1986 PLP 2671 (MLD)

Syed Fayyaz Hussain Kadri for Respondent No.2. Dates of hearing: 20th and 21st April, 1986. Shakil‑uz‑Zaman petitioner has moved this petition under section 561‑A, Cr.P.C. for quashment of proceedings under section 6 read with section 23 of the West Pakistan Pure Food Ordinance, 1960, pending in the Court of Mr. Z . A . Toor, Senior Special Magistrate, Lahore Municipal Corporation, Lahore.

2. The petitioner is owner of Al‑Sheikh Chemist and General Store, Davis Road, Lahore. On 11th June, 1984 Munir Ahmad, Food Inspector, Municipal Corporation, Lahore, took a sample of Banana Cream Biscuits from the store of the petitioner. The sample was sent to the Public Analyst for analysis, who reported that the biscuit in question was adulterated with foreign fat to the extent of about 100 per cent. On receipt of the report the Food Inspector instituted a complaint in the Court of Special Food Magistrate, Lahore.

3. Munir Ahmad, Food Inspector, appeared in the trial Court as P.W.1. Muhammad Arif, Public Analyst, was examined as a Court witness on 16th October, 1984. The petitioner moved an application under section 249‑A, Cr.P.C. before the trial Magistrate on 29th December, 1984 which was dismissed on 20th January, 1985.

4. Learned counsel for the petitioner contended that the sample was not obtained in the presence of two respectables of the locality, as required by rule 39 of the Pure Food Rules, 1965; Muhammad Ishaq Ghauri, Deputy Public Analyst, was invested with powers under section 4 of the West Pakistan Pure Food Ordinance on the suspension of Muhammad Arif C.W. vide Notification dated 11th October, 1979 which still holds the field, therefore, aforesaid C.W. was not competent to act as Public Analyst; Muhammad Arif C.W. admitted that he had rest analysed the sample in accordance with the standard laid down in pare. 106, Appendix II of Pure Food Rules, 1965, therefore, the analysis was not in accordance with law and any report, or evidence, based on such analysis would be of no consequence. Learned State counsel conceded that fresh Notification for re‑investigature of powers as Public Analyst in the case of Mr. Muhammad Arif was required, which was never issued. He also conceded that the analysis being in violation of para. 106 of Appendix II to Pure Food Rules, 1965, was illegal. Learned counsel for Lahore Corporation, on the other hand contended that para, 11 of Appendix II provides that cream or Balai shall contain not less than 40 per cent of milk fat and that the cream of that standard was required to be used in the biscuits. According to the learned counsel, as the fat found in the biscuit on analysis was not of requisite standard, the proceedings initiated against the petitioner are legal and well founded. He also controverted the other contentions of the learned counsel for the petitioner.

5. I have given my careful consideration to the submissions made by the learned counsel for the parties. According to the Public Analyst, on analysis the biscuit in question (Banana Cream) was found not to conform to the standard of cream prescribed by the Rules made under the West Pakistan Pure Food Ordinance, 1960. At the trial he stated that analysis was conducted keeping in view the standard laid down in para. 11 of Appendix II of the Pure Food Rules, 1965, read with definition of "Cream" given in section 2(6) of the West Pakistan Pure Food Ordinance, 1960. He admitted that he did not analyse the sample according to the standard laid down in para. 106 of Appendix II referred to in rule 12 of Pure Food Rules, 1965. He also conceded that standard for biscuits is laid down in para. 106, referred to above. This para, besides providing the standards to which biscuits are to conform, lays down that the word "cream" used to describe a biscuit shall indicate a biscuit sandwich with an emulsion of fat and sugar with colour and flavour, except in the case of "Cream Cracker". The public Analyst was, therefore, required to conduct the analysis keeping in view the standard prescribed by para. 106 as it specifically provides for the standard for the biscuits. It is well‑established, that general provision is not to be referred to when a specific provision covers a specific situation. In these circumstances., definition of the word "Cream" given in section 2(6) of the West Pakistan Pure Food Ordinance, 1960, and para. 11 of Appendix II could not be referred to and the standard provided thereunder could not legally form a basis for analysing the sample of biscuits in question. The analysis should have been conducted) in accordance with para. 106 of Appendix 11 to the Pure Food Rules, 1965. This admittedly was not done. In that view of the matter, there is no legal evidence available with the prosecution to substantiate the charge framed against the petitioner. In the circumstances, continuation of the proceedings would amount to abuse of the process of Court. As the petition succeeds on this point, the other contentions need not be gone into. The petition is allowed and the proceedings pending against the petitioner in the Court of Special Food Magistrate, Lahore, under section 6 read with section 23 of the West Pakistan Pure Food Ordinance,) 1960, are quashed. S. A.??????????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.