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 THE DRUGS ACT (XXXI OF 1976) [llth May, 1976] An Act to regulate the import, export, manufacture, storage, distribution and sale of drugs Preamble : Whereas it is expedient to regulate the import, export, manufacture, storage, distribution and sale of drugs: It is hereby enacted as follows:– 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. COMMENTS 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 fideson 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. COMMENTS 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. 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”>

(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.
COMMENTS

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 fideson 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.
COMMENTS
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.

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 facieconcerned 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