1. ' This is an application under section 561-A, Cr.P.C. For quashment of proceedings pending against the applicants under section 6(1)(a) and (c) of the West Pakistan Pure Food Ordinance, 1960.
2. ' Briefly the facts relating to this petition are that on 22-6-1982 a complaint under section 6(1)(a) and (c) read with section 23 of the West Pakistan Pure Food Ordinance, 1960 (hereinafter referred as Ordinance), was filed by Dr. Jamil Ahmad, Assistant Health Officer, K.M.C. Karachi in the Court of Additional City Magistrate, East, Court No,8 against Masoodur Rehman and Syed Hassan Ahmed.
3. The allegation in the complaint is that on 22-5-1982 at 3-45 p.m. Sub-Inspector Iqbal Ahmed Qureshi, visited to Spinzar Snack Bar, Muhammad All Society, Karachi and purchased some chilli powder which was sealed and sent to Public Analyst, K.M.C., who opined that chilli powder was not a pure but contained wheat starch and bran particles and declared to be adulterated. The Magistrate took cognizance and ordered non-bailable warrants against the above accused on 4- 8-1982.
4. ' On 9-9-1982 an application under section 28, subsection (2-A) read with section 23(4) of the said Ordinance was filed by the respondents Nos.3 and 4 (accused) in which they have stated that they had purchased the chilli so secured, from Mehran Spices Industries, Karachi. They also produced a photostat copy of the warranty and requested the Court to issue a notice to the warrantor making them as accused in the case. The application was heard by the S.D.M. Karachi on 27-7-1982, who issued notice to the Factory Manager Mr. Ibrahim son of Ismail and owner Gul M. Memon. They furnished an explanation and finally by an order dated 8-8-1982, the applicants were also made as co-accused and process in the shape of bailable warrants was issued. Being aggrieved with that order the applicants have filed this quashment application.
5. ' Mr. Ahmed Saeed Qureshi, the learned counsel appearing for the applicants has raised the following contentions:-
(1) The S.D.M. Have wrongly taken the cognizance of this offence as there is no specific provision for joining the applicant as co-accused. He has cited PLD 1953 FC 145 and stated that very cognizance is illegal and the Magistrate has no jurisdiction.
(2) That the provisions as contemplated under section 28(3)(a) have not been complied with. On this he has cited the case reported in 1971 P Cr. L J 985.
6. ' Mr. Muslim Naqvi, learned counsel appearing for respondent No,2, has argued that the complaint has been filed by K.M.C. Against respondents Nos.3 and 4, and not against the applicants. He has also stated at the bar that K.M.C. Has no intention to take any action against the applicants.
7. ' Mr. Imam Bakhsh Shaikh, learned counsel appearing for the State has supported the application and argued that in the present case the warranty produced by the main accused is of 1980 whereas the chilli powder was secured in 1982 and there is no compliance of section 28(3)(4) of the said Ordinance.
8. ' So far the first contention of Mr. Ahmed Saeed Qureshi is concerned, no doubt, that under section 32 of the said Ordinance no Court shall take cognizance of any offence punishable under this Ordinance except on the report in a writing of the facts constituting such offence made by a Health Officer of a Local Authority or an Inspector authorised in this behalf by a general or special order of the Director or Government. The relevant section for the purpose of taking cognizance is section 28(4) by which Court is competent to summon the warrantor as an accused if it admits the warranty issued by seller or on behalf of the seller. The facts of the reported case cited by the learned counsel are different. In my view the Magistrate has rightly taken the cognizance under section 28 of the Ordinance and there is nothing wrong about the jurisdiction of the Magistrate.
9. ' Reverting to the next contention and the facts of the case it is correct to say that in view of section 28, the seller of the article can plead his defence provided the condition laid down under subsection (2)(3) of section 28 are fulfilled.
10. From the perusal of the order dated 8-8-1982 passed by the Assistant Commissioner it is clear that notice under section 28, subsection (3)(a) has not been issued and the condition laid down in that provisions have not been complied with but the S.D.M. Has stated that the application made to the Court is deemed to have been understood as a notice under section 28(3) of the said Ordinance. In my view this presumption of the Assistant Commissioner is not correct as there is clear violation of the mandatory provisions of law. In case of Muhammad Ashraf and others v. The State 1971 P Cr. L J 985 it has been held that if trial Court making departure from the procedure described under section 28 of the said Ordinance proceedings against the petitioner are liable to be quashed.
11. Furthermore the chilli powder is used daily inB Snack Bar and this powder was secured in 1982 whereas the warranty on which the reliance has been placed by the main accused is that o 1980 which cannot be considered as an evidence. In the circumstances when samples were secured in the year 1982.
12. ' In view of the reasons stated above I accept the application and set aside the order of the S.D.M.
13. Dated 8-8-1982, consequently the proceedings against applicants Gul Muhammad and Muhammad Ibrahim stand quashed. The case against respondents Nos.3 and 4 to procee according to law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.