1978L228 (PLP)

Facts leading to this Constitutional petition are that the petitioner is a manufacturer of drugs for which be was granted licence under the Drugs Act, 1940 and also a licence under the Punjab Excise Act, 1941. Both these licences were renewed from time to time. The Drugs Act, 1940 aforesaid was substituted by an Ordinance IV of 1976 and then by an Act XXXI of 1976. The Director-General of Health, Government of Pakistan issued a notice or directive asking pre-existing licence-holders to get their licences re-validated as required by section 45 of the Drugs Act, 1976. Till the revalidation, old licences were to continue. The petitioner applied for revalidation of his licence and deposited the necessary amount of Rs. 5,000 on 11-2-1976. It is stated by the petitioner that on 17-5-1976 the then Minister of State for Health visited petitioner's premises and asked the Drug Inspector accompanying him to take sample of tincture for testing and the Minister directed the sealing of the premises of the petitioner. The order of sealing of the premises of the petitioner was challenged through Writ Petition No. 1312 of 1976. While this petition was pending on 25-6-1976 the Government Analyst reported that the sample of tincture taken from the petitioner's premises was of standard quality according to British Pharmaceuticals Codex. The writ petition above-mentioned came up for hearing before the then Chief Justice and the respondent authority withdraw its order of sealing the premises. This being so, the writ petition having borne fruit was disposed of on 25-5-1976. Relying on the aforementioned raid report dated 17-5-1976, the petitioner was again issued another order of the same date viz. 17-5-1976 saying that the petitioner's premises were not fit for manufacturing the drugs and the petitioner should stop further manufacturing. The petitioner challenged this order .by means of Writ Petition No. 1417 of 1976 and when this came up for hearing, on behalf of the respondent authority, it was stated that the order had already been revoked. The learned Chief Justice disposed of the writ petition with the observations that the authorities were expected to observe law and not to violate the same. It was hoped that in future the respondents shall observe the provisions of law in letter and spirit. This is vide order dated 3-6-1976. Petitioner probably did not know and the respondent authorities acted in a manner nor expected from public authorities in not disclosing on 3-6-1976 that they had already rejected the petitioner's application for revalidation on 1-6-1976. However, when the writ petition last mentioned was disposed of, the petitioner was handed over the order of rejection of his revalidation application, on which he filed Writ Petition No. 1878 of 1976. When this came up for hearing, it was stated on behalf of the Director-General of Health that "the impugned order has been withdrawn because action was not taken by complying with the provision of law and that if any action is taken in future it shall be taken after observing the law and principles of natural justice". On this statement, the writ petition was disposed of as having borne fruit. This is vide order dated 7-7-1976. It was then that the Central Licensing Board issued a showcause notice to the petitioner to the effect that "as to why your application not be rejected". Reply was submitted. The petitioner was informed that "the Central Licensing Board having considered the inspection report submitted by the Penal of Experts and the report submitted by the Expert Committee on your submission in reply to your show-cause notice, is satisfied that the conditions of the licence as laid down in rule 16 of the Drugs (Licensing, Registering and Advertising) Rules, 1976, were not being observed. The Board is further satisfied that in case your licence is revalidated/renewed the condition of the licence as laid down in rule 16 of the said Rules will not be observed. Therefore, the Board had decided not to revalidate/renew your licence." This is vide order dated 30-9-1976. The petitioner challenged this order by means of Writ Petition No. 2566/76 in which it was observed that there being alternate remedy of appeal available, the petitioner should file an appeal. The petitioner, accordingly, filed an appeal which has been disposed of by the Appellate Board vide order dated 29-10-1977. This order is being challenged through this Constitutional petition.

2. Learned counsel appearing for the petitioner has contended that from the statement of facts made above it would be clear that the petitioner has been harassed and made to close down his business by issuing orders one after another without justification and when the petitioner would challenge those orders, the authorities would withdraw the same but as soon as the petitioner's petition were disposed of, they would repeat the same order in substance. It is, next, contended that the Appellate Board who has disposed of the petitioner's appeal included two members, namely, Prof. Kh. Sadiq Hussain, Professor of Medicine, King Edward Medical College, Lahore and Mrs. Nasim Waqar, Assistant Professor of Pharmacy, Karachi University, Karachi, who had earlier inspected the premises of the petitioner and for some misunderstanding lodged F. I. R. against the petitioner under sec tions 342/506/353/186, 201 T. P. 61/1/16 E. A. 14/2/30 through an application to the Martial Law Authorities, Lahore. This complaint was signed by the aforesaid two gentlemen alongwith two others on 3‑5‑1977. The contention of the learned counsel for the petitioner precisely is that the two of the members having initiated criminal proceedings and invoked jurisdiction of the Martial Law Authorities against the petitioner were not competent to hear the appeal of the petitioner under the Drugs Act.

3. Learned counsel for the respondent authorities has not denied that two of the members who heard the appeal of the petitioner had earlier sent an application to the Martial Law Authorities complaining against the petitioner's misbehaviour when they alongwith others had visited his premises.4. From the statement of facts made above, it would appear that the petitioner bas been dealt with left‑handedly and the authorities taking action adverse to him have been acting rather irresponsibly in so far as that an order would be passed adverse to the petitioner and when that order was challenged finding no defence the order would be withdrawn but the injury would be re‑inflicted for which the petitioner would again seek relief. Again having no answer, the order would be withdrawn and so on. The petitioner was quite clearly harassed without lawful authority.

5. Leaving this aside, the impugned order of the Appellate Authority may be examined. Two of the members of the Appellate Authority alongwith others had visited the petitioner's premises. These gentlemen were not treated with respect as they deserved and, therefore, criminal proceedings were initiated through Martial Law Authorities against the petitioner by the two gentlemen above named in which it is stated the petitioner was arrested and remained in jail until he was released on bail two months later. No more need be said in this behalf. When the petitioner filed the appeal before the Appellate Board, against whose order this petition is directed, the appeal was heard by the Appellate Board which included the gentlemen who had earlier complained against the petitioner on criminal charges to the Martial Law Authorities. In these circumstances, it cannot be said that justice will appear to be done to the petitioner when his appeal is being determined by two of the participants in the Appellate Board who had themselves complained against him about criminal matter before the Martial Law Authorities. It is not that two members of the Appellate Board did not do justice to the petitioner. But justice has not only to be done, it has manifestly to appear that it was being done. This is an age old law. Reliance in this behalf may be placed on case in Muhammad Shafi v. Mauj Din Khan and 3 others (1). In this view of the matter the order of the Appellate Authority dated 29‑10‑1977 is not with lawful authority. It is so declared of no legal effect. Since the petitioner has been put to loss and made to close down his business since May, 1976, the Appellate Board is directed to re-determine the petitioner's appeal as soon as possible but not later than within two months keeping in view the background of the case, facts, as well as, the law applicable thereto. The petition is allowed with costs. S. A. H. Writ Petition accepted.