' SHAH JEHAN KHAN YOUSUFZAI, J.---The instant writ petition has been filed through the Representative of the Pakistan Flour Mills Association, N.-W.F.P. Branch, Peshawar, under Article 199 of the Constitution of Pakistan, 1973. The prayer made in the petition is to the effect that the respondents may be directed to maintain the moisture level instead of 12% to 16% of the wheat flour; that the relevant rules with regard to moisture contents may be altered in view of the changed circumstances and; that the respondents may be restrained from awarding double punishment to the petitioner.
2. It is contended in support of the petition that maintaining the upper limit of 12% moistures contained in the wheat is impossible as it already contained more than 14% moisture contents before putting it to milling process. It is also contended that the flour mills owners are punished twice i,e, under the West Pakistan Flour Mills (Control) Order, 1959 and The Pure Food Ordinance, 1960 which is against Article 13 of the Constitution of Pakistan.
1973. The learned counsel in support of his aforesaid contentions referred to certificates appended as G/1 to G/5 issued by the Regional Grain Inspector, Industry Services Division, Eastern Region, Canada wherein moisture test has been shown as 14.2% and 14.3 respectively. It is submitted that the Chief Executive of the Village Flour Mills has also explained their difficulties in maintaining the upper limit of 12% moisture contained in the wheat vide letter of grievance dated 2-7-1996 appended as Annexure 'FI'. As regards his second contention the learned counsel referred to the F.I.R. D/1 registered under section 8/23 of the Pure Food Ordinance, 1960 at Police Station. Rahim Abad, District Swat against the Manager, Marghuzar Flour Mills and an order of the Controller of Flour Mills/Director Food, N.-W.F.P., Peshawar, for suspension of wheat quota of the said Mills was obtained on 14-4-1996 whereby the wheat quota of the concerned Mills was suspended for ten days with a warning and argued that the aforesaid Mill was punished twice for the said Act.
3. After hearing the learned counsel for the petitioner at some length we have arrived at the conclusion that this writ petition merits dismissal for the following reasons:--
(i) As regards upper limit of moisture content, it shall not exceed 12 per cent. Rule 54 of the Pure Food Rules. 1965 is reproduced as under:-- "54. Food grains shall include wheat. Gram. Rice, barley. Oats, maize. Iawar, baira and pulses.-Food grains for human consumption shall be clean, dry and free from moulds and insect damage, and smell, discoloration and admixture with deleterious and toxic material. Food grains bad conform to the following standards:--
(a) Colour... ... . . ...........
(b) Smell... .............
(c) Taste. . .....................
(d) Foreign matter..........................
(e) Foreign foodgrains..................
(f) Damaged grains......................
(g) Insect damaged grains..............
(h) Sound grains............................
(i) Moisture content.--The moisture content at any time irrespective of climate or season, shall not exceed 12 per cent.
The Pure Food Rules, 1965 have been framed under section 37 of the Pure Food Ordinance, 1960. An act to govern the preparation and sale of food and protection against adulterated food for safety of public health. Adulterated food has been defined in section 2(1) of the Ordinance, 1960 which reads as under:-- "(1) 'Adulterated food' means an article of food--
(i) which is not of the nature, substance or quality which it purports or is represented to be, or
(ii) which contains any such extraneous substance as may affect adversely the nature, substance or quality thereof, or
(iii) which is processed, mixed, coloured, powdered or coated with any other substance in contravention of the rules, or
(iv) any constituent of which has been wholly or in part abstracted so as to affect injuriously its nature, substance or qualify, or
(v) which contains any poisonous or other ingredient which may render it injurious to health, or
(vi) the quality or purity of which does not conform to the prescribed standards, or
(vii) which having been prepared, packed or kept under insanitary conditions, has been contaminated or become injuries to health.
Under section 6 of the Ordinance sale or manufacture for sale of food which is adulterated is prohibited in the following words:-- "(1) No person shall, directly or indirectly himself or by any other person, prepare, manufacture, keep or store for sale, or sell or offer to sell any food--
(a) which is adulterated;
(b) which is misbranded;
(c) which is not of the nature, substance or quality demanded, or which it purports or is represented to be;
(d) for the sale of which a licence is required otherwise than in accordance with the conditions of the licence;
(e) in contravention of any other provision of this Ordinance or the rules."
In the light of the above-stated provisions of law, the affiliated Flour Mills with the petitioner Association shall assure that wheat put for milling process shall not contain moisture of more than 12%. Even if the wheat brought through Sea port or from climate causing more moisturing the wheat the same shall be put to dry by natural or mechanical process to reduce the moisture contents to the maximum of 12%. It shall be presumed that the said limit of moisture contained has been fixed by Experts in the subject. Keeping in view all the situations, climate, atmosphere and safety of public health on basis of attached documents a different opinion cannot be formed. By not observing the fixed moisture contained limit of 12% shall cause the flour adulterated and prohibited by law.
4. The petitioner in his own appended letter Annexure 'H' dated 2-7-1996 stated that wheat being imported by N.-W.F.P. Food Department is normally of No,2 quality white soft and the certificates appended as G/1 to G/5 showing 14.2/14.3% moisture contents are of No,2 quality. We are afraid that on the basis of these documents the relief claimed in the instant writ petition could not be granted most particularly involving an item in the use of general public and affecting public health.
5. As regards second contention of the learned counsel for the petitioner,suffice it to say that punishment under section 8/23 of the Pure Food Ordinance, 1960 and suspension of quota of wheat for a specified period under the Flour Mills (Control) Order, 1959 does not amount to double punishment within the purview of Article 13 of the Constitution. Even otherwise, the food mills owners affiliated with the petitioner Association do enter into certain undertaking/agreement to abide by the rules/orders relating to preparation and sale of ata and violation of the same calls for an action like seizure of wheat/ata, suspension of permit/supply of wheat quota for certain period apart from penal action against the owner or his agent and in writ jurisdiction contractual obligation cannot be enquired into.
6. For the foregoing reasons, this writ petition is dismissed in limine.