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 sir months' R. I. Vide order dated 25th April, 1978 of the Magistrate 1st 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 mid-night;, 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 examination 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, 1965 imposing ban oh search in certain hour has been deleted by Notification No. S. O. III (N)- 4 (4)-6/7 he 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 anti' 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 witnesses. Furthermore this argument overlooks that section 25 of the Pure Food Ordinance, 1960 makes the contents of a declaration under section 18 ibide evidence of the facts contained therein one such fact being that the specimen had been taken from the petitioner. As far as the last contention is concerned to support it, the learned counsel has produced an authority of the Karachi High Court as in Zulfiqar Ali v. The State (1972 P Cr. L J 756) but on going through the same I have come to the conclusion that the facts of that case are clearly distinguishable. Firstly, in that case the accused had 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 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 observations 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 desoription of advertisement, if any, on container/packages."
This column could only be filed if the sample was being taken from container or package. There is a provision in the Ordinance and the rules for the sale of prepacked 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.