16 to 20 % W/V. P. W. Muhammad Khan corroborated the Inspector's evidence and stated that the drug in question had been supplied to him by the respondent. The respondent, in his examination in the lower Court, admitted that he was the proprietor of Unison Chemical Works, Lahore, and that he supplied Tincture Benzoin to Tai Medical Store of Tando Muhammad Khan. He also stated that the bottle shown to him in the Court had the label of his company, but pleaded that the drug supplied by his company are sealed in bottles and that the bottle shown to hint in the Court did: not bear such a seal. It was thus suggested that the contents of the bottle were not supplied by his company. This suggestion implies that these contents were not of the standard quality. The respondent examined his employee, Tufail Muhammad, in the defence. This witness stated that the drugs containing rectified spirit were jointly sealed by his employer's company and by the Excise Department, and that thin seal remained in the custody of the Excise Department. According to him, drugs containing only methylated spirit, such as Tincture Benzoin, are sealed by the company. It was not explained as to how it was possible to use the seal in this way when the seal remained in the custody of the Excise Department. This witness produced sealed samples of the drugs containing rectified spirit but admitted that he could not obtain any sealed sample of the drugs containing methylated spirit. The evidence of Muhammad Khan P. W. 2 shows that the same bottles as were supplied by Unison Drug Work were taken by the Inspector.

6. The report of the Government Analyst and testimony of the Inspector of Drugs and of P. W. Khan Muhammad, the proprietor of Taj Medical Store, and the respondent s own admission, are sufficient evidence of the fact that the respondent' manufactured for sale and distributed Tincture Benzoin of a standard which was in contravention of the provisions of the Drugs Act, 1940 and the rules thereunder. The case set up in defence suffers from inherent weakness and has not succeeded in rebutting the prosecution evidence. We are, therefore of the view that the respondent is guilty of the offence with which he was charged.

7. For the above reasons, we accept this appeal and set aside the order of the Civil Judge and F. C. M., Tardo Muhammad Khan, dated 11th May 1954 and find the respondent guilty of the offence under section 27 of the Drugs Act, 1940. As about four years have elapsed since the commencement of the prosecution, we are of the opinion that it will not be appropriate to impose a sentence of imprisonment on the respondent. We, therefore, sentence the respondent to a fine of Rs. 500.00 (Rupees five hundred) and further order that in default of payment of this fine, the respondent will undergo simple imprisonment for s' months. K. B. A. Appeal accepted.