P L D 1997 Peshawar 49 (PLP)

Saulat Hussain, D.A.G. for the State. Date of hearing: 26th June, 1995. The learned Chairman and Members of the Drugs Court N.‑W.F.P., Peshawar through their judgment, dated 14‑2‑1995 found Muhammad Ayub son of Muqaddar Shah appellant guilty under section 27(1)(a) of the Drugs Act, 1976 and sentenced him to imprisonment for three years and a fine of Rs.10,000 on account of selling spurious and unregistered drug named voltaren, 4 strips (40 Tablets) whereof were recovered by Mr. Sabir Ali, Divisional Drug Inspector. He has come up in appeal.

2. The charge is two‑fold. One, that the drug is not registered and the other that it was spurious. Apparently the drug is manufactured at Karachi under licence from C.I.B.A. Geigy of Switzerland. It was bound to be registered with the Federal Government for which the authority concerned could have been easily produced alongwith registers thereof to prove whether or not the drug has been registered under the patent name of Voltaren. No such officer concerned of the Federal Government alongwith registers was produced by the prosecution to prove that the drug was not registered. This was despite the fact that this drug is generally available in the market under the same Trade name and with name of the Company under licence whereof it is manufactured at Karachi. The factum of non‑registration is not proved by the prosecution at all.

3. Word "spurious" is elaborately define 4 in the Dangerous Drugs Act and simply includes a drug that does not contain the ingredients of the drug, as such. It is a matter of scientific analysis and only a public Analyst duly authorised under the law can give report to that effect. The sample taken into possession from the shop of the appellant was never sent to the Public Analyst for proper analysis nor any such Public Analyst was ever examined in Court. Without the examination of such Public Analyst and without his having ever been subjected to cross‑examination one cannot come to a legal conclusion that any report of such public analyst stands proved in accordance with the law on the subject.

4. No sample of the recovered drug at the time of recovery was handed over to the accused in sealed condition so that in case of any irregularity he could have a chance for comparison. Moreover, the sample for the purpose of so‑called analysis was for the first time sent to the Quality Control Board as later as four years after the recovery and hence no credence at all can be attached to the report, if any, which was never proved, as such.

5. An argument could have been advanced, which it was not, that the report of Public Analyst was admissible without his examination under section 510 of the Cr.P.C. but this is also irrelevant because no such repot of the Public Analyst/Chemical Analyst is at all on record. Over and above, no one from among the officers of Quality Control Board were ever examined in the trial Court. We are of the firm view that the spuriousness of the drug is also not proved at all.

6. Mr. Sabir Ali, Divisional Drug Inspector is the complainant in the instant case as well as the Prosecutor. The whole conviction is based on the point of recovery alone and on the solitary statement of Sabir Ali, D.D.I., Another Muhammad Aslam Azam is produced as (P.W.1) but he too is a witness examined in toto by the prosecution cannot be taken as witness for registration or otherwise of the drug and for the spuriousness thereof. No case can ever be considered proved on the solitary statement of the complainant who has been at the same time a prosecutor and who, in his capacity as Drug Inspector, cannot hold the status or qualification of a public/Chemical Analyst. Under no principle of practice and evidence could we consider the instant case to be proved beyond doubt.

7. Consequently the appeal is accepted, the impugned conviction and sentence recorded on 14‑2‑1995 is set aside and the appellant Muhammad Ayub is hereby acquitted of the charge under section 27(1)(a) of the Drugs Act, 1976. He is already on bail and is absolved of the liability under the bail bond. N.H.Q./1971/P Appeal accepted.