1989 P Cr (PLP)

This is a revision petition tiled by the petitioner against his conviction and sentence passed by Special Magistrate Zone II, Metropolitan Corporation, Lahore on 30th August, 1988 whereby he was sentenced to three months' R.I. and also to pay fine of Rs.1,000 plus Rs.30 in default of payment of fine he was to undergo one month's R.I. The petitioner challenged this order in an appeal and the learned Additional Sessions Judge, Lahore vide his order, dated 20th December, 1988 dismissed his appeal and upheld his conviction.

2. The facts necessary for the disposal of this petition are that a Food inspector who was duly authorised under West Pakistan Pure Food Ordinance, 1960 collected three separate samples of Milk Cone Ice‑Cream from' the petitioner in accordance with law. One of the samples was handed back to the petitioner while the other two samples were kept by the Food Inspector for sending the same to the Public Analyst for examination. The Food Inspector also obtained a declaration of the petitioner in Form No.9 read with Rules 45 of the Pure Food Rules 1965 which in detail establishes the authenticity of the sample taken from the petitioner. After the receipt of report from the Public Analyst which showed that the sample taken from the petitioner was deficient in milk fat to the extent of about 98% the challan was submitted before the Court of Special Magistrate Zone‑II, Metropolitan Corporation Lahore. When the petitioner was examined under section 242, Cr.P.C. by the Special Magistrate, he pleaded guilty and declined to offer any evidence in his defence. The learned Special Magistrate taking into consideration the voluntary confession of the petitioner as also the report of Public Analyst convicted him and sentenced him to three months' R.I. With fine of Rs.1,000 plus Rs.30. The petitioner after being unsuccessful before the leaned Additional Sessions Judge, Lahore has approached this Court by filing the present revision petition. He challenged his conviction on the ground that the provisions of section 242, Cr.P.C. have been violated. He has further argued that the provisions of section 262(2), Cr.P.C. have also been violated as the learned Special Magistrate added fine alongwith sentence of imprisonment. According to the learned counsel the Magistrate was only competent under section 262(2), Cr.P.C. to impose sentence of three months' imprisonment and was not competent to impose fine. Therefore, since the learned Special Magistrate has also alongwith sentence of imprisonment imposed fine, this according to the learned counsel for the petitioner has rendered the whole judgment a nullity. He has further argued that Rule 39 of the Pure Food Rules requires presence of two respectable persons at the time of taking of samples which too have been violated in this case. The violation, according to him, of mandatory provision has also made the conviction illegal.

3. The first argument that section 242, Cr.P.C. has been violated is without any force. This point was specifically dealt with by 1st appellate Court. The petitioner has specifically pleaded guilty to the charge put to him under section 242, Cr.P.C. His plea of being guilty was in line with the prosecution evidence which showed that the sample taken from him was found deficient by 98% in milk fat by the Public Analyst. The petitioner was fully aware of the plea which he took before the learned Special Magistrate. He has not denied the execution of Form No.9 which fully establishes that the aforesaid report is based upon a sample taken from him. The learned Special Magistrate after his plea of being guilty took all the facts of the case into consideration and convicted him. This being the position the learned counsel in the circumstances fails to point out in what manner section 242, Cr.P.C. has been violated.

4. As regards his other plea that the sentence of fine could not have been imposed under section 262(2), Cr.P.C. it is pertinent to mention over here that the petitioner was tried for violation of Food Laws which sentence is provided by section 23 of the Pure Food Ordinance of 19(4) which reads as under:‑

23. Penalties.‑‑ (1) Whoever contravenes any of the provisions of sections 3, 4, 5, 6, 7, 8, 9, 10, 11 to 13 shall be punished: (a) for a first offence with rigorous imprisonment for a term which may extend to one year and with fine ranging from one hundred rupees to two thousand rupees."

5. The aforesaid section specifically provides the sentence of imprisonment as well as fine. Since the petitioner pleaded guilty and was summarily tried, the learned Special Magistrate exercised his powers under section 262(2), Cr.P.C. which provides, that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. This section does ‑not prohibit the Magistrate to impose fine which he is otherwise competent to do alongwith sentence of imprisonment. Section 32 of the Cr.P.C. also empowers the Magistrate to pass any lawful sentence combining any of the sentences which he is authorised under the law to pass. In this case since the accused was tried for the violation of Food Laws and section 23 thereof empowers the trial Court to impose fine ranging from Rs.100 to Rs.2,000 for the first offence, therefore, the Magistrate was competent to impose the sentence on fine alongwith sentence of imprisonment.

6. This being the position, I am of the view that no illegality has been committed by the trial Magistrate by, imposing fine alongwith sentence of three months' imprisonment.

7. Lastly the learned counsel has argued that the presence of two respectables is a mandatory requirement under Rule 39 of the Pure Food Rules, 1965 and the violation thereof has rendered the conviction illegal. Rule 39 provides as under:‑

"Procedure of seizure of unsound food.‑‑ (1) If in any market, godown, shop, stall or other place used for the sale of any food intended for human consumption or for the preparation, manufacture or storage or any such food for purpose of trade or sale, an Inspector finds any article of food which in his opinion is or appears to be injurious to health or is decayed, putrefied, he shall, in the presence of two respectable persons and if practicable, of the owner of the article or his agent or of the occupant of the premises forthwith cause the article to be seized and taken into his custody."

8. In this case samples were taken from the petitioner who is owner himself. He had signed the declaration Form 9 which establishes the authenticity of the samples so taken. The petitioner has not denied the execution of declaration Form. On the contrary he has admitted his guilt before the Special Magistrate.

9. Learned counsel for the petitioner has relied upon two precedents, namely Muhammad Anwar v. The State 1977 P Cr. L J 82 and Additional Advocate‑General, West Pakistan and another v. Rajab and others P L D 1967 n Kar. 277 in support of his contention' that the presence of two respectables is mandatory and violation thereof has rendered the conviction illegal.

10. The aforesaid two authorities are not applicable to the facts and circumstances of the present case. The facts of those two cases are completely different from the case in hand. In the aforesaid judgment the very existence of samples was disowned as also their identity.

11. Here in this case the samples were taken from the petitioner who is owner himself and has signed declaration Form 9 to that effect. Presence of two respectables would not be necessary when the owner himself is the witness to the samples and is not denying the same. This being the position the aforesaid two judgments would not be applicable in this case.

12. Keeping the facts and circumstances of this case in mind it is established on record that the sample was taken from the petitioner, which was found deficient by Public Analyst to the extent of 98% in milk fat and keeping also into consideration his plea of guilt, no exception can be taken to the judgments passed by the Courts below. The revision petition is dismissed in limine. It appears that the petitioner was on bail. His bail bond is cancelled. I direct the District Magistrate to effect the arrest of the petitioner and send him to jail to serve out the remaining part of his sentence. H.B.T./M‑1200/L Revision petition dismissed.