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30. Cognizance
of offences: (1) Subject to the provisions of Section 19, no prosecution shall be
instituted under this Chapter except--
(a) by a Federal Inspector, where the prosecution is in respect of a contravention of
clause (h) of sub-section (1) of section 23 or section 24 or any of the provisions of this
Act or the rules relating to the import or export of drugs or the manufacture for sale, or
sale, of a drug which is not for the time being registered or for the manufacture for sale
of which a licence is not for the time being in force; or
(b) by a Provincial Inspector:
Provided that, where the public interest so requires, the Federal Inspector may, with the
prior permission of the Federal Government, institute a prosecution for a contravention of
any other provision of this Act.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of
1898),--
(a) an offence punishable under this Chapter other than an offence mentioned in
sub-section (1) of section 27, shall be non-cognizable, and
(b) no Court other than a Drug Court 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
punishable under this Chapter or to require the transfer to a Drug Court of any case which
may be pending in any Court immediately before the establishment of the Drug Court.
COMMENTS
Question of lodging report with police and arrest of accused are not dealt with by the
Drugs Act. Provisions of the Criminal Procedure Code, 1898 will, therefore, govern such
matters. P L D 1976 Lab. 813,
Where the witness was not cross-examined on the point the Magistrate was held to have
erred in holding that the witness was not an Inspector of Drugs merely because he did not
produce documentary evidence about his appointment. 1974 P Cr. L J Note 81, p. 50.
In a prosecution under the Act the complainant has to prove by bringing evidence on record
that he is an Inspector, whether that fact is challenged by the accused or not. His mere
allegation in the complaint that he is an Inspector and the failure of the accused to
cross-examine him on that point are not proof of his status. 1955 B L J R 40.
The prosecution instituted by a person whose appointment as Drugs Inspector was not
notified within the meaning of section 17, violates provisions of the section 30 where
under no prosecution could be instituted except by a properly appointed Drugs Inspector.
It was held that since there was a legal defect in institution of instant case it was not
possible to maintain conviction of the appellant or sentence awarded to him under section
27(4). Appeal was allowed, conviction was set aside and the appellant was acquitted. N
L R 1981 Criminal 369; 1982 P Cr. L J 48.
Report to Police: Question of lodging of report with police and arrest of accused
not dealt with by Drugs Act. Provisions of Criminal Procedure Code, 1898, hence, govern
such matters. P L D 1976. Lah. 813.
In the Court of Sindh Quality Control Board of Drug M/s. Pioneer Laboratories Karachi: Having
heard the appeal, the Supreme Court take up a more important question involved in
principle namely, whether in a Criminal prosecution it is proper to exercise jurisdiction
under Art, 199 of the constitution, particularly when remedies have been provided under
the statute to the accused. In a prosecution under the Drugs Act, the provisions of the
Code of Criminal Procedure are applicable, and the trial by the Drugs Court is conducted
as provided by the Drugs Act as well as the Code of Criminal Procedure. Under Section
31(4) of the Drugs Act a Drugs Court has all the powers conferred by the Code of Criminal
Procedure on a Court of a Session exercising original jurisdiction. Therefore whether the
cognizance of offence could be taken under Section 30 in view of the objection raised by
the respondent in the constitution Petition before the High Courts, could be pressed
before the Drugs Court under Section 265-K, Cr. P.C. for challenging the proceedings if
they were defective and not as provided by Section 30 of the Drugs Act. In such
circumstances the High Court should have refused to exercise discretion under Article 199
of the Constitution. 1993 S C M R 1177.
31. Drug Courts : (1) The Federal Government may, by notification
in the official Gazette, establish as many Drug Courts as it considers necessary and,
where it establishes more than one Drug Court, shall specify in the notification the
territorial limits within which, of the class of cases in respect of which, each one of
them shall exercise jurisdiction under this Act.
(2) A Drug Court shall consist of a person who is, or has been, or is qualified
for appointment as, a Judge of a High Court, who shall be the Chairman, and two
members being persons who, in the opinion of the Federal Government, are experts
in the medical or pharmaceutical fields;
Provided that for deciding applications of bail the Chairman
and any one member shall constitute full quorum of a Drug Court
(3) A Drug Court shall sit at such place or places as the Federal Government may direct.
(4) A Drug Court shall have all the powers conferred by the Code of Criminal Procedure,
1898 (Act V of 1898), on a Court of Session exercising original jurisdiction.
(5) A Drug Court shall not merely by reason of a change in its composition, be bound to
recall and rehear any witness who has given evidence, and may act on the evidence already
recorded by or produced before it.
(6) A Drug Court shall, in all matters with respect to which no procedure has been
prescribed by this Act, follow the procedure prescribed by the Code of Criminal Procedure,
1898 (Act V of 1898), for the trial of summons cases by Magistrates.
(7) A person sentenced by a Drug Court may prefer an appeal to a Bench of the High Court
consisting of not less than two Judges within thirty days of the judgment.
(8) The provisions of Sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall be
applicable to an appeal referred to in sub-section (7).
COMMENTS
Revisional jurisdiction of High Court, is available in cases tried under the Drugs Act,
1976: Even if the Drugs Act, 1976: did not confer High Court revisional jurisdiction,
same could be invoked under Sections 435 and 439, Criminal Procedure Code. High Court,
under section 31, Drugs Act, could exercise appellate jurisdiction against decision of the
Drugs Court thus Drugs Court is an 'inferior' Court. Use of the word 'inferior' in section
435, Criminal Procedure Code, enables the High Court to exercise revisional jurisdiction
in respect of those Courts also which were not subordinate to it in technical sense. High
Court is competent to exercise revisional jurisdiction and could interfere to the extent
of examining the correctness, legality or propriety of any finding, sentence or order
recorded or passed and as to regularity of proceeding pending before the Trial Court. All
powers allowed under sections 435 and 439, Criminal Procedure Code, could be exercised by
the High Court. P L D 1986 Kar. 390.
Under repealed Act of 1940, in the event of conviction by a Magisterial Court, accused had
aright to file an appeal against the order of conviction, in Sessions Court and yet a
further remedy of revision in High Court, against dismissal of appeal, while under the
repealing Drugs Act of 1976, accused having only one remedy by way of appeal to High
Court. Rule of retrospectivity would not be applicable as change in procedural law affects
a "vested right, of accused under old law unless an express provision to take such
right made in new law. The trial of the accused by the Drugs Court, constituted under
section 31 of the Drugs Act, 1976, for an offence committed by him under section 18 (a) of
the Drugs Act, 1940 and his eventual conviction for such offence, was illegal and without
jurisdiction. The conviction and sentence was set aside in circumstances. 1980 P Cr. L
J 1212.
Complaint in the Drug Court for taking action against the accused for manufacturing
substandard quality of vitamins. The accused challenged such action in the High Court
through constitutional petition, which was validly allowed. Exercise of the Constitutional
jurisdiction by the High Court in a criminal prosecution was not proper particularly when
remedies had been provided under the Statute (Drugs Act, 1976) 1o the accused. Case was
directed to proceed before the Drug Court where the respondents would be at liberty to
raise such objections as would be possible under law. P L D 1993 SC (Pak.) 1177.
The word "inferior" substituted in section 435 for the word
"subordinate" appearing in Section 295 in order to keep hands of High Court
quite free in dealing with a case in its ultimate stage of revision, etc. Drugs Court
having been made subject to appellate jurisdiction of High Court, and, in such sense,
inferior to High Court, High Court, could exercise revisional jurisdiction against the
orders of the Drugs Court. Having made Drugs Court judicially inferior to High Court no
necessity existed for duplicating matter over again by expressly providing for a
revisional jurisdiction of High Court. P L D 1981 S C 352.
Sanction for lodging complaint: Drug Inspector obtaining sanction for lodging
complaint from the Provincial Quality Control Board against the accused who were actively
connected with accused company and lodged complaint against them. But omitting to get such
sanction and consequently to lodge complaint, regarding accused company. Second complaint
lodged against the accused company afterwards without getting such sanction. The High
Court finding that Provincial Quality Control Board after considering matter and reports
from the laboratories had concluded that prosecution be launched against the manufacturer.
Intention of Board very clear that manufacturer of drugs to be prosecuted which included
company also. The defect of not getting sanction against the accused company, was merely
procedural in nature and not vitiating proceedings. No bar was present against
consolidation of both complaints by the trial Court. 1985 P Cr. L J 2064.
"Dihydrallazine" or "Dihydralline Sulphate" : Protocols of
tests (details of process of tests) was not provided with report by Analyst. Sample was
sent to Federal Laboratory did not' appear to be the same sample as sealed and marked by
the Inspector. Federal Laboratory tested and analysed "Dihydrallazine tablets"
instead of testing and analysing "Dihydrallazine Sulphate" tablets. Provisions
of Act and Rules with regard to despatch of samples and submission of report not observed
with complete strictness. Accused, held, could not be prosecuted and convicted in
circumstances. Direction contained in Section 19(2) of Act and rules 14 and 15 in regard
to making of sample, could not directory but mandatory. In absence of "nil
mark", Drug Court could not convict the accused on ground of report of analyst that
sample was substandard. Importance of strict observance in regard to sample emphasised in
Form No. 6.
Adulterated drug--Test report : Action of the Provincial Quality Control Board for
sending sample for second report when first test report was already adverse to accused was
uncalled for. The report in second test also adverse but findings in both reports
conflicting with each other. Test report not made on the prescribed form. Details of
result of test or analysis not given in report. Report not to be relied. upon test report
of sample showing that sodium bicarbonate was found to be 1.24% whereas limit was 0.98.1%
Sodium bicarbonate in sample was found to. be in excess of by 0.24% as against 1%. Such
excess found to be neither dangerous nor detrimental as still the ingredient was within
the range of normal dose. Prosecution, therefore, failed to prove case in circumstances. 1985
P Cr. L J. 2064.
Revisional jurisdiction of High Court: Drugs Court having been made subject to
appellate jurisdiction of High Court, and in such sense, inferior to High Court. High
Court held, could exercise revisional jurisdiction against orders of Drugs Court, Having
made drugs Court judicially inferior to High Court, no necessity held further, existed for
duplicating matter over again by expressly providing for a revisional jurisdiction of High
Court. P L D 1981. Supreme Court: 352.
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. Coviction and sentence were maintained.
1986 P Cr. L J 1265.
32. Pleas: (1) Save as hereafter provided in this section, it
shall be no defence in a prosecution under this Act to prove merely that the accused was
ignorant of the nature, substance or quality of the drug in respect of which the offence
has been committed or of the circumstances of its manufacture or import, or that a
purchaser, having bought only for the purpose of test or analysis, has not been prejudiced
by the sale.
(2) A drug shall not be deemed to be misbranded or adulterated or sub-standard only by
reason of the fact that there has been added thereto some innocuous substance or.
ingredient because the same is required for the manufacture or preparation of the drug fit
for carriage or consumption and not to increase the bulk, weight or measure of the drug or
to conceal its inferior quality or other defect or there is a decomposed substance which
is the result of a natural process of decomposition:
Provided that such decomposition is not due to any negligence on the part of the
manufacturer or the drug or the dealer thereof and that it does not render the drug
injurious to health or does not make it substandard.
(3) A person, not being the manufacturer of a drug or his agent for the distribution
thereof, shall not be liable for a contravention of section 23 if he proves--
(a) that he did not know, and could not with reasonable diligence have ascertained, that
the drug in any way contravened the provision of this Act and that the drug while in his
possession remained in the same state as when he acquired it; and
(b) that he acquired the drug from a duly licensed manufacturer or his authorised agent or
an importer or an indentor resident in Pakistan under a written warrant, in the prescribed
form stating, in particular. the batch number of the drug and signed by such person that
the drug does not in any way contravene the provisions of Section 23 and that the drug
while in his possession was properly stored and remained in the same state as when he
acquired it and that the drug has been manufactured by a manufacturer holding a valid
licence to manufacture drugs and permission to manufacture that drug:
Provided that a defence under clause (b) shall be open to a person only--
(i) if he has, within seven days of the service on him of the summons, sent to the
Inspector a copy of the warranty with a written notice stating that he intends to rely
upon it and giving the name and address of the warrantor, and
(ii) if he proves that he has, within the same period, sent written notice of such
intention to the said warrantor.
33. Application of law relating to customs and powers of officers of
customs : (1) The law for the time being in force relating to customs and to goods the
import of which is prohibited by or under the Customs Act, 1969 (IV of 1969), shall,
subject to the provisions of section 27 of this Act, apply in respect of drugs the import
of which is prohibited under this Act, and officers of customs and officers to whom any of
the functions of an officer of customs have been entrusted under the said Act shall have
the same powers in respect of such drugs as they have for the time being in respect of
such goods as aforesaid.
(2) Without prejudice to the provisions of sub-section
(1), an officer of customs or a Federal Inspector or any other person as may be authorised
by the Federal Government in this behalf may detain any imported package which he suspects
to contain any drug the import of which is prohibited under this Act, and shall forthwith
report such detention to the licensing authority and, if required by it, forward the
package or samples of any suspected drug found therein to a laboratory specified by it.
34. Offences by companies, etc.: Where the person
guilty of an offence under this Act, is a company, corporation, firm or
institution, every director, partner and employee of the company, corporation,
firm or institution [with whose knowledge or consent the
offence was committed shall be guilty of the offence]
COMMENTS
Vicarious liability : No evidence produced by Director of the accused firm that
substandard drug manufactured without his knowledge or consent. The accused was equally
responsible for offence by virtue of being a Director of accused firm. The conviction was
maintained, in circumstances. 1984 P Cr. L J 2007.
According to the case of Fazal Ellahi v. The State, 1985 P Cr. L J 268,
where the person guilty of offence was a company, vicarious liability was imposed on a
Director, a partner or employer unless they prove that offence was committed without their
knowledge.
Offence by company: The company itself was not impleaded as an accused but the
General Manager and Director, Plant Manager, Production Manager, Quality Control Manager
and Controller of the Company were convicted and sentenced under Section 27 (2)(b) and
(4). Held, company having not been impleaded as an accused in the proceedings
constituted against the accused persons, conviction and sentence of the accused persons as
such was not legal. The accused persons being the employees and Director of the company,
could be held to be guilty of the offence, provided the company, was found guilty of the
offence. P L D 1991 SC 893,
Substandard and misbranded drugs: The person quilty of offence a limited company
while the accused its director and employees. The vicarious liability, 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.
Substandard drugs--Manufactured by a Company-Responsibility: The Drug Inspector to
find out, as to which of directors, partners or employees, etc., were prima facie concerned
and responsible for manufacturing substandard drug, and would launch prosecution against
such persons alongwith principal accused, i.e., Corporation, firm or institution. 1985
P Cr. L J 268.
Conviction of employees of the company: If the company which is a juristic person
is not impleaded as an accused, its employees cannot be guilty of the offence. 1996
P.Cr.L.J. (b) 1183.
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. The conviction and sentence were
maintained. 1986 P Cr. L J 1265.
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 SC 893.
35. Publication of offender's name: (1) If any person is
convicted of an offence under this Act, it shall be lawful for the Drug Court to cause the
offender's name, place of residence, the offence of which he has been convicted and the
penalty which has been inflicted upon him, to be published at the expense of such person
in such newspapers or in such other manner as the Court may direct.
(2) The expenses of such publication shall be recoverable in the same manner as a fine is
recoverable.
36. Powers to exempt : Notwithstanding anything contained in this
Act, the Federal Government may, if it is of opinion that the public interest so requires,
at any time, of its own motion or on a representation made to it, by notification in the
official Gazette, exempt any drug or class of drugs from the operation of any of the
provisions of this Act, subject to such conditions, if any, and for such period, as may be
specified in the notification.
COMMENTS
S.R.O. 1090(1)/92, dated 5-11-1992: In exercise of the powers conferred by section
36 of the Drugs Act, 1976 (XXXI of 1976), the Federal Government being of the opinion that
the public interest so requires, is pleased to exempt the drugs specified below from
operation of the provisions of the said Act, except sections 24 and 25, till further
orders, namely:--
(i) Infant formula; and
(ii) Infant food.
37. Inspectors to be public servants : Every Inspector shall be
deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code
(Act XLV of 1860), and shall be officially subordinate to such authority as the Government
appointing him may specify in this behalf.
COMMENTS
Public servant: According to the Pakistan Penal Code the Public servant is as
follows :-
The words "public servant" denote a person falling under any of the description
hereinafter following, namely: -
First: [Omitted].
Second: Every commissioned Officer in the Military, Naval Or Air Forces of Pakistan
while serving under the Federal Government or any Provincial Government;
Third: Every Judge;
Fourth: Every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate, or keep any
document, or to take charge or dispose of any property, or to execute any judicial
process, or to administer any oath or to interpret, or to preserve order in the Court; and
every person specially authorised by a Court of Justice to perform any of such duties;
Fifth: Every juryman, assessor, or member of a punchayat assisting a Court of Justice or
public servant;
Sixth: Every arbitrator or other person to whom any cause or matter has been
referred for decision or report by any Court of Justice, or by any other competent public
authority;
Seventh: Every person who holds any office by virtue of which he is empowered to
place or keep any person in confinement;
Eighth: Every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to justice, or to
protect the public health, safety or convenience;
Ninth: Every officer whose duty it is, as such officer, to take, receive, keep or
expend any property on behalf of the Government, or to make any survey, assessment or
contract on behalf of the Government or to execute any revenue process, or to investigate,
or to report on any matter affecting the pecuniary interests of the Government, or to
make, authenticate or keep any document relating to the pecuniary interests of the
Government, or to prevent the infraction of any law for the protection of the pecuniary
interests of the Government and every officer in the service or pay of the Government or
remunerated by fees or commission for the performance of any public duty;
Tenth: Every officer whose duty it is, as such officer, to take, receive, .keep or
expend any property, to make any survey or assessment or to levy any rate or tax for any
secular common purpose of any village, town or district, or to make, authenticate or keep
any document for the ascertaining of the rights of the people of any village, town or
district;
Eleventh: Every person who holds any office in virtue of which he is empowered to
prepare, publish, maintain or revise an electoral roll or to conduct an election or part
of an election.
Illustrations
Municipal Commissioner is a public servant.
Explanation 1: Persons falling under any of the above descriptions are public
servants, whether appointed by the Government or not.
Explanation 2: Wherever the words "public servant" occur, they shall be
understood of every persons who is in actual possession of the situation of a public
servant, whatever legal defect there may be in his right to hold that situation.
Explanation 3 : The word "election" denotes an election for the purpose
of selecting members of any legislative, municipal or other public authority, of whatever
character, the method of selection to which is by, or under, any law prescribed as by
election.
38. Indemnity : Except as otherwise expressly provided in this
Act, no suit, prosecution or other legal proceeding shall lie against Government or any
other authority or person for anything which is in good faith done or intended to be done
under this Act or any rule.
39. Finality of order, etc.: Save as otherwise expressly provided
in this Act, every order passed or decision given by any Board, a Drug Court or any other
authority under this Act shall be final and shall not be called in question by or before
any Court or other authority.
COMMENTS
Finality was attached to orders of Drugs Court, subject to any other provision provided
otherwise. Such provision in case in hand; incident of Drugs Court being inferior to the
High Court by virtue of its orders had been made appealable to High Court. Section 2 of
Act not barring application of other laws and provisions of Act having been made subject
to "any other law for the time being in force". Sections 435 and 439, Criminal
Procedure Code, 1898 were fully attracted to the Drugs Court. P L D 1981 S C 352.
40. Publication of result of test or analysis, etc.: (1) It shall
be lawful for the Federal Government to publish, in such manner as it may deem fit, the
result of any test or analysis of any drug for public information and to pass such orders
relating to the withdrawal of such drug from sale and its disposal as it may consider
necessary.
(2) The Federal Government may, if it considers it necessary in the public interest so to
do, publish for public information, in such manner as it may deem fit, any information
relating to a drug or to the use of a drug in specified circumstances.
41. Cancellation or suspension of licences: Where any person has
been found to have contravened any of the provisions of this Act, or the rules in respect
of any drug and the contravention is of such a nature that the import, export, manufacture
or sale of any drug by such person is, in the opinion of the licensing authority or the
Central Licensing Board, likely to endanger public health, that authority may, after
giving such person an opportunity of being heard, cancel the licence to import, export,
manufacture or sell drugs issued to such person or suspend such licence for a specified
period.
42. Cancellation or suspension of registration of registered drugs:
Where any person has been found to have contravened any of the provisions of this Act, or
the rules in respect of any registered drug, the Registration Board may, after giving such
person an opportunity of being heard, cancel the registration of such drug or suspend such
registration for a specified period.
COMMENTS
Registration cancelled without hearing: Cancellation of registration of drug
without hearing petitioner. Authority expressed its willingness to take up petitioner's
case and to rehear him on condition that contesting respondent would also be heard
alongwith petitioner. Petition disposed of in terms of statements of respondents. 1989
M L D 2227.
