This is a revision petition against the judgment of learned Additional Sessions Judge, Karachi dismissing the appeal filed against the conviction of the petitioner under section 6 (b) read with section 23, West Pakistan Prevention of Food Order, 1960 by A. C. M., K. M. C., Karachi. The petitioner was sentenced to undergo R. I. For 6 months and pay a fine of Rs. 1,000, or in default to undergo R. I.
For six weeks.
2. On 3-2-1964, Mr. Wiqar Ahmad, Food Inspector of the K. M. C. Went to a sweatmeat shop where the petitioner Ahsan Hafiz Kamal was present and selling the sweatmeats. The Food Inspector- purchased Habshi Halva, Baloshahi and Namak--para, each half a seer, as samples for the` purpose of analysis and paid Rs. 5.23 as price. The petitioner had declared that these Articles had been prepared from pure Cow and Buffalo mixed ghee. Then the samples were divided into three parts which were du:y sealed and labelled. The required form was also prepared and it was signed by the Inspector as well as the petitioner. One part of each sample was delivered- to the petitioner while the remaining parts were taken away by the Inspector. One such part from each sample was sent to the chemical analyser who,-on analysis found the samples of Baloshahi and Namakpara below the standard ghee. On the receipt of this report a complaint was filed by Mr. M. A. Rab, Additional Health Officer against the present petitioner and Muhammad Zamir.
3. At the trial Mr. Wiqar Ahmad Inspector and Mr. Shakiluddin who had examined the samples were examined. The petitioner in his statement recorded under section 342; Cr. P. C. Admitted that the sweatmeat shop belonged to him and the samples of the articles were collected from him by the Inspector. But he pleaded that the declaration form was written in English which he did not know and its translation in Urdu was not read over to him. He further stated that the co-accused Muhammad H Zamir had nothing to do with his shop. He, however, admitted that there were sign boards affixed on his shop that the preparations were made from the Cow ghee. The other accused completely disassociated himself from the shop. The petitioner examined Mr. Muhammad Shamsuzuha, Professor, Karachi University.
4. The learned Magistrate on the assessment of the evidence found the petitioner as well as co- accused guilty of the offence and, therefore, convicted and sentenced them. An appeal was filed.
The co-accused was acquitted while the conviction and sentence against the appellant was maintained and his appeal was dismissed.
5. In appeal before the learned Additional Sessions Judge a point was taken regarding the absence of labelling in the form and this plea on the authority in the case of Alif Gul v. State (PLD 1964 Pesh.
45) was accepted. But the authority was distinguished on the ground that although the samples were not labelled but the petitioner when he was dissatisfied with the analysis of the samples sent A by the Food Inspector, himself moved the Court to send the samples which were delivered to him by the Inspector and consequently those samples were also sent and on analysis the same result was found.
6. This point was also raised before me and it was strongly urged that in view of the aforesaid authority the absence of label on the samples violated the mandatory provisions of section 20 of West Pakistan Pure Food Ordinance and it vitiated the trial, with all respects I am in agreement with the view taken by his Lordship but the present case as observed by the learned Addi--tional Sessions Judge is distinguishable. His Lordship while dealing with the absence of any mark or label on the samples observed that the provision was mandatory for the short and sensible reason that in the absence of any "mark" or "label" the judicial conscience of the Court would be left unsatisfied in the absence of sufficient certainty to regard it was "proved" that any particular specimen taken from a particular individual sent to the analyst and found by him to be deficient in some respect was in fact the very specimen alleged to have been taken or seized from that individual. Thus this being the object the original non-com--pliance with the provision of section 20 was met with by the fact that the petitioner himself volunteered to send the samples left in his possession to the analyst through Court. So the e question of uncertainty did not remain any longer. Even those samples were found deficient and below the standard of Cow and Buffalo mixed ghee laid down by the Karachi Food Rules, 1958 which were enforced to Karachi with effect from 10th October 1958, vide Notification dated 10th October 1958, issued by the Chief Commissioner of Karachi and published in the Extra--ordinary Issue of the Gazette of Karachi. These rules held the field till the promulgation of West Pakistan Pure Food Rules, 1965 by the Government of West Pakistan, Health Department Notification dated 21-8-1965.
7. Apart from this, I am not satisfied with the conclusion reached by the learned Additional Sessions Judge with regard to the labelling of the samples. Indeed the form showed the K. Word `nil' against labelling but the Inspector who had secured the samples and-was examined in Court stated in his evidence that he had sealed and labelled the samples separately in presence of the petitioner. In this he found corroboration from the evidence of Mr. Shakiluddin Public Analyst who had examined the samples. The samples bore the mark A-11 and A-12. Thus it appears that through over-sight the Inspector did not mention these marks in the form.
8. The learned counsel for the petitioner further urged that the complaint was not made by a properly authorised person, therefore, the trial was vitiated on that account. There is no force in this contention. Section 32 of the Ordinance provides that the cognizance can be taken on a complaint made by a Health Officer of a local authority. In the present case the complaint was made by the Additional Health Officer and, therefore, this Officer is covered by this section. Another argu--ment which was advanced was that on account of the heating of the geee the change in the specification was likely to occur and, therefore, it could not be said that the ghee taken out from the articles was below the standard. For this the learned counsel placed reliance upon the observation made in the indian Journal on Medical Research, Volume 30 of 19517 commencing from page 235. The ghee was heated and the result was shown in the tables included in the article.
In summarising it was stated that:- "On heating, physical and chemical contents of ghee (butter--fat) undergo, certain changes, the extent of which depends on the temperature to which ghee is heated and also the time for which it is heated. B. R. Value is increased by heating while Reichert, Polenske, etc., are decreased."
It was also stated in this Article that in India sweatmeats are usually prepared by frying in ghee which was to .Be kept at a temperature of about 250-- C. In that case buffalo ghee was tested as according to the authors this was the ghee which was commonly used in India.
9. In view of this there may be no doubt that some changes are likely to occur on account of heating but looking to the table embodied in the article and the result of the analysis in the present case the heating to produce the result must be for about 2 hours. In the present case there is no evidence to show that while preparing the articles of which the samples were taken the ghee was heated for that period. In my view ordi--narily the process to prepare those articles would take much shorter time. Unfortunately no question was put to Mr. Shakiluddin in this behalf, therefore, no opportunity was furnished to the prosecution to clarify the position.
10. The grievance was also made that the evidence of A Mr. Shamsuzuha, defence witness was not dealt with by the learned Additional Sessions Judge. I have gone through this evidence and it does not in any way improve the cage of the petitioner. It is a vague and general sort of evidence and he had not examined the samples, subject-matter of the present case. He stated that according to his experience the results of the analysis vary when the foodstuffs are fried or given over heating, and there is no standard fixed by the Government for coked material and therefore, the standard worked out for cooked material on the basis of raw material could not be considered valid according to the scientific knowledge. He further stated that oil and fats composed of various fatty acids which varied from products to products and animal to animal which also depended on various kinds of feeds and breeds. In the cross-- examination he had to admit that he did not remember the various methods for arriving at the correct R. W. Values. This evidence of the witness does not take us any far and was rightly ignored by the learned lower Court.
11. Lastly it was urged that no standard for sweatmeats was fixed by the rules and, therefore, the prosecution could not be launched against the petitioner. In this reliance was placed upon, the two authorities of Madras High Court reported in AIR 1938 Mad. 541 and AIR 1931 Mad. 375. The prosecution in both the cases was under section 5(1) (d) which reads as under :- "Sells milk, cream, butter, ghee or cheese which is not up to the standard of purity prescribed by the Governor-in---Council."
12. In the first authority it was held that a secretary and an accountant of a co-operative society supplying butter to the Sanitary Inspector under section 14 could not be convicted under section 5(1) (d) and rules 24, 28 and 29 framed under sec--tion 20(2) as supply of samples to the Sanitary Inspector under section 14 was not a sale nor could the secretary or the accoun--tant be said to offer the butter for sale. In the second case sweatmeat by name khajoor was sold and it was held that a person could not he convicted for breach of adulteration law when there was no law or rule having force of law prescribing particular composition for the article that is exposed for sale and no such standard was laid down by the Government.
13. Both these authorities are inapplicable for the simple reason that in the present case the prosecution is under, sec--tion 6(I) (c) which reads as under:- "No person shall, directly or indirectly, himself or by any person, prepare, manufacture, keep or store for sale, or offer to sell any food which is not of the nature, substance or quality demanded, or which it purports or is represented to be."
14. The evidence shows that not only the petitioner declared that the articles were prepared from pure Cow-Buffalo mixed ghee but similar sign boards were also hanging on the shop. It is a declaration which brings the case within the mischief o the above provision of law. The question of fixing the standard by the Government, therefore, does not arise. The petitioner was not prosecuted for selling the articles below the standard which may have been prescribed or not by the Government but for the declaration which he had made. He was prohibited by law to make false declaration and sell the articles which were not of the nature, substance or quality demanded or Which did not purport or represented to be. The articles were pre--tended to have been prepared by pure cow and buffalo mixed ghee and on analysis the deficiency was found and it did not conform to the standard laid down by the rule 5(b) (iii) of the Karachi Food Rules, 1958. It has not been contended that the supply of samples to the Inspector of Food did not amount to sale for the obvious reason. In this connection explanation to section 18 of the Ordinance may be referred to and it reads; "the purchase or sale of sample of any food for the purpose of analysis under this Ordinance shall be deemed to be a purchase or sale for human consumption or use".
15. In the result the conviction of the petitioner for offence under section 6(I) (c) is maintained. So far the sentence is concerned I am inclined to take a lenient view in view of the period which has lapsed since the institution of the prosecution. The case was originally instituted on a complaint in February 1964 and, therefore, more than 5 years have lapsed. The petitioner has undergone an ordeal for all this long period. I, therefore, reduce the sentence of imprisonment already under-- and maintain the sentence of fine and the imprisonment in default. With the modification the, appeal is dismissed. The fine be recovered if not already pate.