2018 PLP 25 (YLRN)

MUDASSIR KHALID ABBASI, J.

Through this writ petition, orders dated 30.6.2008 and 10.6.2009 passed by respondents Nos.2 and 3, respectively have been challenged.

2. Factual background of this case is that on 24.6.2008 Vehicle No.KTS-337 was intercepted by the officials of the Food Department Punjab in the area of Sakhi Sarwar, Multan. 100-bags of flour and 205 bags of cornstarch were loaded on the said vehicle whereas the permit/permission produced was only to the extent of 205-bags of cornstarch whereas the remaining 100-bags of flour were transported without any permission/permit. Upon the complaint by the Food Department, FIR No.105/2008 under sections 3 and 4 of the Foodstuffs (Control) Act, 1958 was registered against the petitioner and 100-bags of flour were taken into possession. Report under section 173, Cr.P.C. was submitted and copies under section 161, Cr.P.C. were provided to the accused. Accused admitted the charge and was accordingly convicted by respondent No.3, through imposing of fine of Rs.2000/- and in case of non-payment of fine undergo 15-days S.I. 100-bags of flour were confiscated. Petitioner filed a revision petition against the said order which was dismissed on 10.6.2009. Feeling aggrieved present petition has been filed.

3. Learned counsel for petitioner argued that provisions of Criminal Procedure Code were not adhered while recording the confessional statement of petitioner, which is a mandatory provision of law, therefore, the entire proceedings have become unlawful and void. Further states that requirements of sections 3 and 4 of the Foodstuffs Control Act, 1958 do not attract the case of petitioner. Contends that revisional court below has miserably failed to appreciate the contentions raised by the petitioner. Moreover, Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees the freedom of trade and business and this fundamental right of petitioner has been infringed. Reliance is placed on 2007 MLD 1994.

4. On the other hand learned AAG has vehemently opposed this petition contending that conviction of petitioner is based on confessional statement, therefore, orders passed by the learned courts below are in accordance with law. No jurisdictional defect has been pointed out by the other side therefore, this petition is liable to be dismissed. 5. 1 have given my conscious thought to the arguments advanced by the learned counsel for the parties and has gone through the record/impugned orders.

6. Petitioner has primarily challenged the impugned orders on the ground that while recording confessional statement of the petitioner, procedural requirements were not followed. Judgment referred by learned counsel for petitioner deals with violation of procedure under section 265-C, Cr.P.C., while recording the confessional statement is not curable but at the same time it has been held that the convict may challenge the same through filing of appeal under section 412, Cr.P.C. This observation relates to the maintainability of appeal under section 412, Cr.P.C. against conviction made on the basis of confessional statement whereas in this particular case petitioner has never challenged conviction through filing of an appeal.

7. Another argument urged by the counsel for petitioner is that while imposing fine, respondent No.3 has acted in a summary manner, this in my view is not correct because the impugned order was passed by respondent No.3 on the basis of confession made by the petitioner. Moreover, non-compliance of the provisions if any as pointed out by learned counsel for petitioner would not in any case prejudice the case of the petitioner.

8. So far as the constitutional guarantee with regard to the freedom of trade and business is concerned it is always subject to certain conditions/qualifications. Moreover, licensing and regulation of trade has also been provided in the relevant constitutional provision which reads as under:- "Article

18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent-- (a) the regulation of any trade or profession by a licensing system; or

(b)

(c)

8. Preamble of the Foodstuffs (Control) Act, 1958 un-ambiguously envisages as under:- "Preamble.

Whereas it is expedient in the public interest to provide for the continuance of powers to control the supply, distribution and movement of and trade and commerce in, foodstuffs in, all the Provinces. It is hereby enacted as follows:-"

3. Powers to control supply, distribution, etc., of foodstuffs.--(1) The Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuff or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for regulating or prohibiting the keeping, storage, movement, transport, supply distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by subsection (1) an order made thereunder may provide:- (c) for regulating by licences, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff; (f) for regulating or prohibiting any class of commercial or financial transactions relating to any foodstuff which, in the opinion of the authority making the order is, or is likely to be, detrimental to public interest;

6. Penalties.

(1) If any person contravenes any order made under section 3, he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both and, if the order so provides, any [Court or Tribunal] trying such contravention shall direct that any property in respect of which the [Court or Tribunal] is satisfied that the order has been contravened shall be forfeited to the Government, unless for reasons to be recorded in writing, it is of the opinion that the direction should not be made in respect of the whole, or as the case may be, a part of the property. (2) The owner. of any vessel, conveyance or animal carrying any property in respect of which an order under section 3 is contravened, shall, if the carrying is part of the transaction involving the contravention and if he knew or had reason to believe that the contravention was being committed, be deemed to have contravened the order, and, in addition to the punishment to which he is liable under subsection (1), the vessel, conveyance, or animal shall when the order provides for forfeiture of the property in respect of which the order is contravened, be forfeited to the Government.

9. Keeping in view the above provisions of law and facts of the case, I find no reason to interfere in the impugned orders passed by the learned courts below. This petition does not succeed and is dismissed. JK/R-12/L Petition dismissed.