' The applicant by this revision has challenged his conviction under section 23 read with section 5- A of the West-Pakistan Pare Food Ordinance, (VII of 1960) which was upheld in appeal by the V Additional Sessions Judge, Karachi.
2. The applicant owned a Ration Shop No, 844 at Jamshed Road, Karachi, where he sold "atta"
(flour) of "Desi" wheat which was meant for human consumption. On 27th May, 1971, P. W. Atiq Ahmad, Food Inspector purchased this atta and divided the same into three equal portions and put each portion in a separate polythene bag which was sealed and labelled. Each polythene bag was again put into a separate cloth bag which was also sealed and labelled. All this was done in the presence of Mashirs and the applicant who was also present. The applicant himself signed each label pasted to the polythene bag and the cloth bag. These were all the formalities which were required to be performed by the Inspector under the law. He thereafter sent the samples for examination to the Public Analyst who examined the same and gave his report that it was unfit for human consumption. The applicant was therefore, prosecuted and ultimately convicted by the Additional City Magistrate, Karachi Municipal Corporation, Karachi, for the aforesaid offence and sentenced to undergo one year rigorous imprisonment and also to pay a fine of Rs, 1,000.
3. Mr. M. A. Kazi, learned counsel appearing for the applicant has contended that the Food Inspector who visited the shop of the applicant and secured the samples of the atta had violated the procedure laid down under rule 45 (1) (b) of the West Pakistan Pure Food Rules of 1965 and had thereby committed an illegality which bad resulted in prejudicing the case of the applicant and therefore his conviction and the sentence passed against him are liable to be set aside. Rule 45 (1)
(b) reads as under "45. Packing of samples of food for analysis.
(1) Samples of food for the purposes of analysis shall-
(a) ..........
(b) in the case of other foods and in the case of pre packed foods in large containers, be placed in clean dry bottles or jars which shall be closed sufficiently tight to prevent leakage or evaporation of moisture."
' According to him, since the Food Inspector had admittedly packed the atta in polythene bags and not in the dry bottles or jars as required under the above rule, he had obviously violated the provision which was mandatory In nature on account of the use of the words "shall'. To support his contention he relied upon the case of Mohammad Shah v. The State (1) in which case the quantity of tea sent to the public analyst was less than 4 oz. And therefore was in violation of rule 46 of these Rules and the public analyst had stated that the tea leaves were not of the nature, substance or the quality as required, being below standard and that it was adulterated stuff, containing a fair percentage of ash. The High Court held, "It is not possible to get over a basic defect in the analysis made by the public analyser in this case as it has been done in contravention of a rule which vitiates the analysis and the resulting opinion of the analyser."
' The basic question, therefore, that requires consideration, is whether the requirement of rule 45 (1)
(h) is of such a nature as could be considered mandatory on account of the use of the word "shall" used therein. Mr. Kazi has not been able to point out anything from the record that the fact of the packing in polythene bags instead of bottles or jars has in itself resulted in affecting the analysis of the atta or the opinion of the analyst. On this aspect of the case his argument was based on conjecture. The use of bottles or jars would, in his opinion, prevent the material contained from being dried up ; but on his own showing the analyst had found the degree of moisture in this case to be higher than that laid down under the law. He pointed out that the Mashir had admitted that the atta did not smell at the time of packing of the samples, which would show that the atta was not in the same condition when the analyst actually examined it, admittedly, the analyst examined the samples after about a month or so.
' The purpose of packing the samples of foods in clean dry bottles or jars as described in the rule itself is to prevent leakage or evaporation of moisture. The rule appears, therefore, to be directory and not mandatory in nature as the learned counsel for the applicant contended. If the ultimate object, described above, could be achieved, it would not be necessary to restrict the packings to bottles or jars. It is possible that such containers may not be available, at that time or if available might be comparatively more costly than other containers. If the same purpose could be served by use of polythene bags, there seems to be no reason why such bags could not be used by the Food Inspector. In any case nothing has been pointed out from the record to show that the use of the polythene bags in this came resulted in frustrating the purpose which is described in the rule. The case reported in PLD 1966 Pesh. 184 seems to be on a different footings altogether. The rules require a specific quantity of material to be sent to the analyst. Obviously this was to ensure the correctness of the result obtained by the analyst. That purpose could not be achieved if a lesser quantity of the material was sent to the analyst. The opinion of the analyst based on a lesser quantity of material was, therefore, held not to be acceptable. The case is thus distinguishable from that of the applicant.
' The applicant had the legal opportunity of calling the analyst in Court which he did not avail of the would have been the proper witness to give the opinion whether the use of a polythene bag would in any manner affect the material contained therein, so as to show that packing in glass bottles or jars was indispensable.
4. There is one more consideration which would also lead to the conclusion that the use of polythene bags for packing such material as atta, etc., would not be in violation of the above- quoted rule; and that is based on the meaning of the terms "bottle" and "jar". "Bottle' is defined as {{FOOT NOTE}}
(1) PLD 1966 Pesb. 184 {{FOOT NOTE}} "narrow-necked vessel for liquid" while a "jar" means a "wide mouthed vessel". A "vessel" in this context is understood to mean "an article designed to serve as a receptacle." Thus the distinction between a "bottle" and a "jar" is based not on the material with which these containers are made.
Just as glass or mud, etc., but on their respective utility. A "bottle" is meant for containing essentially a liquid but not so a "jar". The arguments of the learned counsel for the applicant were expressly on an understanding of these terms which had reference to the material out of which they were manufactured and not the utility thereof. Considering the dictionary meaning of the two terms there is no reason why a polythene bag should not be considered to be included within the meaning of a "jar", especially when it was utilised for packing atta, a dry material.
5. In absence of anything to show how the applicant's case bas, in fact, been affected adversely or that the use of anything else than glass bottles or earthen jars would materially affect the analysis to be done by the public analyst, it is not possible to hold that the rule had in this case been violated. This application has no merit and is dismissed as such.