' The petitioner was tried for an offence under section 23(1) of the West Pakistan Pure Food Ordinance 1960 by the Magistrate 1st Class Kot Addu. The trial Court found the petitioner guilty of the said offence and sentenced him to undergo R.I. For two months with a fine of Rs, 130 (in default of payment further R.I. For one month). The appeal filed by the petitioner against his conviction and sentence was dismissed by the learned Additional Sessions Judge, Muzaffargarh vide his judgment dated 11-8-1976. Hence this revision petition.
2. According to the prosecution story, the Chief Officer/Pure FoodInspector checked the petitioner on 10-10-1975 and took sample of buffalo milk which was being carried by the petitioner for purpose of sale. The sample was sent to the Public Analyst Multan who found vide his report Exh.P.S. That the sample did not conform to the standard prescribed by the Rules as it contained water to the extent of 31%.
3. It is contended by the learned counsel for the petitioner that Rana Riasat All P.W.1 was not a Pure Food Inspector and had no authority under the law to check the petitioner or to obtain the sample of milk from him. He further contended that only 6 Chhatanks of sample was taken whereas under Rule 46 of the Pure Food Rules, it was incumbent upon the Inspector to obtain sample of at least 12 Chhatanks of milk. According to the learned counsel, the petitioner was not granted a proper opportunity to defend himself. Lastly it was submitted that the petitioner was not confronted with all the incriminating circumstances appearing against him in his statement under section 342, Cr.P.C. On the other hand, the learned counsel appearing for the State contended that the Chief Inspector of the Municipal Committee was a Pure Food Inspector by virtue of the provisions of section 16 of the Pure Food Act. He further submitted that the milk recovered was much more but only 6 Chhatanks was sent to the Analyst and thus Rule 46 was not violated.
4. I have considered the respective contentions of the learned counsel for the parties and gone through the record. The section 16 of the Pure Food Act reads under:- "16. Appointment of Inspectors.-- (1) Government may appoint Inspectors in respect of all or any specified food, and an Inspector so appointed shall have jurisdiction in such area as Government may direct.
(2) ................................................
(3) ................................................
(4) The Health Officers and Sanitary Inspectors of Local Authorities and such other direct holders of offices and posts in or under a Local Authority and such officers in the service of Government, as Government may, by notification in the Official Gazette, specify in this behalf, shall be ex officio Inspector in respect of all foods within the limits of their respective jurisdiction."
Under section 16 of the Act, the Health Officers and Sanitary Inspectors of Local Authorities are ex officio Inspectors but the other direct holders of posts in or under a local authority become Inspectors only if their names are specifically notified in the official Gazette. Admittedly, no notification was ever issued under the above-referred provisions of the law specifying the name of the Chief Officer as the Inspector. Hence he had no right to check the petitioner and obtain the sample of milk from him. The recovery itself was illegal and all the subsequent proceedings including the investigation and trial of the petitioner A were illegal and liable to be quashed. There is also substance in the second contention raised by the learned counsel for the petitioner that only 6 Chhatanks of milk was recovered from the petitioner which was divided into three parts as required under section 20 of the Ordinance and only 4 ounces were sent to the Public Analyst as against 8 ounces, required by Rule 46 of the West Pakistan Pure B Food Rules, 1965. Hence, the conviction of the petitioner based on such sample was not maintainable as held in a similar case reported as Ghulam Muhammad v. The State PLD 1976 Lah.
720. The same view was taken in Muhammad Shah v. The State PLD 1966 (W.P.) Pesh.
184. In both the reported judgments, it was held that the sample forwarded for the purpose of analysis should not be less than the quantity specified in Rule 46. The analysis made on the deficient quantity was legally defective and vitiated the opinion of public analyst. Hence no reliance could be placed on the report of the public analyst saying that the sample analysed by him contained 31% of milk.
5. In this view of the matter the revision petition is accepted, the conviction and sentence of the petitioner is hereby set aside and he is acquitted of the charge against him. The petitioner is already on bail. His bail bonds shall stand discharged.