For business information, annual reports, laws, ordinances, regulations and articles.

	Web Paksearch.com

CHAPTER IV
Offences, Penalties and Procedure

27. Penalties : (1) Whoever himself or by any other person on his behalf:
(a) exports, imports, manufactures for sale or sells any spurious drug or any drug which is not registered;
(b) manufactures for sale any drug without a licence; or
(c) imports without licence any drug for the import of which a licence is required;

shall be punishable with imprisonment for a term which shall not be less than three years or more than ten years and with fine which may extend to one lakh rupees:

Provided that the Drug Court may, for any special reasons to be recorded, award a sentence of imprisonment for a term of less than three years.

(2) Whoever himself or by any other person on his behalf--
(a) imports, manufactures for sale or sells any counterfeit drugs; or

(b) gives to the purchaser a false warranty in respect of any drug sold by him that the drug does not in any way contravene the provisions of Section 23 and is not able to prove that, when he gave the warranty, he had good and sufficient reason to believe the same to be true; or

(c) applies or permits to be applied to any drug sold, or stocked or exhibited for sale, by him, whether on the container or a label or in any other manner, a warranty given in respect of any other drug, or

(d) imports, manufactures for sales or sells any drug under a name other than the registered name; or

(e) exports, imports, manufactures for sale or sells any drug with which any substance, which should not actually be its component, has been mixed or packed so as to reduce its quality or strength or for which any such substance has been substituted wholly or in part;

shall be punishable with imprisonment for a term which may extend to seven years, [or with fine which may extend to one lakh rupees, or with both.]

(3) Whoever obstructs an Inspector in the exercise of any power conferred upon him by or under this Act, or disobeys the lawful authority of any Inspector, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.

(4) Subject to the provisions of sub-section (1), sub-section (2) and sub-section (3), whoever himself or by any other person on his behalf contravenes any of the provisions of this Act or any rule shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both.

Substandard or misbranded drugs manufactured by a company: The burden of proof, cast on Director or employee of a company to prove that substandard or misbranded drug was manufactured without their knowledge and or consent after prosecution discharged its initial burden. The presumption, held, would be that all such acts of manufacture of misbranded or substandard drugs were committed with knowledge and or with consent of every such director or employee. 1986 P Cr. L J 1265.

Offence being cognizable could be investigated into by the Provincial Police and therefore by the Federal Investigation Agency also. Prosecution in respect of offence could not, however, be instituted except by the Drugs Inspector. P L D 1976 Lah. 813.

Manufacturing of substandard drug wherein the petitioner is being the manager of the drug manufacturing firm, proprietor produced the warranty, both are liable for the offence. 1976 P Cr. J L 649.

Where the warranty was signed not by the petitioner but by another partner of the firm and the drugs were not found of standard quality, the petitioner was also held liable in respect of offence relating to drugs. 1973 P Cr. L J 809.

It is a well established proposition of law that whenever the legislature empowers a subordinate authority to attach any conditions to the grant of a licence the conditions to be valid must fairly and reasonably relate to the object and purposes of law. P L D 1978 Lah. 445.

The prosecution and conviction of a person for merely stocking certain medicines is misconceived where the rules have only prohibited the supply or sales of those medicines otherwise than under the personal supervision of a qualified person. A I R 1956 All. 703.

Powers of search and seizure given to the Drugs Inspectors under section 18(1) is not restricted to such officers. Searches and seizures in respect of offences under section 27(1), could also be made by the Police Officers. Police Officers in such cases were not required to follow procedure laid down in section 19 but to follow procedure prescribed under the Code of Criminal Procedure, 1898, section 103. 1979 P Cr. L J Note 6.

Government Analyst's report proved the drug kept in store for sale and sold by the petitioner not containing relevant ingredients but some other powders. The petitioner though given a sample but not proving drug to have contained necessary components and being genuine and not spurious. The contention as to drug in question having not been proved to be spurious, was not maintainable. P L D 1981 S C 352.

Facts on record showing that there were conflicting reports of the Government Analyst in respect of certain drug. Circumstances not ruling out possibility that deterioration may be due to storage and climatic condition. Proceedings against the accused Nos. 2 to 4 instituted on application of the Special Prosecutor. The accused were entitled to the benefit of doubt and acquitted. N L R 1982 Or. L J 280.

Drug found deficient of ingredients under warranty. Borax Glycerine manufactured under written warranty of containing, 12% of borax (main active ingredient) but found substandard and deficient. containing only 6.73% w/w and absorption of water to extent of 100% of total quantity of glycerine. Contention that glycerine being highly hygroscopic. absorption moisture could be caused due to loosely fitted stoppers. No evidence, however, to indicate that bottles containing Borax Glycerine were not properly stoppered or not dried before use. Accused, held, guilty of offences, in circumstances. Borax Glycerine a drug where in even major variation of active ingredient can result in no serious consequences and accused manufacturers also withdrawing entire batch from retailer. Heavy sentence held further,-not called for in circumstances. Accused sentenced to fine of Rs.5,000/- or I years RI. in default. 1978 P Cr. L J 287.

Search and Seizure: Powers of search and seizure given to Drugs Inspector under Section 18 (1) not restricted to such officers. Searches and Seizures in respect of offence under Section 27(1), held, can also be made by Police Officers. Police Officers in such cases, held further, not required to follow procedure laid down in Section 19, but to follow procedure prescribed under Code of Criminal Procedure, 1898, Section 103. 1979. PCr. L J 4.

Criminal liability--Limited company : A limited company or a Corporation is legal 'person' in the eye of law and by legal fiction capable of taking and defending civil actions in its own name; though even acting through its Directors/employees or agents, yet in the criminal law position was different. Despite generality of section 11, Penal Code, it was not indictable for offences which could be committed by human being only or offences which must be punished with imprisonment. The Trial Court, held, could not punish company and if any one of its acts amounted to an offence some one or more of its Directors or employees who did that the act would have to be held responsible for it. 1986 P Cr. L J 1265.

Substandard and misbranded drugs: The person guilty of offence a limited company while accused its director and employees. Vicarious liability, held, was imposed on every such Director and the employees of the company unless they proved that offence was committed without their knowledge or consent. 1986 P Or. L J 1265.

The Drug Analyst submitting his report beyond the period prescribed by law without obtaining extension from the Quality Control Board. The Drug Analyst, held, committed violation of the provisions of law and report sent him not in the prescribed form. 1985 P Cr. L J 281.

No offence u/s 23(1)(x) to entail punishment under Section 27(4) Proceeding Quashed: Since the case of the Inspector of Drugs is based on and erroneous view of the law, no case stands made out against the petitioner Company for violation of rule 32 of the Drugs Rules. 1976, which may entail any punishment under Section 27(4) of the Act. Since there is no allegation that the Physician's Sample was sold by the petitioner. Company to any one in contravention of any of the provisions of the Act or the rules, no offence stands made out for violation of Section 23(1) (x) of the Act as to entail any punishment under Section 24 (4) either. Proceedings pending before the Drugs Court under Section 23/27 of the Drugs Act, 1976, read with Section 32 of the Drugs Rules quashed. P L. D 1985 Lab. 503.

Interpretation of statutes: Where statutory powers are Conferred and specific provisions made in statute as to manner in which powers are to be exercised they should be exercised by authority strictly in the manner specified in the statute. 1985 P Cr. L J 281.

The charge against the accused was under section 18(b) of the Drugs Act and therefore an essential ingredient of the evidence was that the drugs sold by the accused were drugs which had been manufactured by an unlicensed manufacturer. And it was in order to prove this ingredient of the offence that the Inspector a P.W. had produced the letter of the Health Department, that the alleged manufacturers did not have. any licence to manufacture drugs, But the burden was on the prosecution to prove that the manufacturers did not have any licence under the Drugs Act, and as the accused had taken objection to the production of this letter the prosecution should have proved it in the manner prescribed under section 67 of the Evidence Act, and the prosecution did' not care to do. It was contended that the letter had not been proved. This. submission was supported by the unanimous view of the Supreme Court in the case of Muhammad Khattak v. SM. Ayub. 1974 P Cr. L J Note 81. Additionally there was also no provision in the Drugs Act which could relieve the prosecution of its obligation to prove this letter under Section 67 of the Evidence Act: Held, the letter had not been proved.

The contention that the process of "packing" or "re-packing" of drug was not an offence, within the purview of Section 27 of the Drugs Act repelled. 1983 P Cr. L J 2491.

Laboratory report showing drug substandard and no indication on record that accused notified to any of the prescribed authorities of their intention to challenge such report. Contentions that whole process of manufacturing was not completed nor drug was ready for marketing when drug secured nor laboratory report disclosed requisite protocols. Contentions were of no consequence therefore, the conviction was maintained. 1984 P Cr. L J 2007.

The contention that pills sought to be advertised by handbill being harmless and use thereof to any extent not being dangerous to life therefore manufacturer was not liable for any offence under the Drugs Act.

The contention was fallacious. Pills, held further, not having been manufactured as a drug in accordance with conditions of any licence obtained for the manufacture of any drug, manufacturer committed offence under Section 27 of the Drugs Act. Conviction and sentence were maintained, in circumstances. 1984 P Cr. L. J 2895.

Conviction of accused by the Drug Court for having substandard drugs. Reasonable possibility existing that samples which was obtained by the Drug Inspector and subsequently sent to the National Health Laboratories deteriorated after the acquisition of same due to adverse climatic conditions. Accused, held, entitled to the benefit of doubt and acquitted. 1984 P Cr. L J 1580.

Non-prosecution of Company--Directors or Employees could not be held vicariously liable: If the Company was found guilty of the offence then the burden was on the Directors or the employees of the Company to prove the non-existence of knowledge or consent on the part of the Directors or employees of the Company. Finding that Company was guilty of the offence was sine qua non to convict the Directors or employees of the Company that they were guilty of the offence. When the Company was not before the Court then no adverse finding could be given against the Company and in such a 'situation the Directors or Employers could not be held vicariously liable. Non-prosecution of Company itself was, therefore, fatal-for the prosecution. P L D 1991 893.

Appraisal of evidence: It was not proved through qualitative and quantitative analysis of the ingredients in the offending preparation that the active ingredient/constituent Methyl Salicylate had been used which formed part of the protected pharmacopocieas. Analyst's report did not determine the ingredients in the offending preparation quantitatively or even fully. It could not, therefore, be found that the accused did not use merely a herbal extract in its natural form for the purposes of his preparation. Offence alleged against the accused, held, had not be proved beyond reasonable doubt, the accused was acquitted in circumstances. 1990 M L D 1524.

If the company was found guilty of the offence the burden was on the Directors or the employees of the company to prove the non-existence of knowledge or consent on the part of the Directors or employees of the company. Finding that the company was guilty of the offence was sine qua non to convict the Directors or employees of the company that they were guilty of the offence. When the company was not before the Court then no adverse finding could. be given against the company and in such a situation the Directors or employees could not be held vicariously liable. Non-prosecution of company itself, was therefore, fatal for the Prosecution. P L D 1991 S C 893.

Appreciation of evidence: Evidence on record did not show that the accused was found selling the drugs recouered from his. Possession while keeping them in his shop without a licence. Drugs recovered could be available almost in every house for daily comsumption. Defence version was believable and the possibility of false implication if accused could not be ruled out. Accused was acquitted in circumstances. 1994 P Cr. L J 2468.

Charge against accused was two-fold; one that the drug recovered by the Drug Inspector from him was not registered and the other that it was spurious. Prosecution had not produced the concerned Authority of the Federal Government alongwith the record to prove non-registration of the drug. Sample taken into possession from the shop of the accused was also not sent to Public Analyst for analysis nor any public analyst was examined in Court. Sample having been sent to Quality Control Board for analysis four years after the recovery, no credence at all could be attached to its report which was not even proved. Spuriousness of the drug, therefore, was also not proved on record. Accused was acquitted accordingly. P L D 1997 Pesh. 49.

No sample of the drug seized by the complainant Drug Inspector having been taken and sent to the concerned Laboratory for analysis, it could not be said to be a spurious drug. Drug Inspector although alleged that the drug seized by him resembled a medicine manufactured by a local pharmaceutical company, yet he admittedly did not contact the said pharmaceutical company in this respect and failed to obtain the view of that company regarding the drug in question. Accused was acquitted in circumstances. 1996 P.Cr.L.J. 540.

Particles and fibres found in the drug could not make it adulterated or for that matter substandard--Government Analyst's report being silent about the protocols of the test or analysis as required under the Rules was fatally defective and even otherwise the same was unauthentic and inadmissible in evidence due to non-appointment of the Government Analyst within the meaning of the Drugs Act, 1976. No Notification was also available to show the appointment of the Drug Inspector prescribing the limits within which he could have acted as Provincial Inspector for the purpose of the Drugs Act as envisaged by S. 17. Accused being the Director and Manager of the Company manufacturing the seized drug could not be convicted of the offence unless proved to be having the knowledge or to have consented to such offence or when the company had been impleaded as an accused. Accused were acquitted in circumstances. 1996 P.Cr.L.J. 1183.

Non-Compliance of S. 30 of Drugs Act, 1976. Effect: Failure to raise objection to proceedings by the defence would not validate the proceedings otherwise invalid. Requirement of law enjoined by S. 30 of the Drugs Act, 1976 is meant to be complied with by the prosecution and if no objection had been raised by the defence at the trial, it would not validate the proceedings which otherwise stood vitiated for non-compliance of S. 30, Drugs Act, 1976. 1996 S C M R 767.

Appeal: The Trial Court before convicting the accused discussing evidence of witnesses as well as documents produced by them and facts deposed in evidence as well as given in documents not disputed by the accused. Conviction and sentence were maintained. 1986 P Cr. L J 1265.

Jurisdiction of the Drugs Tribunal : Sub-standard drugs manufactured at 'L', sold at 'L' and thereafter sold within the territorial jurisdiction of the Drugs Court at 'K'. Consequences of manufacturing substandard drugs at place other than the place of sale of such drugs. Drugs Tribunal at 'K', would have jurisdiction to try offences under the Drugs Act and no exception could be taken to impugned order passed by the Tribunal at 'K'. 1987 M L D 1819.

Petitioner's conviction based on his own plea of guilt: Having admitted that the drugs recovered from him was sub-standard, declined to produce any evidence in defence. There is no interference called for in the case. Leave to appeal was refused. 1985 S C M R 1405.

Offence by company: The company had to be found guilty of the offence before its Directors and/or employees could be convicted. P L D 1991 SC 893.

Marking 'DHS' on the packings and coverings of the drugs apparently indicated that they were property of the 'Director Health Services', Punjab, or for that matter of the Health Department of the Provincial Government and if the story of prosecution regarding the transportation of some quantity of the drugs and medicines by the accused in his car was correct, then the possibility of such drugs and medicines being taken to the Medical Stores of Director Health Services (MSD) or the same being secretly brought from the MSD for sale to certain wholesale or retail dealers of drugs in a clandestine manner could not be excluded. Neither the Drugs Inspector nor the SHO constituting the raid party had explained as to the destination of the drugs being transported by the accused in his car. To probe into such aspect of the matter to bring to book the real culprits and also in the larger interest of justice the case was remanded to the trial Court with necessary directions for deciding the same afresh in accordance with law. 1992 P Cr. L J 1781.

Prosecution witnesses were responsible Government Officers who in the performance of their statutory duty without any mala fides on their part had conducted the raid taking all precautions and observing legal formalities. Defence evidence on the other hand did not inspire confidence. Conviction and sentence of the accused were upheld in circumstances. 1992 S C M R 2072 (b).

No prosecution launched against the company which manufactured drugs in question. Accused not shown to be acting as Agent of the Company for distribution of substandard drugs. In the absence of company, accused, held, could not be prosecuted. The liability of manufacturer of drugs and his agent for distribution thereof would be co-extensive. 1985 P Cr. L J 268.

According to the case of Fazal Ellahi v. State, 1985 P Cr. L J 268, substandard drugs manufactured by a private limited company and not impleaded as a principal accused alongwith other accused who were directors of the Company. The accused was acquitted.

According to the case of Muhammad Saeed v. The State, 1985 P Cr. L J 1440. the trial Court convicting the accused on his statement treating the same as confession, without framing of charge under Section 242, Cr.P.C. Question of conviction of the accused on his statement in circumstances held, could not arise. Conviction and the sentence set aside and the case remanded for trial according to law.

Conviction on charge of keeping substandard drugs on plea of guilty by accused: Accused not only pleaded guilty but admitted that the drugs recovered from him were substandard and declined to produce any evidence. Leave to appeal refused on ground that there was no reason why after complaint and appearance in the Drug Court accused should remain unaware that he was making statement in Court in proceedings which might result in his conviction and the sentence on his own plea of guilty. 1985 S C M R 1827.

Appeal against acquittal: The accused respondents had a right to request for retesting of samples and Section 22 (5) of the Drugs Act, 1976, makes it compulsory for prosecution to send the samples for retesting to .the Federal Drugs Laboratory or any other laboratory specified for the purpose by the Federal Government. The accused had not given up their such request and their right could not be brushed aside on basis of their letters which did not amount to unconditional admission of guilt as provisions of law have to be strictly followed Letters were addressed to the Provincial Quality Control Board and not to proper quarters. The trial Court, held, had rightly given benefit of doubt to the accused in view of clear violation of section 22(5) of the Drugs Act, 1976. Appeal against the acquittal was dismissed in circumstances 1990 P Cr. L J 865.

Prosecution could be instituted under the law either by a Federal Drug Inspector or Provincial Drug Inspector and complainant in the case did not hold any of these positions. Complainant being not competent to institute the case/prosecution before the Drug Court, the entire proceedings stood vitiated. View taken by High Court resulting in acquittal of accused was correct and in consonance with law. Leave to appeal was refused accordingly. 1996 S C M R (b) SC (Pak.) 767.

Prosecution and Proceedings Quashed : Prosecution of drug manufactures for offences under Section 28/27, was challenged contending that (i) FIR was registered on complaint by Magistrate who was alien to Drugs Act; (ii) prosecution was initiated by granting approval without personal hearing to accused as required by R. 4(3). Drugs Rules (1988) (iii) Report of Government Analyst was inadmissible in evidence. Held, Prosecution and proceedings merited quashing under Section 249-A, Cr.P.C. as there was no probability of conviction of accused in view of force in contentions raised in support of application under Section 249, Cr.P.C. N L R1993 Cr. L J 31.

Petitioner stored and was selling spurious drug: It was contended that the report of the Government Analyst on the basis of which it was 'held by the Courts below that the Petitioner had stored for sale and was selling a spurious drug viz., Tetracycline Pediatric Powder was not comprehensive in proving that the drug recovered from the petitioner was in fact spurious. Held, that a Drug which purported to be a particular Drug but does not contain its active ingredients is a spurious drug. Further held, that the report of the Government Analyst proved that the Drug Tetracycline Pediatric powder which was kept in store for sale and was sold by the Petitioner did not contain the relevant ingredients but rather contained Kaolin and Coco powder. The petitioner at the time the sample was taken was given a set of that sample but did not prove by leading any evidence that the Drug contained the necessary components and was genuine and not spurious. Thus the contention raised by the petitioner was repelled. P L D 1981 S C. 352.

Quashing of F.I.R : Registration of the F.I.R. in respect of the offence was not a case classified by the Provincial Quality Control Board, nor the Provincial Inspector had submitted a report to the said Board. Provincial Inspector had also not obtained instructions from the Provincial Quality Control Board regarding the registration of the F.I.R. and on his own had got the same registered which act being without lawful authority was declared to be of no legal effect. Constitutional petition was accepted accordingly. 1994 P Cr. L J 1065.

Leave to appeal: The leave to appeal was granted to consider that the trial of the accused persons was illegal, in that, sanction from the Quality Control Board was obtained against the Company (Manufacturer) and not against the accused persons (General Manager and Director, Plant Manager, Production Manager, Quality Control Manager and Controller) and that the company as such was not impleaded as an accused and that the High Court erred in invoking section 34 of the Act in this behalf. P L D 1991 SO 893.

Drug Inspector in the interest of secretary and protection had sought the assistance of the C.I.A. Staff excluding the participation and association of the police stations having jurisdiction or even the respectables of the locality. Such a caution on the part of the Drug Inspector would not make the proceedings suspect for non-inclusion of a respectables of the locality. 1992 S C M R 2072.

The trial Court had omitted to extend benefit of section 382-B, Cr.P.C. to the accused without noticing any feature justifying such a denial. Benefit of section 382-B, Cr.P.C. was allowed to the accused accordingly. 1992 S C M R 2072 (c).

28. Penalty for subsequent offence : (1) Whoever having been convicted of an offence under sub-section (1) of section 27 is convicted for a subsequent offence under that sub-section shall be punishable with imprisonment for life or with imprisonment which shall not be less than five years and with fine which may extend to two lakh rupees.

(2) Whoever having been convicted of an offence under sub-section (4) of section 27 is convicted for a subsequent offence under that sub-section shall be punishable with imprisonment for a term which shall not be less than two years or more than ten years, or with fine which may extend to two lakh rupees, or with both.

(3) Whoever having been convicted of an offence under sub-section (4) of section 27 is convicted for a subsequent offence under that sub-section shall be punishable with imprisonment for a term which may extend to seven years, or with fine which may extend to one lakh rupees, or with both.

29. Forfeiture : (1) Where any person has been convicted under this Act, for contravening any such provisions of this Act or any rule as may be prescribed in this behalf, the Drug Court may order that the stock of drug or substance by means of or in relation to which the offence was committed or anything of a similar nature belonging to or in the possession of the accused or found with such drug or substance, and if such contravention is punishable under sub-section (1) of section 27, any implements used in manufacture or sale of such drug and any receptacles, packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances, used in carrying such drug, be forfeited to the Federal Government or, as the case may be, the Provincial Government and, upon such order being made, such .drug, substance, implements, receptacles, packages or coverings, animals, vehicles, vessels or conveyance may be disposed of as that Government may direct.

(2) Without prejudice to the provisions of sub-section (1), where the Drug Court is satisfied on the application of an Inspector or otherwise, and after such inquiry as may be necessary that a drug contravenes the provisions of this Act, the Drug Court may order that such drug be forfeited to the Federal Government or, as the case may be, the Provincial Government and, upon such order being made, such drug may be destroyed or otherwise disposed of as that Government may direct.

(3) An Inspector shall release any drug or article seized by him under this Act when he is satisfied that all the provisions of this Act and the rules with respect thereto have been complied with.

Power of confiscation can be exercised provided the prosecution ends in conviction of the accused. When the Appellate Court acquitted the accused but maintained the order of confiscation of medical packets the order was set aside. 1971 P Cr. L J 641.

	Web Paksearch.com

Home | About Us | Contact | Information Resources