Find a Lawyer

Criminal Revision No. 135 of 1966, decided on 10th June 1966.

S. 23 (1) (b) and Criminal Procedure Code (V of 1898), Ss. 255 & 342 ‑ Plea of guilty ‑ Mere admission, during examination under S. 342, Cr. P. C., by accused of an act alleged to be offence‑Cannot amount to admission of guilt if act complained of does not properly constitute an offence under law- Conviction under S. 23 (1) (b), West Pakistan Pure Food Ordinance, 1960 of person on his admission of having sold food stuff' below standard without clear proof as to what was standard demanded in respect of that food‑stuff‑Not justified.

, S. 23(1)(6) read with West Pakistan Pure Food Rules, 1965, r. 46‑Samples supplied to Public Analyst should not be less than specified quantity‑Analysis made on deficient quantity bf sample‑Held, legally defective and vitiates opinion of Analyst- Certificate based on such analysis cannot conclusively prove guilt of accused.

S. Immaduddin for Petitioner.

Ghazanfar Ali Shah for the State.

Date of hearing: 10th June 1966.

This is a revision petition by Muhammad Shah, a shop keeper of Mardan, against his conviction under section 23 (1) (b) of the West Pakistan Pure Food Ordinance (VII of 1960), as amended by the West Pakistan Pure Food (Amendment) Act, 1965 (hereinafter to be referred as the Ordinance). As it was his second conviction under the Ordinance he was sentenced under section 23 (1) (b) of the Ordinance to six months' rigorous imprisonment and a fine of Rs. 200.00 or in default of payment of fine to three months' further rigorous imprisonment by the Additional District Magistrate, Mardan (Mr. Haji Muhammad Attal Khan) by his order dated the 24th of March 1966. He was further directed under section 30 of the Ordinance to pay a sum of Rs. 30.00 for the expenses incurred in connection with the fees paid to the Public Analyst in respect of the chemical analysis of the black tea recovered from his possession and which was the subject‑matter of the charge against him. He preferred an appeal to the Additional Sessions Judge, Mardan (Mirza Abdullah Jan), who upheld his conviction and sentence other than that of fine of Rs. 200.00 which was remitted.

2. The complaint against the petitioner was lodged by Dilbar Shah (P. W. 1),‑Food Inspector, District Council, Mardan, under section 6/23 (1) (b) of the Ordinance on the allegations that he (the petitioner) had, on the 22nd of November 1965, at the Shergarh Cattle Fair, sold 3 Chhatanks of black tea to him while he was on patrol, on payment of Rs. 1,50. The total quantity of tea purchased was 3 Chhatanks which he divided into three parts, as required by rule 44 of the West Pakistan Pure Food Rules, 1965 (hereinafter to be referred as the Rules), one of which in a sealed bottle was sent to the Public Analyst for his analysis. The certificate Exh. P. B. of the Public Analyst states that the sample contained ash to the extent of 5.0 % as well as ash soluble in boiling distilled water to the extent of 50.0%, and the sample tea was, therefore, below standard. Dilbar Shah has appeared as the only witness in the case and has deposed to the factum of purchase by him from the petitioner of 3 Chhatanks of black tea which he divided into three parts, one of which, was sent to the Public Analyst, as mentioned above. The total quantity in possession of the petitioner at the time was about 15 Seers and 8 Chhatanks which he had kept for sale at the Fair. After the evidence of Dilbar Shah .was recorded, the statement of the petitioner was taken under section 342 of the Code‑of Criminal Procedure and the questions put to him with his answers .were as follows:

"Q.‑Did you on the 22nd of November 1965, at Shergarh Cattle Fair sell 3 Chhatanks below standard black tea leaves to Dilbar Shah, Food Inspector, District Council, Mardan

A.‑Yes.

Q.‑Do you want to say anything more and were you previously convicted

A.‑No. I was previously fined Rs. 200.00 from the Court of E. A. C. II, Mardan, in a similar case in addition to one month's rigorous imprisonment.

The learned Magistrate has considered this statement as a confession by the petitioner of his guilt, and the learned appellate Court has treated it as a voluntary "plea of guilty" which renders his conviction immune from challenge in appeal except as to the extent and legality of sentence under section 412 of the Code of Criminal Procedure.

The first question that arises for consideration is whether the statement of the petitioner as reproduced above really amounts to a plea of guilty, as required by law. His statement in response to the questions put to him will have to be related to the circumstances appearing in the evidence led against him which he was required to explain under section 342 of the Code of Criminal Procedure. The plea of guilty, to be spelt out of the statement of an accused person has to be considered on the basis of the circumstances proved against him and not as to what was merely alleged against him. It is not enough for purposes of conviction of an accused person on the strength of his statement, that he should plead guilty to a penal section of the law which may be considered to cover his alleged offence, or for that matter to say generally that he is guilty without a conscious realisation of the actual facts of the prosecution case proved against him which must be put to him and his answers solicited. Unless the "plea of guilt" entered by the accused is in respect of the proved circumstances against him, constituting an offence under the law, it would not amount of an admission of guilt .on his part, to preclude him from challenging his conviction and sentence made on the basis of that plea. In the present case, the accused did admit that he had sold tea in question to Dilbar Shah which was below standard, but in the circumstances of the case I do not consider that it really amounted to an admission of his guilt. I have not been able to discover that to sell a food stuff which is below standard is punishable as an offence by itself, without clear proof as to what was the standard demanded in respect of that food stuff from which the subject‑matter of the offence had fallen short. It is necessary to refer here to the relevant portions of sections 5 and 6 of the Ordinance which cover the point:

"5. No person shall, directly or indirectly, himself or by any other person ----

(a) prepare, manufacture, keep pr store for sole, or sell or offer to sell, any food which is unsound, unwholesome, injurious to health or unfit for human consumption;

(6) No person shall, directly or indirectly, himself or by any other person, prepare, manufacture keep or store for sale, or sell or offer to sell any food‑

(a) which is adulterated;

(b) which is misbranded;

(c) which is not of the nature, substance or quality demanded, or which it purports or is represented to be; . . ."

Section 5 is obviously not applicable to the present case as the admission of the petitioner that the tea was below standard does not necessarily mean that it was unsound, unwholesome, injurious to health or unfit for human consumption ; nor would it mean for purposes of section 6 that it was adulterated nor that it was not of the nature, substance or the quality demanded or is other than what it purports or was represented to be, without showing as to what was the substance or quality demanded in this behalf or that it was represented to be other than what it was. The prosecution has not taken the trouble of proving these matters in this case and, therefore, the mere statement of the petitioner that the tea in question sold by him was below the standard does not, in view, carry the prosecution anywhere.

4. Even if I were to accept the certificate of the Public Analyst on its face value to hold that the tea leaves sold by the petitioner were not of the nature, substance or the quality as required, being below standard and that it was adulterated stuff, containing a fair percentage of ash, it, is not possible to get over a basic defect in the analysis made by the Public Analyst in this case, as it has been done in contravention of a rule which, to my mind, vitiates the analysis and the resulting opinion of the Analyst. In rule 46 of the Rules it is laid down that the quantity of the samples supplied for analysis to a Public Analyst shall not be less than a specified quantity and in the case of tea, the specified quantity is stated to be 4 ounces. In the present case, it is admitted that only one Chhatank of tea was sent to the Public Analyst. Out of the total of 3 Chhatanks purchased from the petitioner, which was divided into three parts, one was given to the petitioner to be kept by him, one retained by the Food Inspector and the third sent to the Public Analyst, all in sealed bottles, as required by the Rules. The Chhatank sent to the Public Analyst, amounting to 2 ounces, is actually one‑half of the specified quantity that should have been sent to him. As a deficient sample, short of half the specified quantity, was sent to the Public Analyst in violation of the statutory rules, his analysis of that sample is not in accordance with law and the resulting opinion obviously suffers from a defect. His certificate, which is the main‑stay of the prosecution, therefore, cannot be accepted as conclusive of the petitioner's guilt.

5. Reverting to the plea of guilty of the petitioner, in reference to the circumstances disclosed in the prosecution evidence against him, it is to be considered that he had admitted the tea in question to be below standard as found by the Public Analyst. If that analysis itself is defective, the admission of the tea being below standard on that analysis would not amount to an admission of being guilty in respect of a proved offence. In this view of the matter, I am constrained to set aside his conviction, including the levy of fine of Rs. 30.00 on him as fee of the Public Analyst. The petitioner is acquitted and shall be set at liberty forthwith.

K. B. A. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.