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Criminal Revision No. 544 of 1968, decided on 28th June 1968.

S. 144‑Prohibitory order under S. 144‑May be addressed to individual concerned or, if necessary, may appropriately be brought to notice of general public through suitable proclamation‑"Particular place" may be a well‑defined part of District or may, if circumstances so require, be whole of District.

Kusum Kumani Debi v. Hem Nalini Debi A I R 1933 Cal. 724 and Abdul Karim Shorish v. Emperor A I R 1937 Lah, 80 ref.

S. 144‑District Magistrate competent to, take preventive and not punitive action.

Ch. Khalid Mahmood for Petitioner.

S. M. Bashir, A. A.‑G. for the State.

Muhammad Ismail, resident of Kot Khadam Ali Shah, District Sahiwal, filed the present revision petition under section 439, Cr. P. C. questioning the validity of the order passed by the District Magistrate, Sahiwal, on 8‑6‑1968, in pursuance of section 144, Criminal Procedure Code, 1898.

2. The facts leading to this revision petition may be briefly stated as follows:‑

On 8‑6‑1968 the District Magistrate, Sahiwal, in exercise of the powers conferred on him by, section 144, Cr. P. C. made the following order :‑--

(i) No factory owner shall stop or reduce the normal production of ice in his factory.

(ii) The manufacturers shall sell ice in pure crystal form.

(iii) The ice shall be sold to bona fide dealers at the Rate, of Rs. 12 per block.

(iv) The ice dealers shall sell ice in retail to the consumers at the rate of not more than 12 paisas.

(v) No person shall import ice from outside in the district for sale.

(vi) For the purposes of manufacture of ice, pure, clear and free from harmful germs water shall be used.

(vii) No manufacturer of ice shall export ice outside the District without written permission of the District Magistrate. This order took effect from 8‑6‑1968 and shall remain to force till 7‑8‑1968.

3. The petitioner is resident of Sahiwal but is proprietor of Firdaus Ice Factory, Kamalia, District Lyallpur. As there was no market for ice in Kamalia, he would sell ice in District Sahiwal at the rate of Rs. 8.' O per block.

4. The petitioner felt aggrieved by the aforesaid order passed by the District Magistrate, Sahiwal, and on 12‑6‑1968, filed the present revision petition. He questioned the validity of the impugned order on the following grounds :‑

(a) The impugned order is beyond the scope of section 144, Cr. P. C.

(b) The Provincial Government could regulate free movement and trade in ice and the District Magistrate, in making the aforesaid order, usurped the functions of the Provincial Government.

(c) The aforesaid order, addressed to the public in general, contravened the provisions of subsection (3) of section 144, Cr. P. C. inasmuch as the order affecting public in general could be made only "for prohibiting it from frequenting or visiting a particular place".

(d) Section 144, Cr. P. C., contemplates a prohibitory order as distinguished from mandatory order consequently the impugned order directing the dealars to sell ice at the rate of Rs. 12.00 per block and to certain dealers only, was invalid.

(e) The said order was made mala fide for the purpose of benefiting the manufacturers of ice in Sahiwal.

(f) The said order was injurious to the interests of public at large.

(g) There was no complaint from any person regarding the quality or fitness of the ice sold by the petitioner in Sahiwal town, nor was the petitioner's ice declared unfit for human consumption by any laboratory tests.

5. The District Magistrate, Sahiwal, in reply, urged that the order had been made in the interest of public health, public peace and tranquillity inasmuch as, use of contaminated water in the manufacture of ice was likely to spread cholera and Gastro Entritis. The Health Officer, Sahiwal asserted that the import of ice from other District should not be allowed as sanitation staff of Sahiwal District could not check the sanitation of other districts and could not check the water used by them. It was apprehended that untested water, if contaminated, was likely to spread cholera, etc.

6. It is true that the Provincial Government could regulate supply, distribution, consumption, etc. of ice in pursuance of the provisions of the West Pakistan Foodstuffs (Control) Act, 1958. No such action has been taken by the Government. Whether such action should preferably have been taken under the said Act is a wholly different matter. The question is whether the action taken under section 144, Cr. P. C. is in order.

7. Section 144 (1) provides: "In cases where, in the opinion of the District Magistrate ‑‑‑there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may . . . direct any person to abstain from a certain act, . . . if such Magistrate considers that such direction is likely to prevent . . . . danger to human life, health or a disturbance of the public tranquillity . . . " It may be noticed that the deciding factor is the opinion of the District Magistrate and this depends upon his subjective satisfaction. Even if it been asserted that such opinion required a reasonable basis, the outbreak of cholera in District Multan justified preventive action in District Sahiwal.

8. The order seeks to eliminate or reduce danger to public health or likelihood of disturbance of public peace and tranquillity. The District Magistrate, in view of the threat of epidemic, could insist that no ice, except ice manufactured from reliably tested water be sold in the district: The directions Nos. (ii) , (v) and (vi), set out above, were therefore validly made. If there was shortage of production, or the ice was sold at prohibitive rate, it was likely to disturb public peace and tranquillity. In order to ensure the requisite supply, directions Nos. (i) and (vii) could legitimately be made. In order to ensure availability of ice at reasonable rate‑‑‑which would eliminate likelihood of disturbance of public peace and tranquillity‑ directions Nos. (iii) and (iv) could legitimately be made. It follows that the impugned order is substantially covered by the provisions of section 144, Cr. P. C.

9. It is true that where the order is prohibitory in nature, it should be addressed to an individual and be served on him in the prescribed manner. In this connection reference may be made to Kusum Kumani Debi v. Hem Nalini Debi (A I R 1933 Cal. 724) where the prohibitory order is intended to prohibit the public in general, it may appropriately be brought to the notice of the public through suitable proclamation. It is ‑a stressed that the order directed to the public generally can be made only "when frequenting or visiting a particular place". Particular place' may be a well‑defined part of the district or may, if the circumstances so require, be the whole of the district. In this connection reference may be made to the case reported as Abdul Karim Shorish v. Emperor (A I R 1937 Lah. 80). Where the public in general was prohibited from holding meetings in the whole of the district of Lahore. In the instant case, the District Magistrate, Sahiwal was competent to prohibit the import of ice to any place in District Sahiwal. This objection, therefore, is without force.

10. The Health authorities in Sahiwal District were not in a position to check the water that may be used by the petitioner in the process of manufacturing ice in Kamalia. Preventive action could be taken in the way it has been taken. . Learned counsel for the petitioner contended that the water used by the petitioner in the manufacture of ice should first have been found to be contaminated water and thereafter he could be restrained from selling the ice in terms of the order and that the action taken is wholly unjustified. That action would have been punitive action and not preventive action. The District Magistrate is competent to take preventive action. The objection has no force.

11. For the foregoing, reasons I see no force in this petition, which is hereby dismissed.

Petition dismissed.

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