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Criminal Revision No. 926 of 1963, decided on 20th November 1968.

Ss. 23, 31 & 32‑Complaint lodged by Municipal Food Inspector without having beers authorised to do so under S. 32‑Court not competent to take cognizance of offence on such complaint‑‑Conviction and sentence set aside.

The accused, on conviction by Mr. Masood Ansari, Magis trate II Class and then in appeal by Sh. Ikramul Haq, A. D. M., Montgomery exercising the powers of a Magistrate of the 1st Class in the Montgomery District, was sentenced, by Order, dated 29‑7‑63 by Masood Ansari and 28‑8‑63, by the learned Addl. Distt. Magistrate respectively under section 23 of West Pakistan Pure Food Ordinance, 1960.

The facts of this case are as follows: ‑

Mubarik Ali son of Raunaq Ali was proceeded against by Mr. Masud Ansari, Magistrate 2nd Class on the complaint of Mr. Nazir Ahmad, Pure Food Inspector, Municipal Committee, Montgomery, under sections 6 (1) (a), 23 (1) (a) of the West Pakistan Pure Food Ordinance, 1960. The lower Court examined Nazir Ahmad, Pure Food Inspector, who deposed that on 26‑6‑62 at 11‑00 a.m. in Pakpattan Bazar, Montgomery, he took sample of milk meant for sale from the possession of the accused, who was taking the milk on his cycle. He made three sealed parcels of the same milk; one was given to the accused and the other was sent to the Provincial Public Analysis, Lahore, for analysis. On the report of the Analyst Exh. PB, it was found that the milk was adulterated to the extent of 10 percent. with water in excess. The milk was found deficient in milk fat to the extent of about 57 percent. The accused was convicted and sentenced to six months' R. I. and a fine of Rs. 100 and in default of payment of fine to undergo further R. I. for a period of 12 months. He was also directed to pay an amount of Rs. 30 as costs of analysis etc., on 29‑7‑63. An appeal was preferred to the learned A. D. M., Montgomery against the said order, which was rejected on 28‑8‑1963. The accused has preferred a revision from the said order. The proceedings are forwarded for revision on the following grounds :‑

(1) The file does not show that Mr. Nazir Ahmad, Pure Food Inspector, Municipal Committee, Montgomery, has been authorized by the Director, Health Services, West Pakistan, to prosecute the offenders of the Pure Food Ordinance. There is a copy of the memo. to the same effect, on the file, which is neither attested nor signed by any responsible officer. It has not been exhibited in evidence. I have searched the Gazette Notification from May 6, 1961 onwards. There is no Notifica tion in the official Gazette of the said authorization in favour of Ch. Nazir Ahmad, P. F. I., Municipal Committee, Montgomery.

(2) Under section 57, subsection (vii) of the Evidence Act, no judicial notice can be taken of the authorization in favour of Ch. Nazir Ahmad, as there is no Gazette Notification.

(3) Under section 114, illustration (e) of the Evidence Act, if there is no evidence on record that a particular act has been performed, then nothing in law enables a Court to presume that that act was performed as a matter of fact.

(4) Under section 32 of the Pure Food Ordinance, 1960, no Court shall take cognizance of any offence under the Ordinance except on a report in writing of the facts constituting the offence unless it is made by an Inspector authorized in this behalf by a general or special order of the Director, Health Services. There was thus no complaint before the Court.

(5) In the meantime, I direct that the sentence passed on Mubark Ali is suspended and lie should be bailed out and if required to appear before the honourable High Court on the date fixed in that Court. He is to furnish bail of Rs. 1,000 with one surety to the satisfaction of the Duty Magistrate, Montgomery.

Nemo for Appellant.

Miss Gulshan Ara for A.‑G. for the State.

.‑Mubarak Ali (30), Milk Seller of Montgomery, was convicted by Mr. M. Masood Ansari, Magistrate II Class, Montgomery, under section 23 of the West Pakistan Pure Food Ordinance, 1960, and sentenced to undergo rigorous imprisonment for a period of six months and a fine of Rs. 800, or in default of payment of fine, to undergo further rigorous imprisonment for one and a half months. He was also ordered to pay Rs. 30 as costs of analysis to the Municipal Committee, Montgomery.

2. Mubarak Ali preferred an appeal to the Additional District Magistrate, Montgomery, who, however, dismissed the same by order dated the 28th of August 1963.

3. After dismissal of the appeal, Mubarik Ali preferred a revision petition and the learned Additional Sessions Judge, Montgomery, submitted the case to this Court. In his view Nazir Ahmad, Municipal Food Inspector, was not authorised by the Director, Health Services, in pursuance of section 32 of the West Pakistan Pure Food Ordinance, 1960, to file a complaint constituting the offence.

4. The prosecution case was that on 29‑7‑1963, Mubarak Ali was found in possession of milk which on chemical analysis showed to be deficient in milk‑fat to the extent of 57 percent. and adultered with excessive water to the extent of 10 percent. He was prosecuted at the instance of Mr. Nazir Ahmed, Municipal Food Inspector, Montgomery.

5. Today Miss Gulshan Ara, Advocate appeared on behalf of the State and conceded that no notification, ex officio or by name, had been issued authorising Mr. Nazir Ahmad, Municipal Food Inspector, Montgomery, to file a complaint, in pursuance of section 32 of the said Ordinance. The complaint having been made by a person not competent to do so, the Court was not competent to take cognizance of the offence vide section 31 of the said Ordinance and, therefore, the ultimate conviction was bad in law.

6. For the aforesaid reasons, I accept the revision petition and set aide the conviction and sentences passed upon the petitioner, Mubarak Ali and acquit him.

Petition accepted.

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