P L D 1976 Lahore 813 (PLP)

The petitioner is a private limited Company incorporated under the provisions of the Companies Act, 1913 The Company primarily deals in the manufacture and sale of Pharmaceuticals and for that purpose holds requisite licences under the provisions of the Drugs Act, 1940 and the Rules made thereunder, namely, the Drugs Rules, 1945.

2. On 15th August 1975, Ch. Nadir Khan, Drugs Inspector, respondent No. 2, accompanied by a few members of the staff of the Federal Investigation Agency, visited the shop of Messrs Universal Medicine Company, Lobari Gate, Lahore and took samples of Folic Acid Tablets, Promethazine Cough Syrup, Multi Vitamin Syrup, Tincture Aconite and Chlorphenranci maleati Syrup, alleged to have been manufactured by the petitioner‑Company and sent them to the Government Analyst for test and analysis. Again on the 31st August 1975, Ch. Nadir Khan, respondent No. 2 and the aforesaid members of the Federal Investigation Agency visited the Standard Medical Store, Railway Road, Sialkot, and took a sample of Paracetemol Elixir containing Batch No. 1265, also allegedly manufactured by the petitioner‑Company and in due course this sample was also sent to the Government Analyst for test and report. The Government Analyst in his report dated 15th September 1975, expressed the opinion that as against the stated amount of 120 M. G. the sample was found to contain 151 M. G. and, therefore, it did not conform to the stated specifications and that excessive amount of sucrose cane sugar (crystals) was found settled at the bottom of the sample.

3. On the basis of the above report of the Government Analyst a case under section 18 of the Drugs Act, 1940, punishable under section 27 thereof, was registered, against Akhtar Hussain Bhutta. Managing Director of the petitioner‑Company. On learning about the registration of this case, the petitioner‑Company filed this writ petition, praying for a declaration that the Federal Investigation Agency had no authority in law to register and investigate cases involving offences under the Drugs Act, 1940, against the petitioner, any member of its Board of Directors or its officers in respect of the aforesaid drugs and that Ch. Nadir Khan, respondent No. 2, had also no authority in law to take these ‑samples of the aforesaid drugs and sent them to the Government Analyst for test and report and to institute any prosecu tion against the petitioner, any member of its Board of Directors or any of its officers in regard to the aforesaid drugs.

4. The declaration, above‑mentioned, has been sought on the following three grounds: (a) That under the provisions of the Drugs Act, 1940, especially section 32 thereof, it is only the Drugs Inspector, appointed in accordance with section 21 of the Act, who can investigate into the case regarding the commission of offences under Chapter IV of the Drugs Act, 1940, which includes the offences under section 18, of which the Managing Director of the petitioner‑Company has been accused, and institute prosecution in respect thereof and that the Federal Investigation Agency has no authority in law to register and investigate into the cases under the Drugs Act, 1940 and submit a final report in Court for the prosecution of the culprit; (b) that Ch. Nadir Khan, respondent No. 2, having not been appointed as Drugs Inspector, in accordance with section 21 of the Drugs Act, 1940, was not competent to take samples of the drugs, mentioned above, and to institute prosecution against the Managing Director of the petitioner‑Company in respect thereof; and (c) that the proceedings against the Managipg Director of the petitioner Company are based on male fides on the part of Ch. Nadir Khan. Drugs Inspector, respondent No. 2, against whom he made three complaints of corruption and three inquiries were held against him by respectable authorities of the Government, and the present pro. ceedings have been initiated by Ch. Nadir Khan as a measure of retaliation.

5. The Federal Investigation Agency Act, 1974, was promulgated on 17th January 1975. Under section 3 thereof the agency has been constituted for inquiry into, and investigation of, the offences specified in the Schedule. Initially the Schedule to the Act contained sixteen items, but the Federal Government in exercise of its powers under section 5 of the Act, has been adding some more items, and the item relevant for our present purpose is item No. 22, added to the Schedule vide Notification No. SRO‑775(1)/75 dated 9‑7‑1975, whereby "the offences punishable under the Drugs Act, 1940" have also been included in the Schedule.

6. The argument that the Federal Investigation Agency has no authority in law to register and investigate into cases under the Drugs Act, 1940 is raised on the following reasoning:‑ Under section 5 of the Federal Investigation Agency Act, members of the Agency shall, for the purposes of inquiries, or investigation under the Act, have throughout Pakistan such powers including powers relating to search, arrest of persons and seizure of property, any such duties, privileges and liabilities, as the officers of the Provincial Police have in relation to the investigation of offences under the Code of Criminal Procedure or any other law for the time being in force. In other words the Federal Investigation Agency can exercise only those powers in regard to the investigation of offences mentioned in the Schedule to the F. I. A. Act, which are exerciseable by the Provincial Police in respect thereof. It is, therefore, necessary to ascertain whether the Provincial Police enjoys any power for the purpose of registering and investigating into cases under the Drugs Act, i94Q. According to the .learned counsel for the petitioner even the Provincial Police possesses no such powers. In this connection the submission is that the provisions of Chapter IV of the Drugs Act, 1940 and Rule 51 of the Drugs Rules, 1945 framed thereunder deals with the question of investigation into offences under the said Act and the prosecution in respect of violations of the said Act, in its entirety is dealt with under the above' provision which can be launched only by the Drugs Inspector. Under section 22 of the said Act the Drugs Inspector has been given various powers including the powers of inspection of premises and search, seizure of drugs and the record regarding thereof, as well as investigation into offences under the Drugs Act etc. Specific attention is drawn to section 32 of the Drugs Act, whereunder only a Drugs Inspector is competent to institute prosecution in respect of offences under Chapter IV of the Act. If, therefore, the Drugs Act requires that the investigation into offences of the Drugs Act shall be carried out only by the Drugs Inspector, and it is he alone who can launch prosecution with the result that the performance of these functions by any other Agency such as the Provincial Police or for that .matter the F.

1. A. will be prohibited, the Drugs Act being a special law on the subject, its provisions will prevail over those of the Code of Criminal Procedure or for that matter the Federal Investigation Agency Act.

7. In order to test the accuracy of these submissions, it is necessary to refer to the relevant provisions of the Drugs Act and the rules made there under. Section 21 of the Drugs Act to the extent relevant lays down as follows:‑ "21.‑(1) The Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to he Inspectors for the purposes of this Chapter within such local limits as it may assign to them respectively: (2) " Section 22(l) and (2) of the Drugs Act reads as under :‑ "22.‑(1) Subject to the provisions of section 23 and of any rules made by the Provincial Government in this behalf, an Inspector may, within the local limits for which he is appointed, and in any other area with the permission of the licensing authority,‑ (a) inspect any premises wherein any drug is being manufactured, the plant and process of manufacture, the means employed for standard ising and testing the drugs and all records and registers relating thereto ; (b) inspect any premises wherein any drug is being sold or is stocked or exhibited for sale or is being distributed, the storage arrangement and all relevant records and registers ; (c) take samples of any drug which is being manufactured, or being sold or is stocked or exhibited for sale or is being distributed; (d) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any building, vessel or place, in which he has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that an offence under this Act or any Rules made thereunder, has been or is being committed; (e) seize such drug and all materials used in the manufacture thereof and all other articles including registers, cash‑memos., invoices, bills which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act and any rules made thereunder; (f ) call any person from the neighbourhood to be present as witness in course of search, seizure or in connection with any other matter where the presence of witnesses is necessary; (g) require any person to appear before him at any reasonable time at any proper place to give statement, assistance or information relating to, or in connectijn with, the investigation of an offence under this Act or rules made thereunder: Provided that the exemptiops under sections 132 and 133 of the Code of Civil Procedure, 1908 shall be applicable to requisitions for attendance under this clause; (h) lock and seal any factory, laboratory, shop, building, store‑house or godown or a part thereof where any drug is, or is being, manufactured, stored, sold or exhibited for sale without the necessary licence under this Act, or where he has reason to believe that an offence under this Act has been committed or may continue to he committed: (i) forbid for a reasonable period not exceeding three months any person in charge of any premises from removing or disposing of any drug, article or other thing likely to be used in evidence of the commission of an offence under this Act or any rules made thereunder. ‑(2) The provisions of the Code of Criminal Procedure, 1898, in so far as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Chapter." Rule 51 of the Drugs Rules, 1958 to the extent relevant is as follows:‑ "

51. Duties of Inspectors of premises licensed for sale.‑Subject to the instructions of the controlling authority, it shall be the duty of an Inspector authorized to inspect premises licensed for the sale of drugs‑ (2) . (3) . ,(4) to investigate any complaint in writing which may be made to him; .(5) to institute prosecutions in respect tof breaches of the Act and rules made thereunder; (6) . (7) . (8) . Reverting back to the Act, section 27 thereof is also relevant and it lays .down as follows :‑ "

27. Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale, or distributes any drug in contravention of any of the provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment which may extend to three years or with fine, or with both." The matter of cognizance in cases is dealt with in section 32 of the Act, which lays down as under:‑ "32.‑(1) No prosecution under this Chapter shall be instituted except by an Inspector. (2) No Court inferior to that of a Magistrate of the first class shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."

8. It is to be observed that the stage at which the petitioner has approached this Court is that a Police Agency has registered a case in pur suance whereof the Managing Director of the petitioner‑Company can be arrested and what the prayer made in the writ petition boils down to is that neither the investigation into the matter be conducted by the Police, nor should the petitioner be arrested in pursuance of the case registered against him. Reliance for the above prayer is also placed on the provisions of sub section (2) of section 5 of the Code of Criminal Procedure. according to which all offences under any otber laws (other than the Penal Code) shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions (i.e. provisions of the Code of Criminal Procedure) but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences. In this connection attention is invited to subsection (2) of section 22 of the Drugs Act, 1940, according to which the Code of Criminal Procedure applies only to search and seizure to be conducted by the Drugs Inspector. In other words, the submission is that the rest of the provisions of the Code of Criminal Procedure do not apply. In short the argument is that provision= having been made in the Drugs Act, 1940, regulating the manner of investiga tion, inquiry into, trying or otherwise dealing with such offences. the Code of Criminal Procedure does not apply to cases under the Drugs Act.

9. The above submissions are not apposite at the stage of the presen case. It is to be noted that the offence under section 18 of the Drugs Act i punishable with imprisonment which may extend to three years, or with fine or with both, under section 27 thereof. The offence is, therefore, a "cogniz able offence" by virtue of the definition of a cognizable offence given in section 4(1)(j ) of the Code of Criminal Procedure and therefore the Pro vincial Police and for that matter the Federal Investigation Agency have the authority to investigate into offences under the Drugs Act. The only bar contained in section 32 of the Act is that no prosecution under this Chapter, in which section 18 occurs, shall be instituted except by an Inspector. Thei prosecution is, therefore, to be launched in Court by the Inspector and before that is done, the power of the Police to effect arrest as also to register a case, is not ousted. In this connection reference may be invited to Muhammad Hayat v. Chief Settlement and Rehabilitation Commissioner (P L D 1970 Lah. 679) in which a similar argument was raised in connection with the provisions of section 29 of the Displaced Persons (Land Settlement) Act, which was in the following terms:‑‑‑ "No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed, under this Act." The Police investigation into the charge of filing a bogus claim was challenged: in that case on the ground that the said officer not being an officer appointed under the Displaced Persons (Land Settlement) Act, 1958 could not make a report and therefore no investigation could be made on such report. It was held that section 29 of the Act "deals with the cognizance of offences by the Court and not with the registration or investigation of cases. There is no bar to the registration of a case by the Police on the application or report of any person. He may or may not be an officer appointed under the Act. The: bar is only in respect of the taking of cognizance of the offences by the Court. It will be only at that stage that the petitioner may have any grievance if it is found that the prosecution in the Court is not launched by a competent:` person".

10. In this connection it may also be pointed out that both the sides relied upon a decision from the Indian jurisdiction entitled Chunilal v. State (A I R 1959 Dom. 554). In that case, a charge‑sheet was filed against the appellant, his son and two daughters for offences under sections 18 and 27 of the Drugs Act. However, with the charge‑sheet lodged in Court, a complaint addressed to the Magistrate signed by the Drugs Inspector was also submitted and the argu ment raised was that the learned Magistrate had no jurisdiction to entettain the proceedings against the accused, because it was not instituted by the Inspector under the Drugs Act and reliance was placed on section 22 of the Act, which as already noted, lays down that "No prosecution under the" Chapter shall be instituted except by an Inspector". This argument was repelled and it was held that the complaint having also been filed in Court by the Drugs Inspector, it could not be said that the prosiecntion against the appellant was not instituted by the Inspector. It was added that "it is true that the complaint was accompanied by a charge‑sheet bled by the Police, but that charge‑sheet may be regarded as superfluous. As a complaint was filed by an Inspector under the Drugs Act, the prosecution was competently entertained by the Presidency Magistrate, and the fact that the complaint was accompanied by a charge‑sheet under the signature of the Inspector of Police did not render the prosecution instituted as otherwise than by an Inspector".

11. The learned counsel for the petitioner was of the view that in so far as the charge‑sheet filed by the Police was held to be superfluous, this indi cated that the Police had no jurisdiction to submit the report under section 173, Cr. P. C. and by implication this meant that the Police was debarred also from investigating the case at any earlier stage. A reference to the facts of the case of Chuni Lai, as reproduced in the report (A I R 1959 Dom. 554) however, shows that Chuni Lai was manufacturing drugs without obtaining a licence under the Drugs Act, 1940 and the Drugs Inspector lodged a complaint with the local Police against him for contravention of section 18(c) of the Drugs Act. The Police Officer also raided the place occupied by him and attached certain articles found on the premises. Chuni Lai was arrested and later a charge‑sheet was filed against him, his son and two daughters in the Court, which was accompanied as already mentioned, by a complaint addressed to the Magistrate, signed by the Drugs Inspector. It is noteworthy that no objection was taken by the High Court of Bombay to the lodging of the complaint with the Police or the action of the Police in raid ing the premises and arresting Chuni Lai and the said Court did not find these actions to be bad in law, but has merely observed that theprosecution in Court had to be launched by the Drugs Inspector. Thus, the requirement of the special law, namely the Drugs Act, was found to extend to the above extent only, namely, to the launching of prosecution in Court by the Drugs Inspector. The perusal of the provisions of section 22 of the Drugs Act, reproduced in para. 7 above, also shows that the question of lodging of a report with the Police and effecting arrest of the accused person is not dealt with by the Drugs Act. Hence the Drugs Act being silent with regard to these matters, the provisions of the Criminal Procedure Code in this regard would govern these matters.

12. The upshot is that there is no force in the first contention raised on behalf of the petitioner. All that has been done so far is that the samples have been sent to the Drugs Analyst by the Drugs Inspector, which he could forward under the provisions of the Act and no further step has so far been taken thereafter. It is obvious that the petitioner has moved this Court prematurely and no relief can be granted to him at this stage.

13. As regards the second contention that Ch. Nadir Khan, respondent No. 2, has not been appointed as Drugs Inspector in accordance with section 21 of the Drugs Act, 1940, this point will arise only when the pro secution is launched. At this stage it is not necessary to scrutinise the submission whether Ch. Nadir Khan can be considered to be a Drug Inspector within the meaning of section 21 of the Act minutely, as no pro secution has been launched in Court. So far as the investigation into the case being made by Ch. Nadir Khan is concerned, no objection can be taken to ,it, because even if an investigation is not ultimately found to be in strict compliance with the provisions of law, it does not necessarily follow that the subsequent trial shall stand vitiated. (See The Crown v. Nur Alam (P L D 1955 Lah. 667 ).

14. As far as the question of mala fides of Ch. Nadir Khan (respondent) is concerned, the said respondent in his reply has submitted that when he was Drugs Inspector, Lahore City and Cantonment, in December 1973, he raided the Drug Stores of Mayo Hospital and Flood Relief Store and seized substandard drugs worth more than ten lacs rupees, which were manufactured by the petitioner‑Company and the petitioner was prosecuted in the Court of the Assistant Commissioner, Lahore, and charges were framed against him in five cases. It was after that incident that, as a counterblast, he started a campaign against the answering respondent.

15. It may also be observed that in order to prove mala fides so as to render some action taken to be without lawful authority, the person alleging mala fides must establish the tests in this behalf, laid down by the Supreme Court in The Federation of Pakistan v. Saeed Ahmad Khan (P L D 1974 S C 151). The said tests cannot be held to have been fulfilled on the sketchy material on this aspect of the matter placed on the present record.

16. The overall result is that this petition is premature and is dismissed accordingly, with no order as to costs. Note.‑The interim order made on 25‑9‑1975 that the petitioner will not be arrested, provided he furnishes security in the sum of Rs. 10,000 with one surety in the like amount, shall continue to remain operative unless the petitioner is convicted and sentenced by a competent Court, in accordance with law. s. A. H. Petition dismissed.