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Criminal Revision No. 129 of 1978, decided on 1st October 1978.

-- R. 42 read with Notification No. S. O. III (N) (4)-6/75-Search Rule 42 imposing ban on search in certain hours-Deleted by Noti fication No. S. O. III (N) (4)-6/75 -Search conducted at midnight, held, not in contravention of law.-

- - S. 25 read with S. 18-Declaration -Contents of a declaration under S. 18-Evidence of facts contained in declaration-Declaration stating specimen having been taken from petitioner in presence of witnesses Declaration, held, evidence of fact of specimen having been taken in presence of witnesses.

Ss. 18, 19 & 21-Samples, analysis of-Delay-Accused having time to apply for sending second sample lying with him-Reliance on 1972 P Cr. L J 756, in circumstances, held, not correct.-

Zulfiqar All v. The State 1972 P Cr. L J 756 distinguished.

-- S. 18 (4)-Declaration--Filling of-Foodstuffs sold in open baskets and unlabelled containers-Column No. 9 of declaration form, held, need not be filled in such cases.

K. G. Saber for Petitioner.

Khalilur Rehman was convicted under section 6/23, Pure Food Ordinance, 1960 and sentenced to undergo imprisonment till rising of the Court and to pay a fine of Rs. 4,000 or in default to undergo six months R. I. vide order dated 25th April 1978, of the Magistrate Ist Class, Peshawar. He appealed to the Sessions Court and the learned Sessions Judge, while maintaining his conviction reduced the sentence of fine to Rs. 1,500. He is still dissatisfied and has moved the present revision petition.

2. It is contended on behalf of the petitioner that search was conducted at midnight, contrary to the provisions of law; there is no evidence to corroborate the statement of the Food Inspector that the sample was sold by the petitioner; and the petitioner has been prejudiced by the delay in px4rai nation by the Public Analyst.

3. There is no force in either of the above contentions. When the attention of the learned counsel was invited to the observation of the learned Sessions Judge that rule 42 of Pure Food Rules, Notification No has deleted 1965 imposing ban on search, in certain hour. S. O. III (N) (4)-6/75) he A conceded that it was so. As far as sale of specimen is concerned, the two Courts below have believed the statement of the Food Inspector and if it was the defence of the petitioner that the specimen was not taken from him in the presence of the marginal witnesses, he could have produced those wit nesses. Furthermore this argument over looks that section 25 of the Pure Food Ordinance, 1960 makes the contents of a declaration under section 18 ibid., evidence of the fact contained therein one such fact being that the specimen had been taken from the petitioner. As far as the last contention B is concerned to support it, the learned counsel has produced an authority of the Karachi High Court as in Zulfiqar Ali v. The State (1) but on going, through the same I have come to the conclusion at the facts of that case are clearly distinguishable. Firstly, in that case the accused bad made a request for second examination and he could not get an opinion to support his contention that sample was not adulterated for the reason that the same had deteriorated during 7 months prior to its second examination by the Analyst. This delay was occasioned by the fact that the first sample sent by the Food Inspector was retained by the Public Analyst for considerable time and his report was placed in the Court after about six months. Quite evidently the accused in that case could not be expected to apply for sending the second sample lying with him unless he was informed that the first sample had been C found adulterated. It will thus appear that there was no fault on the part of the accused if the second sample had deteriorated. As far as the observa tions in the penultimate paragraph of the judgment are concerned, I should like to say respectfully that these do not take into account the requirements of column 9 of the declaration which read

"Brief description of advertisement, if any, on container/packages."

This column could only be filled if the sample was being taken from container or package. There is a provision in the Ordinance and the rules for the sale of pre-packed food and warranty in certain cases. Column 9 need not be filled in cases when foodstuffs are sold in open baskets and unlabelled containers as was the case here.

4. There is no force in this petition and it is rejected in limine.

S. A. H. Petition dismissed.

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