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Criminal Revision No. 319 of 1976, decided on 25th May 1976.

‑‑ S. 23(1)(a) read with West Pakistan Pure Food Rules, 1965, r. 39‑Criminal trial‑Provisions of r. 39‑Mandatory in character-- Sample of adulterated milk not taken in presence of two respectable persons as required by r. 39‑Conviction and sentence set aside, in circumstances.‑[Criminal trial].

Additional Advocate‑General, West Pakistan etc. v. Rajab and others P L D 1967 Kar. 277 rel.

Syed Shams‑ud‑Din Mahmood for Petitioner.

Syed Muhammad Ali Naqvi for A. G. for the State.

Date of heating : 25th May 1976.

Sikandar petitioner was convicted under section 23 (1) (a) of the West Pakistan Pure Food Ordinance, 1960 and sentenced to two months' R. I. And a fine of Rs. 130 or in default to suffer further R. I. for one month by Mr. Imdad Ali Malik, Magistrate Ist Class, Multan, vide his order dated 20.6‑1974. The petitioner preferred an appeal, which was dismissed by the learned Sessions Judge, Multan by his order dated 3‑3‑1976. Hence this revision petition.

2. Briefly the prosecution case is that Dr. Fazal Elahi (P. W. 1), Health Officer, Municipal Committee, Multan on 22‑8‑1972 at 9 a. m. took a sample of cow milk from the possession of the petitioner, which he was bringing to the city for sale, and scaled it into three separate bottles vide declaration form (Exh. P. A.). One of the said bottles was sent to the Public Analyst for analysis who vide his report (Exh. P. B.) found that the sample was adulterated and was deficient in milk fat to the extent of twenty -six percent. Sh. Abdul Aziz, Chief Sanitary Inspector, Municipal Committee Multan (P. W. 2) supported him though this witness did not sign the declaration form (Exh. P. A).

3. I have heard the learned counsel for the petitioner as well as learned counsel appearing for the State and with their assistance have gone through the record of the case. Learned counsel for the petitioner strenuously contended that the provisions of Rule 39 of the West Pakistan Pure Food Rules, 1965 have not been complied with inasmuch as two respectable have not witnessed the declaration form showing that the sample was taken in their presence and that non‑compliance of this mandatory rule vitiates the whole proceedings.

4. Having considered the argument of the learned counsel for the petitioner I think that this revision petition is bound to succeed. Rule 39 of the West Pakistan Pure Food Rules, 1965 reads as under: ‑

"39. Procedure for seizure of unsound food.‑(I) If in any market .... or other place used for the sale of any food intended for human Consumption-------an Inspector finds any article of food which in his opinion is or appears to be injurious to health or is decayed or putrefied, he shall, in the presence of two respectable persons--------cause the article to be seized and taken into his custody-----------"

(underlined is mine).

A perusal of the declaration form (Exh. P. A.) indicates that the sample was not taken in the presence of two respectable persons because there are no such signatures on the form. Thus Dr. Fazal Elahi, Health Officer did not act in accordance with Rule 39 of the W. P. Pure Food Rules, 1965, which is mandatory in its character. Reliance in this connection can be placed on a D B. case reported as Additional Advocate‑General, West Pakistan etc. v. Rajab and others (P L D 1967 Kar. 277).

5. For the aforesaid reasons I accept this revision petition and set aside the conviction and sentences of the petitioner and acquit him of the charge. The amount of fine, if realised, shall be refunded to the petitioner. The petitioner who is in Jail shall be released forthwith provided he is not required for any other case.

Petition allowed

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