IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.1508 of 2017

Criminal Bail Application No.1509 of 2017

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gadi

Appellants: Muhamamd Raza son of Muhammad Naqi through Mr. Khaleeq Ahmed, Advocate

Respondent: The STATE through Mr. Mr. Ashfaq Rafiq Janjua, Assistant Attorney General a/w IOs Inspector Abdul Jabbar and SI Rahat Khan of FIA, Corporate Crime Circle, Karachi

Date of Hearing: 20.11.2017

Date of Announcement: 21.11.2017

O R D E R

NAIMATULLAH PHULPOTO, J.-- By this single order we will decide the aforesaid bail applications filed by applicants/accused Muhammad Raza and Muhammad Haris in F.I.Rs. Nos.08 and 9 of 2017, registered at P.S. FIA Corporate Crime Circle, Karachi under sections 23, 27 read with section 30 and 34 of the Drugs Act, 1976.

2. Brief facts of the prosecution case as disclosed in F.I.Rs. No.8 and 9 of 2017 are that on receipt of credible information, pertaining to the flow of manufacturing, repacking, altering and ornamenting of drugs and illegal sale of pharmaceuticals’ acting raw material of drugs, unauthorizedly in the city. With the approval of the competent authority it is alleged that raid was conducted by the FIA team along with Provincial Drug Inspector. Team reached at godown No.G-2/B, warehouse of Medicine Market, near Katchi Gali, Denso Hall, Karachi where it is alleged that applicant/accused Muhammad Raza was busy in repacking, altering and ornamenting of drugs and sale of pharmaceutical raw material of drugs with the connivance of such pharmaceutical companies without any lawful authority. Raw material of drugs was recovered, such seizure memo dated 13.05.2017 was prepared by Provincial Drug Inspector. It is alleged that accused claimed to be the owner of the raw material. Thereafter, aforesaid F.I.Rs was registered against him. After usual investigation, challan was submitted against the applicant/accused in the above referred sections. Facts of bail application of co-accused are more or less same as reflected in order of trial court.

3. Bail applications were moved by the applicants/accused before learned Drug Court Sindh at Karachi, the same were rejected vide order dated 25.08.2017.

4. Mr. Khaleeq Ahmed, learned advocate for applicant/accused mainly contended that complainant lodged F.I.R. against the accused in violation of section 19(b) of the Drugs Act, 1976. He has further argued that nothing was recovered from the possession applicant/accused; raw-material allegedly recovered from the possession of the applicant/accused was not punishable under Section 23 of the Drugs Act. Lastly he has submitted that alleged offence does not fall within the prohibitory clause of section 497(2) of the Cr.PC.

5. Mr. Ashfaq Rafiq Janjua, Assistant Attorney General argued that raw material is used for manufacturing the drugs and it was punishable under section 23 of the Drugs Act. He has further argued that applicant/accused had made confession regarding the recovery of the raw material from his possession. He opposed the bail application.

6. We have carefully heard the learned counsel for the parties and perused the relevant record. Allegation against applicant/accused was that raw material was recovered from his godown on 13.05.2017. Learned counsel applicant/accused has drawn the attention of the Court to section 23 of the Drugs Act, which is reproduced as under:-

23. Import, manufacture and sale of drug: (1) No person shall himself or by any other person on his behalf—

(a) export, import or manufacture for sale or sell:-

(i) any spurious drug;

(ii) any imitation product;

(iii) any misbranded drug;

(iv) any adulterated drug;

(v) any substandard drug;

(vi) any drug after its expiry date;

(vii) any drug which is not registered or is not in accordance with the conditions of registration;

(viii) any drug which, by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be prescribed;

(ix) any drug if it is dangerous to health when used in the dosage or with the frequency, or, for the duration specified, recommended or suggested in the labelling thereof; or

(x) any drug in contravention of any of the provisions of this Act or any rule;

(b) manufacture for sale any drug except under, and in accordance with the conditions of, a licence issued under this Act;

(d) import or export any drug the import or export of which is prohibited by or under this Act;

(e) import or export any drug for the import or export of which a licence is required, except under, and in accordance with the conditions of, such licence;

(f) supply an incorrect, in complete or misleading information, when required to furnish any information under this Act or the rules;

(g) peddle, hawk or offer for sale any drug in a park or public street or on a highway, footpath or public transport or conveyance;

(h) import, manufacture for sale, or sell any substance, or mixture of substances, which is not a drug but is presented in a form or a manner which is intended or likely to cause the public to believe it to be a drug;

(i) sell any drug without having a warranty in the prescribed form bearing the name and batch number of the drug issued,--

(i) in the case of a drug manufactured in Pakistan, by the manufacturer holding a valid licence to manufacture drugs and permission to manufacture that drug or by his authorized agent;

(ii) in the case of an imported drug, by the manufacturer or importer of that drug or, if the drug is imported through an indentor by such indentor;

(j) apply an incorrect batch number to a drug and

(2) Nothing in sub-section (1) shall apply to the manufacture or subject to prescribed conditions, of small quantities or any drug for the purpose of clinical trial examination, test, analysis or personal use.

7. There is no mention of raw material in Section 23 of the Drugs Act, 1976. Admittedly, un-registered drugs were not recovered from the possession/godown of the accused; investigation is complete; accused is in judicial custody, yet it is to be determined whether the offence falls under Section 23 of the Drugs Act, 1976 or not? Drugs Act, 1976 is a special law and it has to be given effect to as such. It is not disputed that legal requirements and formalities mentioned in the Drugs Act, 1976 have not been complied with in this case before registration of the impugned F.I.R.

8. We are also of the view that liberty of an individual is paramount as recognized by the Constitution and in particular Article 9 of the Constitution, which is fundamental right. In criminal cases, there is golden principle that accused shall be presumed to be innocent till his guilt is proved, as such, his liberty should not be lightly curtailed because if the accused is acquitted at the end of the trial, he cannot get back the time, which he has lost in jail nor be compensated for it. This was emphasized in the recent judgment in the case ZAIGHAM ASHRAF versus The STATE (2016 SCMR 18). Relevant portion is reproduced as under:-

“9. To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment. The Courts are equally required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the Prosecution or in favour of the defence before making a decision.

9. For the above stated reasons bail cannot be refused as punishment to accused. Case of the applicant/accused requires further inquiry as contemplated under section 497(2), Cr.PC. Concession of bail is granted to applicants/accused Muhammad Raza and Muhammad Haris, both sons of Muhammad Naqi, subject to their furnishing solvent surety in the sum of Rs.500,000/- (Five Hundred Thousand) each, and P.R bond in the like amount to the satisfaction of trial Court.

10. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the applicant/accused.

J U D G E

Gulsher/PA