Law: Criminal Procedure Code , 1898

Section: 498

Law: Drugs Act, 1976

Section: 17,18,19,23,27

Law: Drug Regulatory Authority Act, 2012

Section: 7,27(1)(2),29,I,III,IV,V

Law: Pakistan General Cosmetics Act, 2023

Section: 2j

Criminal Procedure Code (V of 1898)---
---- S. 498--- Drugs Act (XXXI of 1976), Ss. 23 & 27--- Drug Regulatory Authority of Pakistan Act (XXI of 2012), S. 27--- Unlicensed products, recovery of--- Prearrest bail, refusal of--- Complainant discovered five varieties of medicated cosmetics at a factory during raid, regarding which accused could not produce manufacturing license at the time of raid or any time afterwards--- Complainant seized the products vide Form 5 in presence of accused, who signed and thumb marked it--- Drug Testing Laboratory later confirmed that goods recovered were unregistered and contained allopathic drugs as active ingredients---On a tentative assessment of the available record, there was sufficient incriminating material against accused--- Apprehension of arrest of accused for an ulterior motive, such as humiliation and unjustified harassment, was a sine qua non for pre-arrest bail--Complainant was a Drug Inspector performing duties in the area where factory of accused was located--- Complainant had no reason to falsely implicate accused in the case--- Pre-arrest bail was refused, in circumstances.
Cox v. Hickman 1860 8 HL Cas 268; Ross v. Parkyns 1871 R. 155; Majooji Moosaj v. Tayebali and others AIR 1933 Sindh 210; Karnidan Sarda and another v. Sailaja Kanta Mitra and another AIR 1940 Pat. 683; Raghunath Sahu and another v. Trinath Das and others AIR 1985 Orissa 8; The Province of West Pakistan v. G.V. Rattanchand Pir Mahfooz (a firm) PLD 1958 (W.P.) Karachi 251 and Essa E.H. Jaffer v. Nishat Ltd. PLD 1962 (W.P.) Kar 603 ref.
Muhammad Safdar and others v. The State 1983 SCMR 645; Zia-ul-Hassan v. The State PLD 1984 SC 192; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel..
ORDER
TARIQ SALEEM SHEIKH, J.---Through this application, the Petitioner seeks pre-arrest bail in case FIR No.2590/2024 dated 02.07.2024 registered at Police Station Sabzazar, Lahore, for offences under sections 23 and 27 of the Drugs Act, 1976 (the "Drugs Act"), read with section 27 of the Drug Regulatory Authority of Pakistan Act, 2012 (the "DRAP Act").
2.    The prosecution's case is that M/s SSI Marketing Network ("SSI") is engaged in the manufacturing, retail, wholesale, distribution, and marketing of various cosmetics and skincare products through online stores and other traditional business modes. On 30.03.2024, at about 11:00 a.m., the Drug Inspector of Allama Iqbal Town, Lahore (the "Complainant"), inspected SSI's manufacturing facility in the presence of its CEO, Amir Mahmood (the Petitioner), and witnesses. During the inspection, the Complainant found five medicated cosmetics for which the Petitioner could not produce a valid manufacturing licence under the Drugs Act. These products were: Aneeza Gold Beauty Cream (20 grams), Brido Luxury Gold Beauty Cream, Bio2You Cream, Clobetasol propionate powder (Batch No. MLCL0020123), and Clobetasol propionate powder (Batch No. MLCL0060522). The Complainant seized the products, collected samples for testing and analysis, and prepared Form-4 and Form-5, obtaining the Petitioner's signature and thumb impression. Following the inspection, SSI's finished goods store was sealed for violations of the Drugs Act and the DRAP Act. The Drug Testing Laboratory (DTL) subsequently reported that the products were unregistered and contained allopathic drugs as active ingredients. FIR No.2590/2024, supra, was lodged after the approval of the District Quality Control Board.
3.    The Petitioner's counsel, Mr. Muhammad Zikariya Sheikh, Advocate, contends that Ijaz Ahmad is SSI's actual owner/proprietor. The Petitioner is merely an employee and has no concern with the manufacturing process. He performs his duties under Ijaz's direction. Mr. Sheikh relies on an instrument dated 28.04.2023 to support this contention.
4.    Mr. Sheikh further argues that the present case falls within the ambit of the Pakistan General Cosmetics Act 2023, and that the Drug Inspector lacks the authority to inspect business premises related to cosmetics or seize any products. He contends that the Petitioner has been falsely implicated in this case due to ulterior motives. The Petitioner has already joined the investigation and is not required by the police for further probe. Therefore, he may be admitted to pre-arrest bail.
5.    The Deputy District Public Prosecutor has vehemently opposed this application. She contends that the Petitioner is a partner in SSI and liable for all its acts and omissions. She asserts that the Petitioner and his co-accused manufactured the seized items without a valid licence, and the DTL report has confirmed that the items were unregistered. She further argues that the Drug Inspector has jurisdiction under section 18 of the Drugs Act to conduct the raid and inspect medicated cosmetics to ensure compliance with the Drugs Act and the DRAP Act. She has prayed for the dismissal of this bail application.
6.    We have heard the learned counsel and examined the record. We first consider whether the Complainant/Drug Inspector lawfully conducted the raid at the SSI's premises.
7.    The Drugs Act is a special law that regulates the import, export, manufacture, storage, distribution, and sale of drugs. Section 17 of the Act empowers the Federal or Provincial Government to appoint qualified individuals as Federal or Provincial Inspectors within designated local limits to enforce the Act. Section 18 outlines the powers conferred upon these Inspectors, while section 19 details the procedures they must follow when seizing any drug or article under section 18.
8.    Clause (a) of section 18(1) of the Drugs Act authorizes the Inspector, with the permission of the licensing authority, to inspect any premises where drugs are manufactured (including the plant), the manufacturing process, the means used for standardizing and testing the drugs, and all relevant records and registers. Clause (b) of section 18(1) empowers the Inspector to inspect any premises where drugs are sold, stocked, exhibited for sale, or distributed, along with the storage arrangements and all relevant records and registers. Clause (f) of section 18(1) allows the Inspector to seize any drug, materials used in its manufacture, and any other articles, such as registers, cash memos, invoices, and bills, which he has reason to believe may provide evidence of an offence punishable under the Drugs Act, or the rules made thereunder. Clause (h) of section 18(1) grants the Inspector the authority to lock and seal any factory, laboratory, shop, building, storehouse, or godown, or any part thereof, where any drug is being manufactured, stored, sold, or exhibited for sale in violation of the said Act or the rules.
9.    In 2012, Parliament enacted the DRAP Act (XXI of 2012) to establish the Drug Regulatory Authority of Pakistan ("DRAP") "to provide for effective coordination and enforcement of the Drugs Act and to bring harmony in interprovincial trade and commerce of therapeutic goods, and to regulate, manufacture, import, export, storage, distribution, and sale of therapeutic goods." Section 7 of the Act describes the DRAP's powers and functions. Section 27(1) states that the offences shall be such as specified in Schedule-III, and section 27(2) provides that the prohibitions specified in Schedule-II shall be punishable in accordance with Schedule-III.
10.    Schedule-V of the DRAP Act outlines the powers of Inspectors. Clause (6) of Schedule-V stipulates that the Provincial Inspector, upon finding any contravention of the DRAP Act or the Drugs Act, shall, unless otherwise directed by the Board, always refer the case to the Provincial Quality Control Board and seek orders regarding the action to be taken in response to such infringements. Section 29 states that the Inspector shall take cognizance of offences in the manner specified in Schedule-IV.

11.    The Drugs Act defines the term "drug" in section 3(g) and the DRAP Act in section 2(xii) read with Schedule-I. The DRAP Act separately defines "medicated cosmetics" in Schedule-I. According to it, they include "cosmetics containing drugs and are defined as articles containing active drug ingredients intended to be rubbed, poured, sprinkled, or sprayed on, or introduced into, or otherwise applied to the human body or part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and articles intended for use as a component of any such articles; except that such term shall not include soap."

12.    Parliament has also enacted the Pakistan General Cosmetics Act, 2023 (XLIII of 2023), to regulate the quality, standard, labeling, packing, manufacturing, storage, distribution, and sale of general cosmetics. Section 2(j) of the Act defines "general cosmetic" to mean "any substance intended to be used to clean, improve or change of complexion of skin, hair, nails or teeth and include the beauty preparations for make-up, perfume, skin cream, skin lotion nail polish, nail paint, soap, shampoo, shaving cream, gel, sun care and deodorant also include any article intended for use as a component of general cosmetics or any other item declared by the [Pakistan General Cosmetics Regulatory] Authority for the purposes of this Act."
13.    Thus, the legal framework distinguishes between "medicated cosmetics" and "general cosmetics." The DRAP Act governs the former, while the latter falls under the Act of 2023. There is no overlap between these two categories.