2013 P Cr (PLP)

Muhammad Hanif Abbasi, petitioner has moved this petition for the grant of pre-arrest bail in case F.I.R. No.41 registered at Police Station Anti-Narcotic Force, Regional Directorate, Rawalpindi on 21-7-2012 under section 9(c) read with sections 15 and 16 of the Control of Narcotic Substances Act, 1997.

2. F.I.R. was lodged by Syed Imtiaz Hussain Shah, S.I/S.H.O of PS ANF, Regional Directorate, Rawalpindi mentioning that during investigation of case F.I.R. No.40 of 2011 it transpired that Ministry of Health, Government of Pakistan, Islamabad had issued quota of Ephedrine to different Pharmaceutical Firms/Companies who did not use the same the purpose for which it was granted. It was further alleged that 99 companies were issued licenses for provision of said quota out of which 28 pharmaceutical firms/companies violated the terms and conditions of the license. Out of said companies Messrs Gray's Pharmaceuticals, Islamabad was allotted 500 K.G. quota of Ephedrine which was allegedly not used for the preparation of medicine rather that was sold to some smugglers, etc. and hence the owners of said company including Muhammad Hanif Abbasi (the present petitioner) and Razia Zahid Bakhtawari, etc. were found involved in the commission of the alleged offence. On this report the instant case, as mentioned above, was registered.

3. Learned counsel for the petitioner argued that the petitioner has been falsely involved in this case. He argued that the petitioner applied for the grant of Ephedrine quota in a lawful manner and his application after having been processed under the relevant rules was allowed; that the petitioner after preparation of the medicine supplied the same to different distributors. Learned counsel referred para -4 of the letter dated 31-8-2012 wherein all the three pharmaceuticals companies, namely, Messrs Arafat Traders Karachi, Messrs Hammas Pharma, Rawalpindi and A.B. Pharma, Rawalpindi after having manufactured in the shape of DE-Asm tablets 30 mg with different quantities were supplied. Learned counsel further referred letter dated 28-5-2012 written by Deputy Director, ANF to Messrs Arafat Traders Karachi whereby it was directed to provide details of the medicine supplied by Messrs Gray's Pharmaceuticals, Islamabad and the said firm replied vide letter dated 4-6-2012 that aforesaid medicine/tablets were supplied to them by Gray's Pharmaceuticals; that Chief Drug Inspector, Karachi had secured 30 samples in respect of the said medicine and reported that those were found according to standard quality; that petitioner has already joined the investigation and provided all relevant records and information in respect of the medicine manufactured by his firm to the Investigating Agency but with mala fides and under certain political influence petitioner has falsely been roped in this case. Prayed that in the circumstances when he has already joined the investigation, all the relevant records are with the Investigating Agency, petitioner ad interim pre-arrest bail already granted by this Court vide order dated 6-9-2012 be confirmed.

4. On the other hand learned Special Prosecutor for ANF has vehemently opposed this petition on the grounds that there is ample evidence so far collected by the ANF showing that petitioner after procuring the Ephedrine quota of 500 K.G. misused the same. Reference was made to the statement of different Chemists at Karachi showing that they were not supplied the medicine (De-Asm 30 mg tablets) although it was agitated on behalf of the petitioner that those medicines were supplied in Karachi to different pharmaceuticals firms/companies. Learned Special Prosecutor further referred the report of Joint Director, Regional Directorate, A.N.F, Karachi showing whatsoever record was produced by Messrs Arafat Traders, Karachi about disposal and sale of the manufactured drug was found fake and forged, thus argued that the allegations prima facie against the petitioner are proved showing that no such medicine was ever manufactured; that the instrument Cast Die, etc. which was used by petitioner's company/firm was not found by the Federal Drug Inspector, Karachi according to the specifications set out under the rules. It was further argued that as the petitioner is seeking extraordinary relief of pre-arrest bail whereas prima facie case as alleged against the petitioner is made out, he is not entitled for such concession. Prayed that this bail petition be dismissed.

5. We have heard the learned counsel for the parties and perused the record.

6. Admittedly Ephedrine quota was allotted to the petitioner by the Ministry of Health, Government of Pakistan, Islamabad according to the relevant drug rules as applicable on the subject. The only allegation against the petitioner in the F.I.R. and subsequent investigation is that he misused or did not use that Ephedrine a control substance for preparation of the medicine (De-Asm 30 mg tablets) for which purpose it was granted. Statements of some of the stock holders and shopkeepers are shown recorded by the Investigating Agency showing that they were never provided Ephedrine by petitioner's company/firm.

7. As far as the manufactured drug is concerned it was basically the duty of the concerned Drug Inspectors of the concerned areas to check out and then report in accordance with rules to the competent authority for initiation of any action against the concerned pharmaceuticals firms/companies. Here in this case there is no allegation, if the petitioner was granted Ephedrine quota without due process of law. Application for grant of license in respect of Ephedrine, its quota and subsequent supply in the shape of manufactured medicine are not denied by the concerned companies/firms or their officials.

8. As far as the evidence about misuse of said quota is concerned at present in the light of record available the Investigating Agency/ANF is still in the process of collecting the evidence as on the last date of hearing and even today the Investigating Officer on Court's query specifically stated that evidence in this case is yet to be collected as further investigations are required.

9. If the offences alleged against the petitioner in the F.I.R. are seen there is no evidence available on record to connect him with the commission of offence falling under sections 6, 7 and 8 of the Control of Narcotic Substances Act, 1997 violation of which is punishable under section 9 of the Act ibid. At the best, if allegations and evidence so far collected are seen the prosecution is trying to make out a case for violation of section 16 of the Act ibid which provision is hereby reproduced for facility of reference:-- "Punishment for offence for which no punishment is provided Whoever contravenes any provision of this Act or any Rule or Order made, or any license, permit or authorization issued hereunder, for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both." So, if the offence under section 16 of the Control of Narcotic Substances Act, 1997 is seen it is only punishable upto imprisonment for one year or with fine to the extent of Rs.5,000 or with both. Hence, in the circumstances it is bailable offence.

10. In view of the above circumstances the case of the petitioner falls within the provision of section 497(2) Cr.P.C. being a case, of further inquiry. Accordingly this petition is allowed and the ad interim pre-arrest already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.5,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court or learned Sessions Judge, Rawalpindi within one week from the receipt of this order otherwise this bail petition shall be deemed as dismissed.

11. The prosecution, however, is at liberty to move for cancellation of bail if subsequently during investigation some cogent or plausible evidence is collected against the petitioner for the commission of alleged offence. MWA/M-328/L Bail confirmed.