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Criminal Appeal No. 43 of 1981, decided on 4th April, 1984.

--S. 22(4)--Government Analyst's report, admissibility of-- Accused failed to challenge Government Analyst's report within statutory period of 30 days by notifying to any of authorities speci fied in subsection (4) of S. 22 of Act, regarding their such intention -Report, held, conclusive proof of its contents-Contention that report being silent about full protocols, held further, of no con sequence.

State v. Abdul Ghani 1977 P Cr. L J 822 ref.

---S. 27-Sub-standard drug-Evidence, appreciation of-Laboratory report showing drug sub-standard and no indication on record that accused notified to any of prescribed authorities of their intention to challenge such report-Contentions that whole process of manu facturing was not completed nor drug was ready for marketing when drug secured nor laboratory report disclosed requisite proto cols-Contentions, held, of no consequence, in circumstances --Conviction maintained.

State v. Abdul Ghana 1977 P Cr. L J 822 ref.

--S. 34-Vicarious liability-No evidence produced by Director of accused firm that sub-standard drug manufactured without his knowledge or consent-Accused, held, equally responsible 'for offence by virtue of being a Director of accused firm-Conviction maintained, in circumstances.

Superintendent of Police, Federal Investigation Agency, Lahore and another v. Akhtar Hussain Bhutta P L D 1978 S C 193 ref.

---S. 27-Sentence-Mitigation-Sub-standard drug not yet gone in market and accused realizing that it was sub-standard drug destroy ing its entire stock-Sentence altered to that of fine only, in cir cumstances.-(Sentence).

Imam Ali Qazi for Appellant.

Khurshid Akhtar Qureshi for the State.

Date of hearing: 3rd April, 1984.

This appeal bas arisen from the judgment of the Drug Court, Sind and Baluchistan, dated 24th February, 1981 whereby the appellants, S. A. Rehman and Hasnat Ahmed Alvi who are respectively Director and Quality Control Incharge of the accused Company, Messrs Anfords (Pak) Ltd., were convicted under section 27(4) of the Drugs Act, 1976 (hereinafter referred to as the Act) and sentenced to S.I. for one month and fine of Rs. 5,000 each or in default imprisonment for three months.

Briefly stated the facts of the case are that on 1st January 1979, Mr. Abdul Jabbar, Drug Inspector, Karachi, visited the factory premises of Messrs Anfords Ltd., which situates in the S.I.T.E. Area, Karachi and in presence of the accused/appellant, Hasnat Alvi, Control Incharge, secured three boxes, each containing 100 ampules of the drug, namely water for injection with Batch No. 78162 manufactured by the said firm and prepared memo in the prescribed form. He gave one sample of the secured drug to the accused Hasnat Ahmed Alvi and obtained receipt from him and for warded another sample to the Central Drug Laboratory for analysis and report. He has produced the report of the laboratory which shows the drug in question as sub-standard. After obtaining necessary sanction for prosecution of the accused, from the Provincial Quality Central Board, Mr. Allah Bachayo the successor-in-office of Mr. Abdul Jabbar, Drug Inspector, lodged complaint in the Drug Court.

The accused in their statements in the Court have not denied the securing of the drug in question from the factory premises in presence of accused Hasnat Ahmed Alvi. However, they have averred that by the time the drug was secured by the Drug Inspector, the process of manu facturing was not completed and the drug was not ready for marketing purposes. It was further stated by accused that on being found that the drug was sub-standard, it was destroyed.

After hearing the arguments addressed at the Bar, the appeal was disposed by a short order dated 3rd April 1984 for reasons to be recorded separately. According to the short order while maintaining the conviction of the accused the sentence awarded to them was altered to that of fine only of Rs. 5,000 each or in default imprisonment for three months. Subject to this modification in the sentence, the appeal was dismissed. Following are the reasons in support of the short order referred herein before

The points for determination are

(1) whether the drug in question was manufactured in the factory of the accused firm Messrs Anfords (Pak) Ltd., of which the accused S.A. Rahman and Hasnat Ahmed Alvi are respectively Director and Control Incharge.

(2) whether the sad drug was sub-standard.

To prove their case, the prosecution have examined two Drug Inspec tors, namely Abdul Jabbar (Exh. 5) and Allah Bachayo (Exh. 9). They have also relied upon several documents. The Inspector Abdul Jabbar has stated on oath that on 1st January, 1979 he visited the factory premises of the accused and in presence of accused Hasnat Ahmed Alvi secured three boxes of the drug, namely water for injection, each containing 100 ampules with Batch No. 78162 manufactured by the accused Firm, Messrs Anfords (Pak) Ltd. According to him he gave one sample of the drug to accused Hasnat Ahmed Alvi and obtained receipt from him and forwarded another sample of the drug to the laboratory for analysis and report. He has introduced the receipt given by the accused Hasnat Ahmed Alvi (Exh. 7) and also the laboratory report (Exh. 8). He has also produced the memo he had prepared at the time of securing of the drug (Exh. 6).

Allah Bachayo, another Drug Inspector, who succeeded Abdul Jabbar on the latter's transfer, has stated in his evidence that he forwarded a copy of the laboratory report to the accused Firm and referred the case to the Quality Control Board. He has produced the show-cause notice issued by the said Board to the accused Firm (Exh. 12). He has also produced sanction (Exh. 13) for prosecution of the accused issued by the above board and the complaint lodged in the Court (Exh. 14).

The evidence of the Drug Inspector Abdul Jabbar that he secured the drug in question (water for injection) from the factory premises of the accused Firm has gone unchallenged. The securing of the drug by the said Inspector from the premises of the accused's factory has been admitted by the accused in their statement under section 342, Cr. P.C.

It was, however, contended by the learned counsel for the appellants that the prosecution have failed to prove that the drug secured by the Drug Inspector was sub-standard. In his opinion since the laboratory report produced in support of the prosecution case does not disclose the requisite protocols, it cannot be held as conclusive proof of the drug being sub-standard. In support of his argument the learned counsel has placed reliance on State v. Abdul Ghani (1977 P Cr. L J 822).

In reply to the above argument of the learned counsel for the appel lants, reference may be made to subsection (4) of section 22 of the Drugs Act, 1976. It reads as under:-

"Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within thirty days of the receipt of a copy of the report notified in writing to the Inspector or the Drug Court or, as the case may be, the Central Licensing Board or the Registra tion Board before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

It is clear from the above provision of law that unless the accused has challenged the report of the Government Analyst within thirty days of the receipt thereof, by notifying to any of the authorities specified in the above subsection, the report shall be treated as conclusive evidence of the contents thereof. According to the report the drug in question is declared as sub-standard. As stated by Allan Bachayo Inspector he had forwarded a copy of the laboratory report to the accused. There is, however, no indication on record that accused had notified to any of the prescribed authorities of their intention to challenge the report. In absence of such evidence, the report cannot but be held as conclusive proof of its contents which inter alia show, that the drug covered by the report was sub-standard. Accordingly, the argument that the report did not mention the full proto cols will be of no consequence. On receipt of the report if the accused found it defective inasmuch as that protocols were missing, nothing pre vented them from calling in question the authenticity of the report within statutory period of thirty days as provided in the above subsection. Since this has not been done, report cannot be questioned in the ground of absence of the protocols.

It appears after the case was referred to the Quality Control Board, show-cause notice was also served on the accused. But even in their reply to the said notice they did not raise any objection as to the validity of the report on the ground of absence of the protocols. On the contrary, they stated in their reply that their Quality Control Department had rejected the Batch at initial stage of optical checking and as such the entire Batch had been destroyed. Similarly, they also took the stand in their statements under section 342, Cr. P. C. that: "on test by us we found the drug to be Sub-standard and therefore, we destroyed it and intimated Quality Control, Health Division, Sind."

In view of above admission on the part of the accused that the drug in question was found by them to be sub-standard and hence it was des troyed, it does not lie in their mouth to question the correctness of the laboratory report to the effect that the drug was sub-standard. Accordingly, the single Bench authority of this Court referred to above which has been relied upon by the accused is of no avail to them.

The next objection raised on behalf of the accused is that the process of manufacturing was not complete when the drug was secured by Drug Inspector and as such the question of marketing the incomplete drug for sale did not arise. In support of this argument, it was pointed out by the learned counsel for the accused that the drug was secured from the injectable section and not from the section of finished goods. The learned counsel also referred to the form prepared by the Inspector at the time of securing the drug. He pointed out that it is not mentioned in the Form that in course of his visit to the factory premises, the Inspector also visited the section of finished goods. He also averred that the ampules secured by the Inspector did not bear Batch label.

No doubt the form prepared by the Inspector at the time of securing of the drug is silent about his having visited finished goods section in addition to other sections. But such omission by itself is not enough to conclusively prove that the whole process of manufacturing of the said drug had not been completed when it was secured by the Drug Inspector. The sworn testimony of the said, drug Inspector leaves no doubt that he had secured the drug in question from the finished goods section. He has denied the suggestion .hat he had shown in his notes that the drug was secured from the injectable section. On perusal of form he had prepared at the time of securing of the drug, it appears that there is no mention in the form that the drug was secured from the injectible section. The receipt given by the accused Hasnat Ahmed Alvi acknowledging the receipt of sample of the drug from the Drug Inspector also does not show that the said drug was either incomplete or that it was secured from the injectible section or that it did not bear a Batch label. While giving the receipt, the accused was free to mention all these things. There is no evidence to show that he was coerced or in any way compelled to pass the. said receipt. On the contrary, it is clear from the receipt that the sample of the drug given to the accused bore Batch No. and it appeared as if the drug was finished drug. As rightly pointed out by the Drug Court that excepting the accused's solitary word which is not on oath they have not led any evidence to rebut the Drug Inspector's evidence on oath on the point that the manufacture of drug was completed and it was ready for sale. Admittedly, accused S. A. Rehman was riot present when the drug was secured. So far other accused is concerned, he has not stated in his initial statement that the drug areas secured from the injectable, section and not from the finished goods section. As stated above he bas not even made such mention in the receipt that he had given to the Inspector on receiving the sample of the drug. For above reasons we hold that the prosecution have proved beyond any doubt that when the water for injection was secured by the Inspector its manufacture was complete.

Lastly, the learned counsel for the appellant submitted that the accused S. A. Rehman who was Director of the accused Firm at the relevant time was not liable. In support of his argument, he relied upon Superintendent of Police, Federal Investigation Agency, Lahore and an other v. Akhtar Hussain Bhutta (P L D 1976 S C 193). In this case it was held that Managing Director of the Company would be liable when it was shown that he had manufactured sub-standard drug for and on behalf of the Company.

The above authority does not seem to be applicable in the present case. In the instant case it is pertinent to refer to section 34 of the Act which read as under

"Where the person guilty of an offence under this Act is a Company Corporation, Firm or Institution, every director, partner and em ployee of the Company, Corporation, Firm or Institution shall, unless he proves that the offence was committed without his know ledge or consent be guilty of the offence."

It appears from the above section that by virtue of being a director of the accused firm, the accused S. A. Rehman is guilty of the offence unless it is proved by him that the offence was committed without his knowledge or consent. . Thus, unlike in the above-reported case, the burden is on C the accused to prove that he was not responsible for the offence, as the sub-standard drug was manufactured without his knowledge or consent. No such evidence has been produced by the accused. Therefore, like accused Hasnat Ahmed, he would be liable for the offence of having manufactured substandard drug, namely the water for injection.

In view of the above, we see no substance in the appeal which was accordingly dismissed. However, since the drug had not gone in the market and the accused on realizing that it was sub-standard had destroyed its entire stock, we thought it fit to alter the sentence as mentioned above.

S. G. D. Order accordingly.

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