P L D 1976 Lahore 720 (PLP)

This is a revision against the judgment and order, dated 23‑10‑1975, passed by Mr. M. Javid lqbal Cheema, Additional Sessions Judge, Gujrat, who dismissed the appeal of the petitioner and maintained his conviction and sentence passed by Mr. Wahid‑ud‑Din, Magistrate with section 30 powers,. Gujrat, on 28‑8‑1975 (in Case No. 521/3/1975).

2. According to the prosecution Dr. M. A. Nayyar P. W., who was then District Health Officer, Gujrat, seized a total quantity of 12.02 ounces. of milk from the petitioner out of the quantity of 5 seers in a container carried by him, on 21‑6‑1975. Thereafter, he added formaline in the sample and divided it into three equal parts, each of four ounces. One part of the sealed sample containing four ounces of milk was sent to the Public Analyst according to whose report (Exh. PB) the milk was not of the standard quality as it contained less quantity of fat and also contained 19 of water. Consequently, the petitioner was challaned for trial in Court.

3. At the trial the prosecution examined only Dr. M. A. Nayyar P. W. who deposed that he drew total quantity of 12 ounces of milk out of five seers of milk carried by the petitioner in a container and after dividing it into three parts each he sent one part to the Public Analyst whose report. (Exh. PB) showed that the milk was not of the standard quality because it was adulterated with excessive water to the extent of 19 per cent. The petitioner admitted that sample was drawn from him but denied that it was adulterated. No other evidence was led by either party. The learned," trial Magistrate convicted the petitioner under section 23 (1) (a) of the West Pakistan Pure Food Ordinance for adulteration and since this was. a second offence be awarded the petitioner a sentence of rigorous imprisonment for two months and also to pay a fine of Rs. 400 or in default of its payment to further undergo simple imprisonment for one month. The petitioner was also ordered to pay Rs. 30 as fee of the Public Analyst. That judgment and order, dated 28‑8‑1975, of the learned trial Magistrate was challenged in appeal but the learned Additional Sessions Judge dismissed it on, 23‑10‑1975.

4. The learned counsel for the petitioner argued that specified quantity of sample was not drawn in the case in hand due to which the proceedings against the petitioner were vitiated in law.

5. The argument of the learned counsel has force. Section 20 of the West Pakistan Pure Food Ordinance, 1960, as amended up‑to‑date, provides for drawing of sample in three parts after some food has been procured or seized. Section 37 (2) (c) of that Ordinance authorised the framing of relevant Rules. Rule 46 of the West Pakistan Pure Food Rules, 1965, framed under the aforementioned Ordinance provides that the quantity of sample to be supplied for analysis to the Public Analyst in the case of milk shall not be less than 8 ounces. It was held in the case of Muhammad Shah v. State (1) that if the specified quantity of sample was not sent to the Public Anaylst in violation of the statutory rules, his analysis of that sample was not in accordance with law and the resulting opinion obviously suffered from a defect due to which his certificate could not be accepted as conclusive proof of the petitioner's guilt. The admitted position of the case in hand according to the evidence on record is that a quantity of four ounces only was sent as sample for analysis to the Public Analyst on the basis of which report (Exh. PB) was obtained on which the conviction was based. There is no other evidence to the contrary. It is not the case of the prosecution that the quantity of sample sent to the Public Analyst was more than four ounces. Even according to the deposition of Dr. M. A. Nayyar P. W. the quantity of sample sent to the Public Analyst was four ounces and was not more than that. The challan filed in Court also shows the same figure. On the evidence on record, I am of the view that the conviction of the petitioner is not sustainable in law.

5. As a result of above discussion, the petition for revision is accepted the conviction and sentences passed against the petitioner are set aside and he is acquitted. He shall be set at liberty forthwith if not required in any other case. He shall not pay the Public Analyst fee of Rs. 30 as ordered by the learned trial Magistrate. s. Q. ?????????????????????????????????????????????????????????????????????????????? Petition accepted.