Amended Challan can be presented in Court

PLJ 2013 Lahore 16

Present: Muhammad Khalid Mehmood Khan, J.

M/s. AMSON VACCINES AND PHARMA (PVT.) LTD., etc.--Petitioners

versus

CHAIRMAN DRUG COURT, etc.--Respondents

W.P. No. 16170 of 2009, decided on 16.5.2012.

Drug Act, 1976 (XXXI of 1976)--

----S. 23--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Warranty of drug--Grant of permission to prosecute for violation--If once presented against a specific accused no subsequent accused can be added on statement of accused--Duty of investigating agency to investigate matter and submit challan--Alleged drugs under warranty of petitioner and as such prima facie petitioner was responsible for substandard medicine--Drug Inspector while investigate was duty bound to summon the petitioner and investigate him--Drug Inspector had failed to perform his duties that was reason drug Court directed to file amended plaint--Validity--It is also an established principle of law that Court is not an investigating agency but has to decide allegation against accused as per prosecution story--Court should have direct I.O to reinvestigate the matter and after investigating the petitioner submit amended challan as petitioner has every right to explain allegations leveled against him before investigating agency--Petition was partly allowed.         [P. 18] A, B & C

Mr. Atta Mohy-ud-Din, Advocate for Petitioners.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab alongwith Ahmad Tariq, Drug Controller, Gujranwala for Respondents.

Date of hearing: 16.5.2012.

Order

The petitioner is a company incorporated under the Companies Ordinance, 1984 and is licensed pharmaceutical manufacturer. The petitioner is also having ISO certificate for 9001, 14001 and 18001 by Lloyds UK. The petitioner is also registered with the Provincial Health Department.

2.  Respondent No. 5 on 10.6.2006 inspected the premises of Respondent No. 8 and collected 10 vials of Forax Inj. 500mg (Cefotaxime Sodium), Batch No. 028, manufactured by petitioner. The sample was sent to Drug Testing Laboratory, Lahore for analyses. The Drug Testing Laboratory declared the said sample substandard vide test report No. 15737 dated 08.8.2006. Respondent No. 4 directed Respondent No. 8 for providing invoice/warranty of the. alleged drug vide letter dated 19.02.2007, Respondent No. 8 failed to provide the said warranty and ultimately Respondent No. 4 referred the case to Respondent No. 6 for grant of permission to prosecute Respondent No. 8 for violation of Section 23 of the Drugs Act and rules thereunder. Respondent No. 6 issued show-cause notice to Respondent No. 8 and after providing opportunity of hearing to Respondent No. 8 approved the prosecution of Respondent No. 8 vide order dated 29.7.2008. Challan was submitted to the learned Drug Court on 5.8.2008. Respondent No. 8 while appearing before the learned drug Court disclosed that he purchased the alleged medicine from Sunshine Traders, an approved distributor of petitioner. One Sohail Ahmad appeared on behalf of Sunshine Traders, before the learned drug Court and deposed that he has purchased the alleged medicine from petitioner under the warranty dated 30.3.2005. The learned drug Court on the statement of one Sohail Ahmad issued a show-cause notice to petitioner. The petitioner replied the said show-cause notice and the learned drug Court on 13.5.2009 directed Respondent No. 4 to file amended complaint arraying the petitioner as accused.

3.  The petitioner, thus asserted that impugned order dated 13.5.2009 is against law. Further submits that there is no evidence available on record on the basis of which the petitioner could be arrayed as accused in the challanwhich admitted has been filed against Respondent No. 4.

4.  Learned counsel for petitioner submits that Drug Act, 1976 is a special law and as such the challan, if once presented against a specific accused, no subsequent accused can be added on a statement of accused. Learned counsel further submits that it is the duty of investigating agency to investigate the matter and submit the challan, the Investigating Officer has not called the petitioner nor investigated the petitioner as no material was collected against the petitioner by the Investigating Officer.

5.  Learned Additional Advocate General submits that learned Drug Court was within his powers to direct Respondent No. 4 to amend the challan by arraying the petitioner as accused for the simple reason that petitioner is admittedly manufacturer of drugs recovered from Respondent No. 8, the petitioner has issued a warranty of said medicine to its distributor, this fact has not been denied by the petitioner and as such the impugned order is perfectly in accordance with law.

6.  Heard. Record perused.

7.  Admittedly the petitioner is a manufacturer of medicine allegedly declared as substandard. The prosecution has completed the investigation and submitted challan in the Court. Respondent No. 8 no doubt is the seller of the alleged substandard medicine but he is not the manufacturer of the same. M/S Sunshine Trader is admittedly the distributor of petitioner. Respondent No. 8 purchased the alleged drugs from Sunshine Trader under the warranty of petitioner and as such prima-facie the petitioner is responsible for the substandard medicine.

8.  It is an admitted fact that Drug Inspector while investigating the matter was duty bound to summon the petitioner and investigate him but it seems that Drug Inspector has failed to perform his duties in accordance with law and that is the reason the learned drug Court directed Respondent No. 4 to file amended complaint. It is also an established principle of law that Court is not an investigating agency but has to decide the allegation against accused as per the prosecution story. In these circumstances learned trial Court should have direct the Investigating Officer to reinvestigate the matter and after investigating the petitioner, submit the amended challan as the petitioner has the every right to explain the allegations levelled against him before investigating agency.

9.  In view of the above, this petition is partially allowed and Respondent No. 4 is directed to reinvestigate the matter by associating the petitioner and after completing the investigation within 2 months be submit the amendedchallan to learned trial Court if it is established that petitioner is responsible for manufacturing substandard medicine allegedly recovered from Respondent No. 8.

(R.A.)  Petition allowed