IJAZ AHMAD CHAUDHRY, J. --- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks setting aside of the order dated 18.1.2010 passed by the learned Additional Sessions Judge, Daska, District Sialkot in revisional jurisdiction through which the order dated 10.9.2009 passed by the learned Magistrate Section 30, Daska, District Sialkot has been set aside. Brief facts of the case are that the petitioner has established a business of selling all brands of the Pepsi Cola Company. Three samples were taken from the petitioner on 22.12.2008 by the District Health Officer, Sialkot which were sent to the Chemical Examiner for its chemical analysis. The report of the Chemical Examiner received thtt he said bottles being sold by the petitioner contained material which was spurious and hazarded injurious to public health. As a result of the said report the premises of the petitioner was scaled by the Deputy District Officer (Health), Daska on 23.2.2009 under Section 146-D of the Punjab Local Government Ordinance, 2001 and the matter was also reported to the local police station. It is claimed by respondent No. 3 that the petitioner himself had de-sealed the agency unlawfully because formal F.I.R. No. 244 was registered on 31.3.2009 under Sections 420, 188, P.P.C. And 23(1) of Pure Food Ordinance, 1960 at Police Station Sambrial and on 2.4.2009 the agency was again scaled by respondent No. 3. The petitioner filed an application before the Area Magistrate for desealing the agency which was accepted vide order dated 26.6.2009 but respondent No. 2 filed revision petition which has been accepted by respondent No. 1 vide order dated 24.7.2009. Then said order was challenged by the petitioner by filing Writ Petition No. 15674 of 2009 and the writ petition was disposed of on 17.8.2009 with the observations that the petitioner has an alternative remedy by filing an application before the learned Area Magistrate who is fully empowered to deseal the premises. In pursuance of the said observation the petitioner again moved an application to the Area Magistrate and the Area Magistrate has accepted the application of the petitioner vide order dated 10.9.2009 wherein he directed the Local Government to de-seal the premises but the revision petition was filed by respondent No. 2 which has been accepted through the impugned order dated 18.1.2010 and the order dated 10.9.2009 has been set aside, hence the present writ petition.
2. The learned counsel for the petitioner contends, that the necessary requirements before scaling of the premises under Section 146-D were not fulfilled and only the Inspector could seal the premises but the present order for sealing of the premises was passed by the Deputy District Officer (Health), Daska. It is further contended that no notice was issued to the petitioner before taking of the sample and sealing of the premises, therefore, an ex parte order has been passed. It is further contended that the Deputy District Officer (Health), Daska was himself interested in closing the business of the petitioner because he is also running the same business under the name and style of other person. In such circumstances it is contended that the impugned order is not sustainable and this petition may be accepted. Reliance is placed on a judgment dated 20.6.1973 rendered by this Court in Writ Petition No. 1187 of 1973:
3. It is contended by the learned counsel for respondent No. 3 that the conduct displayed by the petitioner is that he himself had de-sealed the premises and an F.I.R. Was got registered by the Deputy District Officer (Health), Daska against the petitioner. It is also contended that in the earlier round of litigation the writ petition was filed by the petitioner and the order passed in that writ petition was not Challenged by him in any higher forum, therefore, the order is still in the field. It is further contended that a petition was moved by respondent No. 2 and it was clarified that if the petitioner has already availed the alternate remedy by. Filing an application before the Area Magistrate in that eventuality the application will not be maintainable. The learned counsel for respondent No. 3 contends that samples were taken on 22.12.2008 and the report of Chemical Examiner was received on 29.12.2008 and only thereafter the premises has been sealed after adopting the procedure on 23.12.2009. The learned Assistant Advocate-General contends that under Section 146-D of the Punjab Local Government Ordinance, 2001 the permission from the Area Magistrate is required before entering into residential house and not the premises which is used for working place. It is contended , that the judgment being relied by the learned counsel for the petitioner was passed in the year 1973 which is not applicable to the present case as in the said judgment it was declared that the person who was not empowered under the law could not de- seal the premises, but in the present case all the legal formalities have been fully followed. It is contended that on the same grounds second writ petition has been filed which is not maintainable and even otherwise the petitioner is involved in fifteen F.I.Rs. Of selling the material which is spurious and hazard injurious to the health of public in the bottles.
4. I have heard the learned counsel for the parties and perused the documents appended with the writ petition as well as the impugned order passed by the learned Additional Sessions Judge dated 18:1.2010 and noticed that the controversy between the parties is regarding sealing or de-sealing of premises. Section 146-D provides criteria for scaling the premises which is reproduced as under:- 146-D. General powers of Inspectors.-- (1) In case of any serious threat to the public health, safety or welfare or danger to life and property, the Inspector may, in his area of jurisdiction, in addition to imposition of fine or initiating prosecution under this Ordinance:--
(a) Suspend any work;
(b) Seize the goods;
(c) Seal the premises;
(d) Demolish or remove work; and
(e) Issue directions for taking corrective measures in the time specified by him: Provided that no Inspector shall enter any residential premises save with the permission of the occupier or owner or Court:
(2) An Inspector authorized under Section 142 shall have the powers in relation to the offences specified in the Fourth Schedule to:---
(a) issue notices in writing on behalf of the respective local government served, either personally or through registered post with acknowledgement due by any official of the local government, in order to restrain violations or commission of any offence forthwith;
(b) initiate legal proceedings in the competent Court where any person fails to comply with the directions contained in the notice issued under clause (a); and
(c) assist in defending any legal proceedings initiated against the local government."
4. It has been contended by the learned Assistant Advocate-General that for entering into the premises which is being used for the commercial purposes no need is required to be obtained from the concerned Magistrate as such permission is required only when the premises are used for residential purposes. In the present case if the permission was not required, it was not fatal as the said premises was admittedly being used for the commercial purposes where the petitioner has established an agency for the sale of bottles. As regards the other objection raised by the learned counsel for the petitioner that the Deputy District Officer (Health) was not competent to seal the premises and the only competent authority in that regard was the Inspector suffice it to say that the Deputy District Officer (Health) was the Incharge of said Tehsil and he was responsible the matters concerning to the Health Department and for the health of general public in his area. Admittedly conducting of raid for the purpose of checking the eatable things which were to be used for the general public ought to have been checked by the Government in order to safe the general public from the persons who are preparing and selling adultered materials, which is injurious to the health of the general public. In the present case samples were taken on 22.12.2008, which were sent for the chemical analysis and the report of the Chemical Analyst was received on 29.12.2008 to the effect that the said bottles contained spurious and hazard injurious material and the same was of Course determental to the health of human being. As such material has been declared injurious under Section 146-D of the Punjab Local Government Ordinance, 2001 and the Deputy District Officer (Health) was empowered to seal the premises which is being used for the said purpose by the petitioner so as to restrain him from doing such illegal .Activity who was running the said agency and playing with the health of the general public. The requisite procedure was adopted and no material illegality or irregularity is found to have been committed by the Deputy District Officer (Health), Daska during the process of sealing the said premises. Even otherwise the learned counsel for respondent No. 3 has pointed out that the petitioner was continuously selling the spurious bottles which were dangerous to the health of the general public and those were not manufactured by the original recognized agency of Pepsi Cola. Moreover, about fifteen criminal oases have already been registered against him in this regard, the detail of which is mentioned as below:---
(1) F.I.R. No. 397/08, dated 5.7.2008.
(2) F.1.R. No. 442/08, dated 24.7.2008.
(3) F.I.R. No. 1647/08, dated 25.12.2008.
(4) F.I.R. No. 526/08, dated 25.12.2008.
(5) F.I.R. No. 151/08, dated 13.3.2009.
(6) F.I.R. No. 527/08, dated 19.10.2008.
(7) `FIR. No. 487/08, dated 25.9.2008.
(8) .F.I.R. No. 247/08, dated 5.7.2001.
(9) F.I.R. No. 105/08, dated 16.5.2001.
(10) State v. Muhammad Bilal, complaint pending in the Court of Special Judicial Magistrate, Sialkot.
(11) State v. Arain Traders, complaint pending in Consumer Court, Sialkot.
(12) F.I.R. No. 244/09, dated 31.3.2009.
(13) F.I.R. No. 221/08, dated 15.4.2009.
(14) F.I.R. No. 312/08, dated 22.4.2009.
(15) F.I.R. No. 189/08 registered at Police Station Badiana.
5. The petitioner seems to be a habitual person in selling the adultered bottles to be used for drinking and number of criminal cases mentioned above had been registered against him who does not deserve for any leniency by this Court writ jurisdiction. Even otherwise the petitioner himself, as per allegation, .Had de-sealed the premises after sealing of the same and when it was brought to the notice of the concerned authorities a criminal case vide F.I.R. No. 244 was got registered against him on 31.3.2009 under Section 244 at Police- Station Sambrial in respect of offences under Sections 420 and 188, P.P.C. And Section 23(1) of Pure Food Ordinance, 1960 on the complaint of Deputy District Officer (Health) and the premises were re-sealed on 2.2.2009. The conduct of the petitioner disentitles him to the grant of extraordinary relief by way issuing a writ in his favour. The learned counsel for the petitioner has laid down a great emphasis on technical reasons for de-sealing of the premises instead of showing any good reason for his false implication in the present case. The Hon'ble Supreme Court of Pakistan in Imtiaz Ahmad's case reported as PLD 1963 SC 382 has held that mere technicalities cannot thwart the justice, but these can be used in aid of justice.
5. From the above discussion it is found that the petitioner has not been able to make out a case for setting aside of the order dated 18.1.2010 passed by the revisional Court and also failed to point out any illegality in the impugned order. This petition is devoid of any merit and the same is dismissed as such .