' The petitioner Mubarak Din was tried and convicted under section 23 of the West Pakistan Pure Food Ordinance, 1960, for violating the provisions of section 6 of the said Ordinance and sentenced by the Magistrate, First Class, Nowshera to undergo rigorous imprisonment for three months and to pay a fine of Rs, 2,000 or in default to undergo further rigorous imprisonment for two months. His appeal to the Court of Sessions having been dismissed by the Additional Sessions Judge, Nowshera, he has come up in revision to this Court.
2. The facts admitted before me during the course of arguments and as disclosed from the evidence are that on 19th November, 1978 Masai Khan, Food Inspector, Nowshera visited the shop of the petitioner at 11-00 a. In. He obtained .Three bottles of honey from the shop and sealed them.
One of the bottles was handed over by him to the petitioner, one was retained by him and the .Third was taken to the Public Analyst. The report of the Public Analyst discloses that the contents of honey did not conform to the standard laid down under item 50 of Appendix 11 to the West Pakistan Pure Food Rules. 1965 (hereinafter referred to as the Rules) read with rule 20 ibid and section 6 (b) of the West Pakistan Pure Food Ordinance. 1960 (hereinafter referred to as the Ordinance). The report of the Public Analyst (Exh. P. A.) and the evidence of Masal Khan, Food inspector, Nowshera form the basis of conviction of the petitioner ' The learned counsel appearing for the petitioner has contended that the conviction of the petitioner is bad in law inasmuch as Masal Khan, Food Inspector, has not only failed to observe the formalities as laid down in rule 39 of the Rules but has also violated the mandatory provisions of section 20 of the Ordinance.
4. Section 20 of the Ordinance reads as follows :- "20. Methods of taking samples.-(1) An Inspector after purchasing or procuring or seizing any food with intention of submitting the same for analysis shall, forthwith, divide the food in three pal is to be then and there separated and each part shall be marked, sealed or fastened in such manner as the nature of the case will permit : and the person from whom the sample is taken may, if he so desires, also affix his seal or make on each of the three parts.'
' Rule 39 of the Rules as amended by Notification of the 11th February, 1977 is as under :- "39. Procedure of seizure of unsound food.---(1) If in any market, godown, shop, stall or other place used for the sale of any food intended for human consumption or for the preparation, manufacture or storage or any such food for purpose of trade or sale. An Inspector finds any article of food which in his opinion is or appears to be injurious to health or is decayediputrified. He shall in the presence of two persons and if practicable of the owners of his article or his agent or of the occupant of the premises forthwith cause the article to be seized and taken into his custody. Kit inventory of the article seized and of the receptacle or utensil in which it was kept shall be prepared, and signed by the persons witnessing the seizures. And the article seized shall be sealed in their presence." ,
5. From the evidence of Masai Khan. Food Inspector, it appears that he had taken three separate bottles from the shop of the petitioner. One of the bottles was sent to the Public Analyst, one retained by himself and one was given to the petitioner. The learned counsel argues that this procedure is not in accordance with the spirit of section 20 of the Ordinance nor it conforms to the procedure laid down in rule 39 of the Rules.
6. As regards the violation of the Rules it was contended that rule 39 ibid specifically provides that the articles to be taken into custody should, be so taken in the presence of two persons and the owner of the articles. In this case, it was contended, no other person was associated with the taking of the custody and, therefore, the entire method of procuring the samples was illegal and the subsequent proceedings iotall) vitiated the action taken against the petitioner.
7. Section 20 of the Ordinance, according to the learned counsel, was violated inasmuch as the Food Inspector did not divide the seized honey in accordance with the spirit of subsection (2) thereof but instead took three separate bottles one of which was sent to the Public Analyst. He argues that since the bottle in possession of the petitioner contained material different from the one which was sent to the Public Analyst, the petitioner was deprived of opportunity of establishing his own case by sending the portion intended for his protection in accordance with the provisions of said subsection (2) to get the sample in his possession analysed as authorised under section 19 of the Ordinance,
8. The learned counsel appearing for the State, however, argued that rule 39 is not mandatory and the violation thereof has no effect when the provisions of the Ordinance have been followed.
Regarding section 20 of the Ordinance it was argued that all the three bottles bore the same trade mark and, therefore, it must be presumed that all the three bottles contained the same ingredients and if the petitioner wanted to prove his case by analysing the bottle in his own possession he could very well do so, and that if he had obtained a favourable report he could have been able to rebut the evidence against him.
9. In my opinion rule 39 is not merely directory but is mandator inasmuch as the spirit of the rules is that the Food Inspector should no t by himself without any supporting evidence initiate the proceedings agains a person in possession of articles of food. On principle also the only evidence of the Food Inspector without corroborating evidence is not to be, accepted as gospel truth for the obvious reason that the persons doing Oleo executive duties in such cases are interested parties to the proceedings and their evidence has to be corroborated from other evidence as well. If rule 39 was not there then a Food Inspector could easily concoct evidence 'against a shop-keeper for some reasons other than the reason for which the Ordinance has been enacted, The rule appears to have been specibcally framed to avoid such an eventuality,
10. I am also in agreement with the learned counsel for the petitioner that section 20 of the Ordinance has also not been followed in spirit. As is clear from the evidence of the Food'Inspector and the fact has not been denied by the learned counsel appearing for the State that tla.4. Food Inspector took into custody three bottles of honey and One of them was sent to the Public Analyst ; the other two being dealt with in accordance with the provisions of subsection (2) of section 20 of the Ordinance. It appears to me that this is clearly an improper and illegal manner of obtaining the samples. Obviously the three bottles were distinct and their contents were separate. There is every likelihood of the contents of the three bottles not being uniform. The intention of prescribing elaborate method of taking samples and dividing up the samples into three parts is for checking and counter checking the report of the Public Analyst. The idea of giving one sample to the accused person is intended for his protection to enable him to have it analysed privately in accordance with the provisions of section 19 of the Ordinance for the purpose of producing evidence at the trial to contradict the report of the Public Analyst, In the present case since the bottle in possession of the petitioner was different from the bottle which had been sent to the Public Analyst, no useful purpose could have been served if the petitioner had privately got analysed the bottle which was handed over to him by the Food Inspector. In my opinion the entire procedure adopted in this case is faulty which has rendered the trial a fake one. The evidence of the Food Inspector is not supported by evidence of any other witness and the petitioner was deprived of opportunity of establishing that the report of the Public Analyst was not correct. Had the sample been taken in the presence of two other persons in accordance with rule 39 of the Rules and had only one bottle been divided into three separate parts then this difficulty would not have arisen and the guilt or the innocence of the accused could have been established on its own merits.
11. As the matter stands, I am of the view that the State has not been able to establish its case against the petitioner on the part of the failure of the Food Inspector to observe rule 39 of the Rules and section 20 of the Ordinance, The petition, therefore, must succeed.
12. 1 have already by a. Short order accepted the petition and set aside the conviction and sentence of the accused and this order gives the reason there-for.