2007 PLP 1675 (MLD)

TALAAT QAYUM QURESHI, J.

Through quashment petition in hand the order passed by the learned Special Magistrate Peshawar, dated 27-3-2007 and F.I.R. No. 125, dated 26-3-2007 registered under sections 11/23 Food Stuff Control Act, 1958 at Police Station Daud Zai Peshawar had been sought to be quashed.

2. Mr. Niaz Ali Khan, Advocate the learned counsel for the petitioner argued that the local police has no lawful authority to seize/detain the Tins of Ghee which were being transported by the petitioner for sale in the Market as a full mechanism has been given in the Pure Food Ordinance, 1960 and it is only the Health Officer of the local authority or an Inspector authorized in this behalf by a general or special order of the Director of Government, who can file complaint before the competent Court.

3. It was also argued that under section 3 of the Food Stuff (Control) Act, 1958, Foodstuffs had been defined in section 2, whereas powers to control supply, distribution etc. of the foodstuffs had been given in section 3 and Ghee has not been included in the foodstuffs, therefore, was not notified by the Government and the petitioner was under no obligation to show document of ownership with regard to the Ghee he was transporting within the country.

4. On the other hand Mr. Nizar Muhammad the learned DAG representing the State argued that the investigation of the case is yet to be completed, therefore, this Court under section 561-A, Cr.P.C. cannot quash the F.I.R. Reliance in his regard was placed on 1196 SCMR 186.

5. It was also argued 'that under section 11 of the Pure Food Ordinance, 1960 licenses for manufacturing, storage and sale of goods was to be produced, which the petitioner could not produce to the police officials, hence F.I.R., against him was rightly registered.

6. I have heard he learned counsel for the parties and perused the available record.

7. The argument of the learned counsel for the petitioner that the .complaint was to be filed by an authorized officer mentioned in section 32 of the Pure Food Ordinance, 1960 has a force in it. Pure Food Ordinance was promulgated on 11-3-1960 to consolidate and amend the laws relating to the preparation of the sale of Foods. A full mechanism was provided in the said Ordinance for preparation, of sale or manufacture for sale of goods which is adulterated or misbranded or not of the nature, substance or quality demanded.

8. Under section 11 of the ibid Ordinance no place was to be used for preparation, or the manufacturing process, blending, preserving, refrigerating, canning or bottling of any food for the business of a wholesale dealer in vanaspati, charbi, ghee, margarine fish' oil, mustard oil, cotton-seed on or other edible oils and such other foods as may be . prescribed.

9. Under section 15 of the ibid Ordinance it was the function of the Local Authority to carry into execution and enforce the provisions of this Ordinance within its jurisdiction with a view, that all articles of food and drink are sold in a pure and genuine state. For the said purpose the Inspectors were to be appointed by the Government and Health Officer as well as Officers authorized in this behalf were given the powers as mentioned in section 17, he authorized Inspector could purchase sample and method of taking sample was given in section

20. After taking the A samples, one sample was to be sent to the public analyst and after receiving the expert report if the foodstuff was found in contravention of the provisions of the Pure Food Ordinance, 1960, then under section 32 of the Ibid Ordinance it was only the Health Officer of a Local Authority or an Inspector authorized in this behalf by way of general or special order of the Director or Government, could file complaint, no Court was to take cognizance of any offence: punishable under this Ordinance except on the report in writing of the facts constituting such offence made by the above mentioned officials, after trial by the competent Court, a person could be penalized for violation of any of the provisions of Ordinance and the punishments were provided under section 23 of the ibid Ordinance.

10. It is thus clear that except the above mentioned officials, none else could file a complaint or register a case and if at all any proceedings against any person was to be initiated under the Pure Food Ordinance, 1960, then the same could be done after receipt of the adverse report of he pubic analyst and not before.

11. In the case in hand there is no allegation in the F.I.R. that the Ghee which was being transported through Datsun RIN No. 7108 from Shabqadar towards Peshawar was of foreign origin or was adulterated or misbranded.

12. The only allegation against the petitioner is that the Datsun Driver could not show the document of ownership. It is a matter of common knowledge that businessmen/shopkeepers/manufacturers usually hand over their commodities to the Drivers for onward delivery to the sale points and if the Driver was not in possession of any document of ownership of the seized Ghee, it could not be presumed that he had committed any offence. Since the case was registered by unauthorized officer. and that too without having report of analysis that detained/seized Ghee was adulterated or misbranded, I, therefore, allow the petition in hand, quash the F.I.R. No. 125, dated 26-3-2007 as well as the order, dated 23-3-2007 passed by the learned Judicial Magistrate Peshawar and direct the respondent No.2, present in Court, to hand over the seized/detained Ghee Tins as well as Datsun to the petitioner. M.H./155/P Proceedings quashed.