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Criminal Reference No. 73 of 1975, decided on 14th April 1977.

- S. 540 read with Drugs Act (XXIII of 1940), Ss. 25(3) & 46 Witness, summoning of-Report of Public Analyst not complete with "full protocols of test" and silent as to how he arrived at conclusion regarding low percentage of tetracycline hydrochloride in sample-Order of trial Court rejecting application for summoning Public Analyst as witness set aside, in circumstances-Court further directed to summon witness to produce full protocols of tests, in interest of justice.-[Witness]

S. Dutta v. State A I R 1969 Cal. 427 ref.

Nooruddin Sarki for the State.

M. Farooq Hashim for Respondent.

Date of hearing : 14th April 1977.

This is a reference by the 1st Additional Sessions Judge, Karachi recom mending that the order passed by A. C. M. Court No. 1, Karachi refusing. To summon the Government Analyst as a defence witness may be set aside.

2. Respondent Abdul Ghani, Proprietor of Messrs Anglo-Pak. Pharma ceuticals, Karachi was prosecuted by Inspector of Drugs, Karachi for an offence under section 18 (a) (i) read with sections 27 and 28 of the Drugs Act, 1940 for having on 20-7-1973 sold a sample of tetracycline syrup manu factured by him under batch No. 105 to Messrs National Agencies, Wahab Arcade, Denso Hall, Karachi under a written warranty-the said sample being not of the standard quality as the said sample contained 80.75 m. g /5 m. 1. of tetracycline hyrochloride instead of 125 mg/5 ml. The prosecu tion examined Drugs Inspector Mr. Muhammad Siddiq who produced the report of the Government Analyst as described above. The accused/respon dent challenged this report and he made an application for summoning the Government Analyst as a witness under section 94/257, Cr. P. C. This appli cation was made on 13-7-74 when section 257 was still in force and had not been omitted from the Cr. P. C. This application was rejected by tile A. C. M. Court No. 1, Karachi oils the ground that the application was mad-. for the purpose of vexation and delay.

3. It has been argued by Mr. Farooq Hashim on behalf of the respondent that under section 25(3) of the Drugs Act, 1940, which was, applicable at the time of the alleged commission of this offence, the report Government Analyst shall be conclusive unless it had been challenge, within 28 days of the receipt of the copy of that report by the accused hat it was true that this was not done within the prescribed time, but the report could be conclusive only when it was a complete report as defined in rule 46 of the Drugs Rules, 1945. Rule 46 shows that under this report the analyst send result of the test or analysis together with full protocols o' site tests applied. In S. Dutta v. State (A I R 1969 Cal. 427) it has been observed that the expression full protocols of tests supplied" means an official statement or account of a proceeding as a description of an experiment or clinical report viz, the various tests employed by the analyst to test the purity of the drub should in fact be embodied in the report itself, for instance the report in that case contained full description of the experiments as under:-

"Test for Purity 1 c. c. of the oil was boiled with 1.5N alchoholic potash under reflux condenser for 10 rots. 50 c. c. alcohol (70 per cent) and 0.8 c. c. Hcl. added. The mixture was stirred with a thermometer in it. Turbidity appeared at above 38 C (Genuine olive oil should riot show turbidity above 9 C)"

It is true that in the present case it has not been shown by the public analyst how he arrived at a conclusion regarding low percentage of tetraycline by hydrochloride in the sample. Full description of the test applied should have been given as that is meant by the term full protocols of the test applied'.

4. Since the report was not a complete report as contemplated under the Drugs Act it could not be considered as being conclusive under sec tion 25 (3) of the Drugs Act, 1940. Under these circumstances it was necessary and in the interest of justice to call the public analyst and this, could be done under section 257 at that time and under section 540 now after the amendment.

5. The, order of the A. C. M. rejecting the application is accordingly set aside and it is directed that the public analyst may be summoned to produce full protocols of the tests applied in the present case, in the interest of justice.

The reference is accepted accordingly.

Reference accepted

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