P L D 1954 Lahore 317 (PLP)

Schedule Serial No. Article of food. Description. Excess in the Deficiency in constituents Deficiency in the constituents. Remarks.

1. Ghee . The clarified fat derived from the milk of cows or buffaloes. More than 2'8 percent. of free fatty acid (oleic acid) or polenske value more than 2 5 or both. Butyro‑refractive value of not less than 40 and not more than 43 5 at 40‑C or a Reichert Wollny value not less than 28 or both. Whenever an Analyst finds a sample falls within the Butyro -Refractive value of not less than 40 and not more than 42 5 at 40‑C and the Reichert Wollny value of not less than 24, further evidence about the purity or otherwise of the samples is not needed excepting that the Polenske value has to be done. But where the samples are found to fall within the Butyro-Refractive value of not less than 40 and not more than 43'5 at 40‑C and Reichert Wollny value of not less than 28 or both the Analyst must cond uct the Phytoisteryl Aceytate test to come to a decision about the purity of the sample. In the present case the certificate of the Public Analyst showed that the Polenske value was 3'

0. In column 4 of the schedule given above the maximum Polenske value prescribed is 2

5. The Polenske value of the ghee which is subject‑matter of this dispute being more than 2'5, it is obvious the: the article would be adulterated if the certificate be correct. Two contentions were put forward on behalf of the petitioner. The first was that as the certificate, which was the basis of con viction, did not conform to section 11 (2) of the Act it could not be legal evidence. It may be stated that the Public Analyst himself had not been examined by the trial Court. Section 11 (5), however, makes the certificate itself evidence without proof. It runs as under:‑ 11. (5) Any document purporting to be a certificate under the hand of a Public Analyst may be used as evidence of the facts therein stated in any enquiry, trial or other proceedings under this Act. Subsection (2) of section 11 provides that the certificate given by the Public Analyst must contain a declaration that he has followed the prescribed method in his analysis. This declaration was wanting in the certificate which is the basis of conviction in this case. No objection was taken to the admissibility of the certificate before the trial Court with the result that the certificate was admitted in evidence and acted upon. No objection was taken even before the learned Additional Sessions judge who heard the appeal. The objection is however valid for the omis sion relates to a material part of the certificate and the provision about a declaration appears to be mandatory. The absence of an objection also would not cure the defect. I have however considered it proper in the circumstance to examine the Public Analyst who issued ‑the certificate as a witness He has appeared before me and has certified that he examined the article and found its Polenske value to be 3'

0. He has also testified to the fact that in his analysis be had employed the prescribed method. The second contention of learned counsel for the petitioner is based on the remarks column of the schedule quoted above. There are two categories of cases mentioned in the remarks column. The first category relates to cases where the Butyro -Refractive value is between 40 and 42'5 at 40‑C and the Reichert Wollny value is not less than

24. For such cases there is a direction that the Polenske value should be determined. In the second category are cases where the Butyro‑Refractive value is between 40 and 43'5 at 40 C and the Reichert Wollny value is not less than

28. For such cases the direction given is that the : Phytosteryl Acetate test should be performed and there is no direction that the Polenske value should be determined. It is admitted by the learned Advocate‑General as well as by the Public Analyst that the present case falls under the second category. The Butyro Refractive value of the ghee in dispute is between 40 and 43'5 and the Reichert Wollny value is

28. It is admitted too that the Phytosteryl Acetate test has not been performed in the present case. Learned counsel for petitioner puts forward two arguments, He infers in the first place from the absence of a direction as to the finding of Polenske value in the second category of cases that Polenske value should not be found out in such .cases at all. According to learned counsel the omission of a direction for finding out the Polenske value in the second case is due to the fact that in such a case even if the Polenske value be higher the article would not be adulterated. He says there is a proportion between the Reichert Wollny value and the Polenske value. If the Reichert Wollny value be 28, according to him the Polenske value even in the case of pure ghee would be about 3 and if on an analysis the Polenske value be found to be 3 there would be no ground at all for holding that the article is adulterated. Learned counsel refers in support of the proposition put forward to certain books by experts wherein it is stated that if the Reichert Wollny value of butter be 28 the Polenske value may be

3. It is admitted by the Public Analyst that there is a relation between the Reichert Wollny value and the Polenske value. It is also admitted by him that Davis, an expert on this matter has stated in his book that if the Reichert Wollny value of ghee be 28 its Polenske value may be

3. Learned counsel for the petitioner relies on the fact that Davis deals with Indian ghee too. There are two replies to this argument. The first is that the treatises by experts to which I have been referred do not relate to the Punjab and the Polenske value which they indicate may not be the same in the case of Punjab ghee. The Public Analyst who appeared as a witness when questioned on this point referred to a pamphlet entitled "Story of Pakmark Ghee" pub lished by the Pakistan Central Government which says that the Polenske value of Punjab ghee ranges between 1 and

2. The second reply is that I am not concerned with the question whether it is possible that a ghee which has a Polenske value of 3 may not be adulterated at all. The rules provide that if the Polenske value be more than 2'5 the ghee would be regarded as adulterated If I find that the Polenske value is more than 2 5 I cannot possibly hold that the article is not adulterated. It might affect the sentence but it cannot affect the conviction. I am not satisfied however that the opinions of experts to which I have been referred would apply to Punjab ghee also and I would not neglect the opinion expressed in the pamphlet issued by the Government as to the Polenske value of Punjab ghee. The second argument put forward by learned counsel is that as in this case a mandatory provision in the rules has been violated there cannot be any conviction. That provision is that there should be a Phytosteryl Acetate test in cases falling under the second category mentioned in the remarks column. As stated above, admittedly this test has not been performed in the present case. I do not see, however what difference it would make. All that I am concerned is whether there is tin excess or deficiency as provided in the schedule. The direction regarding the excess contained in the remarks column is probably intended‑ to help the Analyst in his examination. In the first place I do not regard this direction as mandatory; in the second place even is, it were mandatory I do not see how it would affect the con viction. At the most the Public Analyst may be guilty of an irregularity. It is admitted by learned counsel for the petitioner that the Phytosteryl Acetate test is not a test for finding out the Polenske value. At the same time he cannot say that in cases falling under the second category Polenske value cannot be more than 2'

5. Therefore it is obvious that in such cases too Polenske value ought to be found out. The petitioner had examined in defence Mr. Aftab Ahmad Khan, Provincial Public Analyst who stated that in the present case it was necessary for the Analyst of the Corporation to perform the Phytosteryl Acetate test. But he stated at the same time that the absence of that test does not mean that the Polenske value found by the Analyst was not correct Learned Counsel merely stresses that a provision of law has not been complied with and that this omission itself vitiates the present proceedings. With this contention I cannot agree. On behalf of the petitioner the veracity of the Corporation Analyst was also attacked. The law has made a very suitable provision for the protection of accused persons in this connection. For every sample that a Food Inspector takes he has also to deliver to the ghee‑seller a sealed sample of the same ghee. It is always open to the accused who impeaches the certificate of the Analyst to get the sample in his possession examined. I offered the petitioner an opportunity to get the sample in his possession examined by the Punjab Provincial Analyst or the Chemical Examiner but he refused to avail of it on the ground that the sample was no longer in his possession. This revision petition is dismissed. A.H. Petition dismissed.