Provincial board enjoys discretion under drugs act

The Supreme Court has ruled that the provincial quality control board “enjoys” independent discretion under Section 22 of the Drugs Act of 1976.

A three-judge bench of the apex court led by Justice Manzoor Ahmad Malik interpreted sub-sections (4) and (5) of Section 22 of the Drugs Act of 1976.

The apex court order states that the board has the powers to allow or disallow the request of an accused or a complainant for re-testing after considering the grounds against the reports of provincial inspectors and the government analysts and by passing a speaking order in this regard in narcotics cases.

The question is whether the provincial quality control board, etc., enjoys “discretion” under Section 22(5) of the act to either allow or reject the request of an accused or a complainant for re-testing of a drug.

The occasion of re-testing arises only when the drug in question has already been tested and the report of the government analysts has been challenged within ten days before the board, etc., by the person from whom the sample has been taken or the warrantor of the drug.

Justice Syed Mansoor Ali Shah, while authoring a four-page order, noted that there is no timeframe under the law for filing such a request but according to the scheme of the law such a request is to be made prior to the decision of the complaint filed by the accused against the report under Section 22(4).

"On the whole, we are of the view that the board, etc., enjoys independent discretion to allow or disallow the request of the accused or the complainant for re-testing after considering the grounds against the report and by passing a speaking order in this regard," says the order.

The court also said that once the report is received by the person, from whom the sample was taken (referred to as an accused in sub-section), he can within ten days file, in writing, before the Inspector, or the Board, etc. where his case is pending, his intention to adduce evidence in contravention of the report.

"This intention of adducing evidence in contravention of the report actually is in the nature of a complaint against the report, specifying the grounds of contravention of the report, on the basis of which, the person proposes to adduce evidence later on.

“Unless, sub-section is invoked, the complaint against the report takes its lawful course and the matter is finally concluded by the board, etc., which has received such a complaint. However, before the matter regarding the report is concluded under Sub-section 4, Sub-section 5 of Section 22 provides yet another avenue to the accused, as well as, the complainant.”

The court noted that once the complaint is filed against the report by the accused within ten days as required by Section 22(4), the board or any other authority, before whom such a complaint against the report is pending, can on its own motion or in its discretion on the request of the accused or the complainant may allow re-testing of the drug from the Federal Drug Laboratory, etc.

Other than the suo motu power enjoyed by the board, etc., to send the drug for re-testing, the board, etc., also enjoys the discretion to allow or disallow the request for re-testing by the accused or the complainant.

“The request will be examined on the basis of the grounds already raised by the accused against the report filed within ten days under Section 22(4) of the act. The said request does not stand alone and must be preceded with a complaint under section 22(4) of the Act, says the order.”