1. The applicant was convicted by the Additional City Magistrate, Karachi, for an offence under sections 5 (a) and 6 (I) (c) read with section 23 of the West Pakistan Pure Food Ordinance and sentenced to undergo R. I. for one year and pay a fine o Rs. 1,000 or in default to undergo R. I. for 3 months. The appea against the conviction and sentence was dismissed by the learne Sessions Judge, Karachi.
2. The applicant had a shop where he sold wheat flour. Oi 14th July 1965 Mr. S. M. Yahya, Food Inspector, Karac Municipal Corporation purchased half a seer of wheat flour fro the applicant and paid '25 as its price. This sample was divid into three portions which were separately sealed. One porti was given to the applicant and the signature on the declaration form was obtained from him while the other two samples were taken away by the Food Inspector. One of the sample was sent to the Laboratory for chemical examination and it was found that there was deficiency in gluten by 12.5 %, containing acidity 0.164% with a foul smell. Subsequently the applicant was prosecuted. He admitted the sale of the flour to the Food Inspector and the preparation of three portions. He also admitted that the declaration form bore his signature. However, he stated that he had left selling wheat flour since about 2/3 years and he had been grinding the wheat of other persons in his grinding mill and, therefore, the flour which was lying was not intended for sale. To establish this he examined three witnesses. On his application the sample which was delivered to him was also sent to the Chemical Analyser through Court but the Chemical Analyser could not give any opinion as the sample deteriorated having been sent after 7 months.
3. The learned Magistrate came to the conclusion that the appellant was selling the flour and, therefore, he was guilty of the offence. He rejected the defence evidence that the applicant had stopped selling flour. The learned Additional Sessions Judge confirmed this view. With regard to the subsequent analysis the learned Additional Sessions Judge, observed that if the appellant was sure that the wheat flour was genuine he should have immediately requested the Court to send the sample given to him to the Chemical Analyser for report but he kept it away with himself.
4. The learned counsel for the applicant raised two points before me. In the first place he urged that Mr. S. M. Yahya was not invested with the powers of the Food Inspector and, therefore, the complaint filed by him was not maintainable. I find no force in this contention. Mr. S. M. Yahya when he was Assistant Food Inspector was appointed as ex-officio Food Inspector. The investment of the powers upon him to act as Food Inspector was by name and not by virtue of his office.
5. Consequently by his promotion to the post of Additional Food Inspector his power to act as Food Inspector remained intact and no further investment was necessary.
6. The second point that was raised by the learned counsel was that the purpose of giving a portion of sample to the person from whom it had been secured was to safeguard his interest and if he was not satisfied with the anaylsis of the sample sent by the Food Inspector he could ask the Court to send his sample for the purpose of analysis but the prosecution took long time to file the prosecution and, therefore, not only the purpose was frustrated but he was deprived of the safeguard provided by law. In this connection the learned counsel pointed out that the sample was secured on 14-7-1965 while the first analysis was made on 13-8-65 and the report was made by the Analyser on 30-9-65 and the prosecution was filed on 1-1-66. The request on behalf of the applicant for sending the other sample for chemical analysis was made on 29th January 1966 and the sample for the second analysis was received by the Chemical Analyser on 14-2-1966 and the analysis was made on 2-3-1966.
7. So on the basis of this it was urged that the applicant had acted promptly and whatever delay was caused was due to the fact that the prosecution was filed nearly 5 months after the securing of the samples by the Food Inspector.
8. I find considerable force in this contention. Apparently the prosecution is responsible for the delay which was caused in this case, and for this the applicant could not be blamed. The applicant had made the request even long before the trial was resumed. The first witness in this case was examined on 9-7-1960. Thus the applicant was not in a position to request for the second analysis prior to it. The learned State Counsel in order to repel this contention urged that the sample which was given to the applicant by the Inspector was intended for his private use and he could get it privately analysed and he ought to have made a request to the Court to send the other sample which was retained by the Inspector. I find no force in this contention. It was pertinently observed in the case of Bhag- wandas v. State and another (1) which was sought in aid by the learned counsel for the State that the whole idea of prescribing elaborate method of taking and dividing the sample was to have check and counter-check on the report of the public Analyst. Of course the learned Judge observed that the sample was given to the accused person solely for his own protection and obviously was intended to enable him to have analysis privately for the purpose of producing evidence at the trial if necessary to contradict the report of the public analyst. With due respect I partly agree with this observation but I am unable to agree to the extent that the accused person should get it privately analysed. The applicant had made a request to the Court to send the sample in his possession for second analysis and his request was granted and the sample was sent through Court. There is no allegation that the sealed sample had been tampered in any manner. No duty was cast upon the applicant to request the Court to send the second sample which was still with the Food Inspector. In case the prosecution was dissatisfied with the second analysis of the sample produced by the applicant it should have made a request to the Court to send the third sample for analysis.
9. I further find another infirmity in this case. I have seen the original declaration form and in the column No. 9 where label or mark has to be shown the word 'nil' is written there. Obviously the sample was never labelled or marked and, therefore there is non-compliance with the mandatory provisions of law, which vitiates the proceedings taken by the Food Inspector. Consequently the prosecution is not sustainable. In this view I am supported by the authority in the case of Alif Gul v.
10. The State (2)
11. In the result I allow the revision application and set aside the judgments of the lower Courts as well as set aside the conviction and sentence passed against the applicant. Fine, if paid, should be refunded to him. .