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Criminal Revision No. 196 of 1963, decided on 10th October 1963.
S. 4 (2) read with S. 23‑Sustaining conviction for offence‑Whether pro secution bound to prove that food seized was intended for sale. (Obiter).
S. 20‑Dividing of food seized into 3 parts and marking each part‑Manda tory and not directory‑Non‑compliance with direction‑Vitiates conviction.
Abdul Karim Jan for Petitioner.
Sher Bahadur Khan, A. A. G. for the State.
Date of hearing: 10th October 1963.
Alif Gul, son of Rahim Gul, aged about 14 years, resident of Prang, was convicted under section 4 (2) read with section 23 of the West Pakistan Pure Food Ordinance, 1960, and sentenced to two months' R. I., and a fine of Rs. 200, or in default to suffer further two months' R. I., on the allegation that on 9th February 1963, Nazir Ahmad Nasim, Food Inspector (P. W. 1) purchased a sample of buffalo milk from him, which was found by the Public Analyst to be deficient in fat contents.
2. On appeal Mr. Shafi‑ur‑Rehman, Sessions Judge, while maintaining the conviction, set aside the sentence of imprisonment and substituted it for a fine of Rs. 4U0 and the usual analysis fee of Rs. 30. The petitioner has come up on revision.
3. Mr. Abdul Karim Jan, the learned counsel for the peti tioner, made two‑fold submission (1) that mere possession or mere keeping of milk which was deficient in fat contents was not an offence and that before any conviction could be recorded under the West Pakistan Pure Food Ordinance, 1960, (hereinafter to be referred as the Ordinance) it was incumbent on the prosecution to show that the milk was intended for sale, and (2) that the con viction of the petitioner was vitiated for non‑compliance of the statutory requirements of section 20 of the Ordinance under which the Inspector after purchasing or procuring or seizing any food with the intention of submitting the same for analysis, "shall, forthwith, divide the food in three parts to be then and there sepa rated and each part shall be marked, . . . ". It was argued that in the instant case the Inspector had neither "marked" nor labelled the sample sent to the Chemical Examiner and, in the circumstances of the case, it could not be satisfactorily "proved" that the sample which was tested by the Chemical Examiner and found to be deficient in fat contents was the sample seized from the petitioner.
4. I propose to deal first with the second objection pertain ing to non‑observance of the provisions of section 20 of the Ordinance under which the samples were required to be "marked". A reading of section 20 makes it manifest that a statutory duty is cast on the Inspector to divide the food seized in three parts there and then separated and each part "marked". The object underlying the separation of the samples in three separate parts and of marking the same is to ensure to eliminate chances of con fusion at the time of analysis by the analyst, who may have to analyse several different samples on a particular day, that he had analysed a particular sample with a particular mark or label. The importance of this requirement is emphasized in the printed Declaration Form Exh. P. B. which contains several items and at serial No. 9 there are the words "label or mark", but that column has been left blank by the Inspector. In other words, the Inspector omitted to put any label or any particular mark of identification on the sample sent to the analyst taken from the petitioner.
5. The learned A. A. G., tried to argue that non‑compliance with the provisions of section 20 in regard to the marking of the sample or the omission to fill up column No. 9 pertaining to "label or mark" was an irregularity which did not vitiate the trial unless it was shown that any prejudice had been occasioned to the petitioner.
6. After giving the arguments addressed at the Bar my earnest consideration, I have formed the opinion that the direction contained in section 20 in regard to marking of the samples is not an idle formality or merely directory but is mandatory, for the short and sensible reason that in the absence of any "mark" or "label" the judicial conscience of the Court would be left unsatisfied in the absence of sufficient certainty to regard it as "proved" that any particular specimen taken from a particular individual sent to the analyst and found by him to be deficient in some respect was in fact the very specimen alleged to have been taken or seized from that individual. The importance of the strict observance in regard to the marking of the sample is emphasized in the printed memorandum which, as already stated, contains at serial No. 9 a column pertaining to "label or mark".
7. It follows from the above discussion that the conviction of the petitioner cannot be sustained for non‑observance of the mandatory provisions of section 20 of the Ordinance. Since the revision petition succeeds in the second objection, I do not feel called upon to decide the larger question that it was a condition B precedent for conviction under section 23 of the Ordinance that the prosecution must prove that the milk was intended for "sale".
8. The revision petition is accepted, the conviction and sentence are set aside, and the petitioner is acquitted. The fine, if paid, should be refunded to him.
K. B. A. Petition accepted.
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