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Criminal Acquittal Appeal No.169 of 1985, decided on 14th May, 1987.

---S.3 (g) (v)--"Drug"--Definition--Any substance mentioned as monograph or preparation in British or Pakistani Pharmacopaeia or National Formulary is included in definition of "drug"--Methyl Salicylate finds mention in National Formulary and British Pharmacopoeia--Certain preparations used in manufacture of Ayurvedic or Unani medicines are no doubt excluded but all such preparations are not excluded and such a question is purely of fact to be established by evidence- Not only manufacture and sale of drugs without 'licence and registration is punishable offence but even their counterfeiting is an offence--Where prima facie case was made out by prosecution, trial Court, held, was not justified in throwing out case without recording evidence.

---S.249-A--Discretion of Trial Court under S.249-A, Cr.P.C. to acquit accused--Prima facie case made out against accused and no evidence as yet recorded--Acquittal under S.249-A, Cr.P.C., held, was not warranted by law--Acquittal set aside and case remanded or disposal after recording of evidence.

Syed Murtaza Hussain for the State.

Latifur Rehman Sarwari for Respondents.

Date of hearing: 11th May, 1987.

This acquittal appeal under section.417, Cr.P.C. is directed against the order passed by the learned Drug Court of Sind and Baluchistan, Karachi, dated 30-5-1985, holding the charge against the respondents to be groundless and acquitting the respondents' under section 249-A, Cr.P.C.

The facts of the case, briefly stated, are that on 22-9-1985 Drug Inspector Altaf Hussain Hakro visited the shop of M/s Yousuf and Brothers situated at Shahi Bazar, Hyderabad and seized samples of drug known as Sum Gul Menthojelly, manufactured by the respondents without any licence or registration. The first respondent is the proprietor of the second respondent. The samples of the drug were sent for chemical analysis which revealed that the same contained menthol, camphor, euclaptus oil and methyl salicylate. The drug was also found to be counterfeit as its label on the bottle resembled another registered drug from China. A show-cause notice was then sent to the respondents, who confirmed that the drug was being manufactured by them. After receiving permission from the Sind Provincial Quality Control Board, Karachi, a complaint was filed before the learned Drug Court showing commission of various offences by the respondents under sections 23 and 27 of the Drugs Act, 1976.

After a charge was framed against the respondent by the learned Drug Court on 22-3-1984, an application purporting to be under section 249-A, Cr.P.C. was filed by the respondents which was allowed by the impugned order, dated 18-11-1985 resulting in acquittal of the respondents.

The learned Drug Court found that methyl salicylate which admittedly was one of the ingredients of the preparation Sun Gul Menthjelly and around which the controversy in this case has mainly revolved, was not only covered under Tibbi Pharmacopoeia, but the same was "Zaidulshitta" which is commonly anal generally used in Unani system of medicine and that the same was also fully covered by notification of the Ministry of Health and Population Planning, Government of Pakistan, published in the Gazette of Pakistan (Extra ordinary), dated 26-11-1977 under S.R.O. No.1123(1)/77 which read as under:-

"The Federal Government being in opinion that the public interest so required, is pleased to exempt such drugs and on such conditions as are specified with schedule below from all the provisions of the said Act."

"Medicinal plants or any part thereof including their fruits, seeds, exudates, gums and resins, but excluding any of the pure active, constituent irolated from such material which itself is a drug."

The learned Drug Court consequently concluded that the medicine was a Unani preparation which did not attract the, provisions of the Drugs Act, 1976 towards itself and the complaint before it was misconceived.

We have heard Mr.Syed Murtaza Hussain learned counsel for the State and Mr.Latif Sarwari, learned counsel for the respondents.

Mr.Syed Murtaza Hussain has vigorously argued that methyl salicylate which admittedly was found to be one of the ingredients of the preparation Sun Gul Menthojelly is listed both in the National Formulary and the British Pharmacopoeia as one of the monographs and consequently, the same is covered by the definition of "drug" in section 3(g) of the Drugs Act, 1976. Therefore, according to the learned counsel there was a prima facie case against the respondents and their acquittal under section 249-A, Cr.P.C. was not warranted under the law. Mr.Latif Sarwari, on the other hand, has fully supported the impugned order.

Turning to the contention of Mr.Syed Murtaza Hussain, the definition of 'drug' appearing in section 3(g) of the Drugs Act, 1976 reads as under:----

"(g) 'drug' includes---

(i) any substance or mixture of substances that is manufactured, sold, stored, offered for sale or represented for internal use in the treatment, mitigation, prevention or diagnosis of disease, an abnormal physical state, or the symptoms thereof in human beings or animals, or the restoration, correction, or modification of organic functions in human beings or animals, not being a substance exclusively used or prepared for use in accordance with the ayurvedic, unani, homoeopathic or biochemic system of treatment except those substances and in accordance with such conditions as may be prescribed;

(ii) abortive and contraceptive substances, agents and devices, surgical ligatures, sutures, bandages, absorbent cotton, disinfectants, bacteriophages, adhesive plasters, gelatine capsules and antisepctic solutions;

(iii) such substances intended to be used for the destruction or repulsion of such vermin, insects, rodents and other organisms as cause, carry or transmit disease in human beings or animals or for dis-infection in residential areas or in premises in which food is manufactured, prepared or kept or stored;

(iv) such pesticides as may cause health hazard to the public;

(v) any substance mentioned as monograph or as a preparation in the Pakistan Pharmacopoeia or the Pakistan National Formulary of the International Pharmacopoeia or the British Pharmacopoeia or the British. Pharmaceutical Codex or the United States Pharmacopoeia or the National Formulary of the United States, whether alone or in combination with any substance exclusively used in the unani, ayurvedic, homoeopathic or biochemic system of treatment, and intended to be used for any of the purposes mentioned in sub-clauses (i) and (ii); and (v) any other substance which the Federal Government may, by notification in the official Gazette, declare to be a 'drug' for the purposes of this Act;"

Reference to paragraph (v) of the above definition leaves no doubt that any substance which has been mentioned as monograph or preparation in the British or Pakistan Pharmacopoeia or National Formulary etc. is included in the above definition and admittedly methyl salicylate finds mention both in the National Formulary and the British Pharmacopoeia. The learned Drug Court has however, held that methyl salicylate is covered under Tibbi Pharmacopoeia and the same is commonly and generally used in the unani system of medicine, but these findings of the learned Drug Court do not appear to be supported by any material on record of the case. Similarly, its findings that the ingredients of medicine Sun Gul Menthojelly are exempted under Notification No.SRO. No.1123(1)177 from the provisions of Drugs Act-, 1976 are also not supported by any evidence as nothing can be spelled out from such notification to support the findings arrived at by the learned Drug Court. No doubt, according to the definition of "drug" in the Drugs Act, certain preparations used in the manufacture of ayurvedic or unani-medicines, etc. are excluded therefrom, but since admittedly all such preparations are not excluded, the question is purely of fact which can only be established by evidence. On the other hand, since the drug methyl salicylate has been included both in the National Formulary as well as in the British Pharmacopoeia the same prima facie falls within the definition of "drug" A given in the Drugs Act. Furthermore, we find that no finding has been given by the learned Drug Court in regard to the alleged counterfeiting of the drug Sun Gul Methojelly by the respondents. It may be pointed out that not only manufacture and sale of drugs without a licence and registration is punishable as offence under the Drugs Act, but even their counterfeiting has been made an offence. In any case, there is, certainly a prima facie case made out by the prosecution against the respondents. Under the circumstances, throwing out of the complaint and acquitting the respondents without recording evidence in the case tantamount to stifling the prosecution. Although section 249-A , Cr.P.C. vests the trial Court with discretion to acquit the accused at any stage of the proceedings if in its opinion no case can be made out from the accusations or there is no probability of the accused being convicted of any offence, but where the allegations in the comp1sint on the face of them disclose a prima facie cases, no discretion would vest in the trial Court to acquit the accused. In the present case, since no evidence was recorded, there was nothing on the record besides the complaint and other supporting material filed therewith to establish the guilt or innocence of the respondents. Since it was not possible to reach any definite conclusion a in this respect without recording of evidence in the case, the acquittal of respondents under section 249-A, Cr.P.C. was not warranted under the law. We are, consequently, convinced that in the present case, the learned Drug Court has acted with undue haste in acquitting the accused.

For the aforesaid reasons, this appeal was allowed by a short order dat9d 11-5-1987 and the case was ordered to be remanded to the learned Drug Court for fresh disposal after recording of evidence in the case. We would further direct that the learned Drug Court shall dispose of the case within six months after receiving the record of the case.

K.B.A./S-91/K Case remanded.

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