Quashment without moving 249-A and 265-K Petition

PLJ 2006 Lahore 425
[Multan Bench Multan]

Present: Muhammad Nawaz Bhatti, J.

AGHA NADIM and another--Petitioners

versus

PROVINCIAL QUALITY CONTROL BOARD GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT, CIVIL SECRETRIAT, LAHORE through its CHAIRMAN and 5 others--Respondents

Writ Petition No. 2546 of 1995, decided on 21.4.2005.

(i)  Constitution of Pakistan, 1973--

----Art. 199--Quashment of F.I.R.--Held: Every criminal case should be judged on its own facts & circumstances--It was not necessary that before moving High Court petitioners must move trial Court u/Ss. 249-A or 265-K Cr.P.C.--If Court was satisfied that on the basis of false complaint, process of Court was being abused to subject to accused for unnecessary harassment, it has power to quash such criminal proceedings.         [P. 429] E

(ii)  Drugs Act, 1976 (XXXI of 1976)--

----S. 22--Punjab Drugs Rules 1988--R. 4(3)--Held: Report of Drugs Testing Laboratory was not supplied to petitioners, so they could not challenge the same u/S. 22--Moreover case was registered on the complaint of drug inspector, on the permission of Provincial Quality Control Board which did not issue any show cause notice to petitioners u/R. 4(3) of the Rules 1988--Registration of case against petitioners was held to be without lawful authority.          [Pp. 428 & 429] A, C & D

(iii)  Drugs Act, 1976 (XXXI of 1976)--

----S. 17--Appointment of drug inspector--In presence of one drug inspector appointed for a District, appointment of another inspector for the whole division, including said District--Held: Such appointments are overlapping.         [P. 428] B

1968 SCMR 1256; 1989 P.Cr.L.J. 507 & 1985 SCMR 257, ref.

Sh. Zia Ullah, Advocate for Petitioners.

Mr. Muhammad Sarwar Bhatti, AAG for Respondents Nos. 1 to 5.

Date of hearing : 13.4.2005.

Judgment

Briefly stated the prosecution case is that on 18.12.1994, Respondent No. 4 inspected the premises of M/s Imran Drug Centre, Club Road, Vehari, recovered and seized 47 x 15 mg skilax Drops, Batch No. 7318, purported to be manufactured by M/s Highnoon Laboratory, Lahore/Respondent No. 6, on Form No. 5, which were suspected to be spurious due to a number of differences in the packing material. A sample of the same was sent to Drug Testing Laboratory Lahore for test/analysis. The Government Analyst/Respondent No. 2 reported the said drug to be spurious vide Test Report No. TRA 32/DTL dated 2.1.1995. Muhammad Younas, the Chief Manager production of M/s Highnoon Laboratory, Lahore, examined the said drug in presence of Respondent No. 4 and stated that the said drug was not manufactured by M/s Highnoon Laboratory, Lahore, and hence a supurious as defined under Section 3(ZB)(ii) of the Drugs Act, 1976. M/s Imran Drug Centre, Club Road, Vehari, has supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Azmat Medical Store, Arif Bazar,Burewala. M/s Azmat Medical Store, Arif Bazar, Burewala, has also supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Quality Traders, 7-A, Alminar Market, O/s Lahore/Petitioner No. 2. M/s Quality Traders has supplied the Invoice/Warranty as a proof of their purchase of the said drug from M/s Gujrat Medicine House, Jinnah Medicine Market, Lahori Gate, Lahore. On 30.3.1995, Respondent No. 4 got the case FIR No. 46 registered against the petitioners with Police Station, City Vehari.

2.  Through this writ petition, the petitioners have prayed that the permission granted by Respondent No. 1 for the registration of the case against the petitioners, the appointment of Respondents Nos. 2, 3 & 4 as Government Analyst, Punjab, and Drug Inspector, Vehari District, Vehari, respectively, and the consequent registration of the case against the petitioners by Respondent No. 5 at Police Station City Vehari, under Section 14 of the Dangerous Drugs Act, 1930, and Section 23, read with Section 27 of the Drugs Act, 1976, may kindly be declared to be without lawful authority and of no legal effect and the FIR may be quashed.

3.  Learned counsel for the petitioners has contended that before granting the permission under Sections 11(5)(b) and 19(6) of the Drugs Act, 1976, read with Rule 4 of the Punjab Drug Rules, 1988, for the registration of the case against the petitioners, Respondent No. 1 failed to observe the principles of natural justice by not issuing show cause notices to the petitioners, getting their replies or providing them an opportunity of hearing, therefore, the permission granted by Respondent No. 1 for registration of the case is a nullity in the eye of law; that the appointments of Mian Ghulam Nabi as Drug Inspector for whole of the Multan Division, including Vehari District and Muhammad Zubair as Drug Inspector for the District Vehari are in violation of the provisions of the Drugs Act, 1976 being overlapping appointments and, therefore, the registration of the case against the petitioners by Respondent No. 5 at the instance of Respondent No. 4 is a nullity in the eye of law; that under Section 22 (4) of the Drugs Act, 1976, an accused person has the right to challenge the result of the Government Analyst within 30 days and it is the report of the Laboratory specified in sub-section (5) of Section 22 of the Drugs Act, 1976 which is to be treated as final in the case. As the report of the Government Analyst dated 2.1.1995 has not been supplied to the petitioners, they have not challenged the same before the Laboratory specified in sub-section (5) of Section 22 of the said Act, therefore, the report of the Government Analyst dated 2.1.1995 being not final, no case could be got registered against the petitioners and that as the offence of manufacture and sale of the drug in question took place at Lahore, no case could be registered against the petitioners at Police Station City Vehari. Reliance is placed upon Agha Nadim and another vs. The Station House Officer Police Station, Lohari Gate, Lahore and another (1998 P.Cr. L.J. 181) and Shuja Ullah vs. The State and others (1994 P.Cr.L.J. 1065).

4.  On the other hand, the learned Assistant Advocate General has vehemently opposed the petition and support the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6. He has submitted that an alternate remedy is available under Sections 249-A & 265-K Cr.P.C. to the petitioner therefore, they must seek that remedy before the trial Court.

5.  I have heard learned counsel for the petitioners as well as the learned Assistant Advocate-General and gone through the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6.

6.  The case was registered on the complaint of Respondent No. 4 who was granted permission by Respondent No. 1 for the said purpose. But the permission was granted to Respondent No. 4 without issuing show-cause notices to the petitioners, which is the requirement of sub-rule (3) to Rule 4 of the Punjab Drugs Rules, 1988. Sub-rule (3) to Rule 4 is reproduced below:

"The Board shall examine the cases referred to it by any Inspector under the Act before directing him to prosecute such accused or recommending it to the Licencing Authority for cancellation or suspension of the Licence:

Provided that no such action shall be taken without a show-cause notice to the accused".

Comments submitted by Respondent No. 1 also reveal that show-cause notices were not issued to the petitioners before granting permission to Respondent No. 4 for registration of the case.

7.  So far as overlapping appointments of the Drug Inspectors are concerned, suffices it to say that Mian Ghulam Nabi was appointed as Drug Inspector for whole of the Multan Division, including Vehari District, which is in violation of Section 17 of the Drugs Act, 1976. The said section is reproduced below:

"The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors or, as the case may be provincial Inspectors for the purpose of this Act within such local limits as it may assign to them respectively:

Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed:

Provided further that a person serving under the Federal Government or another Provincial Government shall not be so appointed without the previous consent of such Government".

In presence of appointment of Muhammad Zubair as Drug Inspector for the District Vehari, which is the concerned District, appointment of Mian Ghulam Nabi as Drug Inspector for whole Multan Division including District Vehari is overlapping.

8.  The recovered sample of the drug in question was sent by Respondent No. 4 to Respondent No. 2 for test and analysis, who vide his report  dated  2.1.1995  found  the same to be of substandard quality. But the said report was not supplied to the petitioners and for this reason they had not challenged the same under Section 22 of the Drugs Act, 1976. Comments of Respondent No. 4 reveal that a copy of test report was supplied to the petitioner vide letter dated 5.1.1995. But the said letter was addressed to Agah Nadeem M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore, and not to Agha Nadeem M/s Nadeem Medical Store, Academic Road, Lahore Cantt. In this petition Petitioner No. 1 Agha Nadeem himself says that he has nothing to do with M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore. Therefore, the report being not final, the registration of the case against the petitioners is without lawful authority. Even otherwise case cannot be registered at Vehari as the offence allegedly took place at Lahore.

9.  So far as the contention of the learned Assistant Advocate-General that the petitioners must seek an alternate remedy under Sections 249-A and 265-K Cr.P.C. before the trial Court is concerned, suffice it to say that it is not necessary that before moving the High Court the petitioners must move the trial Court under Sections 249-A or 265-K Cr.P.C. Every criminal case should be judged on its own facts and circumstances. This Court has power to quash criminal proceedings if satisfied that a false complaint had been brought and the process of Court was being abused to subject to the accused to unnecessary harassment. Reliance in this behalf is placed upon Raja Haq Nawaz vs. Muhammad Afzal and others (1968 SCMR 1256), Ghulam Ali vs. Javid and another (1989 P.Cr.L.J. 507), Abdul Ghafoor vs. The State (NLR 1999 Criminal 66) and Mian Munir Ahmad vs. The State (1985 SCMR 257).

10.  In view of the above circumstances, this writ petition is accepted and the permission granted by Respondent No. 1 for the registration of the case against the petitioners being unlawful authority, the FIR in question is quashed.

(J.R.)    Writ petition allowed