2010 PLP 14 (YLR)

KAZIM ALI MALIK, J.

Brief fact giving rise to this Constitutional petition, may be given first:

District Officer Health, Sialkot, received a complaint from Naubahar Bottling Company, Sialkot with an allegation, in brief, that Arif Hussain, respondent No.2 herein had been selling substandard and injurious to human health cold drinks. The District Health Officer constituted a raiding party, consisting of Muhammad Islam Qamr, DSI, Khalid Javed and Bashir Masih, Sanitary Patrolling Officers, headed by Deputy District Officer (Revenue), Sambaryal and raided the business place of the respondent with the name and style of Arain Traders and found huge quantity of bottles of cold drinks lying at a dirty place. In exercise of powers under section 146-D of the Punjab Local Government Ordinance, 2001, the raiding party prepared samples of the cold drinks of different brands, sealed the godown, wherein the bottles had been stored by Arif Hussain, respondent, and passed on the information to the above effect to S.H.O, Police Station, Sambaryal, Area Magistrate, the DCO and District Nazim, Sialkot. After an hour of the above said exercise, Arif Hussain, respondent de-sealed the store and took away the bottles lying therein. A case F.I.R. No.397 dated 5-7-2008 under section 14(2)(a) of the Punjab Local Government Ordinance was registered with Police Station, Sambaryal, District Sialkot, about the abovesaid happening. During the course of investigation, the Investigator recovered 2647 bottles of Pepsi brand from the respondent, which were taken into possession as case property.

2. On 14-7-2008, Arif Hussain, respondent, made an application before the Area Magistrate, Daska District Sialkot, seeking custody of the above said bottles. The Area Magistrate called for report from the S.H.O. Shahbaz Ahmad, Muharer, made a report, which was forwarded by Riaz Dar, S.H.O. For facility of reference, the report is reproduced below:-- The Area Magistrate after examining the report enquired from the S.H.O. as to whether or not the samples of the cold drinks in question had been dispatched to the Test Laboratory and if dispatched what was the report of analyst. Shahbaz, Muharer, same day responded to the query as under:- The second report by the Muharer was also forwarded by the S.H.O. The learned Magistrate allowed the request for custody of the recovered bottles vide order dated 15-7-2008 with an observation:-- "Report of the S.H.O. concerned shows that the police has not sent the said bottles for chemical analysis and stated that he has got no objection if the Superdari application be accepted. There is no other claimant. When the petitioner is owner of the above-said Bottles as it thinks fit for the proper custody of the bottles. In view of what has been discussed above, the Superdari application is hereby accepted subject to his furnishing of surety bond in the sum of Rs.70,000 with one surety in the like amount to the satisfaction of this Court. Dated 15-7-2008 ??????????????????????????????????????????? ??????????? ???Signature. Magistrate Section 30, Daska" In the above manner, the application for custody of the bottles moved by Arif Hussain, respondent, on 15-7-2008 was allowed the same day and the local police handed over 2646 bottles to the respondent in compliance with the above said order of the Area Magistrate. On 16-10-2008 Muzafar-ud-Din Khan, Manager Naubahar Bottles Agency, Sialkot, at whose instance the raid was conducted, made an application before the Area Magistrate for recalling the order of Superdari on the ground that it had already been established on record that the samples contained sediments not fit for human consumption. The Area Magistrate turned down the request for recalling of order of Superdari by means of order dated 3-1-2009 with an observation: "The further ground for recalling of order of superdari of the petitioner is that the report sent to DHO, Sialkot regarding purity of soft drink contained in bottles taken on superdari is reported as containing impure substance. This is not a valid ground for recalling of order of superdari passed in favour of respondent for reason of report of impurity of drink as given by the testing laboratory. In the circumstances when the respondent has submitted to the Court that he is always ready to present bottles taken on superdari as and when required by Court. I do not feel any need to recalling of order of the superdari, because there is no fear of destruction or tampering with said property. In the light of above said discussion, the petition filed on behalf of the petitioner Muzafar-ud-Din is dismissed. Consigned." Announced?????????????????????????????????????????????????????????????????????????????? Signature 3-1-2009???????????????????????????????????????????????????????????????????? Magistrate 1st Class"

3. The above said orders of the Area Magistrate had been challenged before the learned Additional Sessions Judge, by way of revision petition, which was also dismissed vide order dated 12-2-2009. The following reasons weighed with the learned Additional Sessions Judge, while dismissing the revision petition: "Equity helps vigilant and not dormant and indolent. Moreover, there is no provision of review in the Criminal Procedure Code. Furthermore, the bottles in question are perishable and decayable commodity. Even then the learned Area Magistrate had lime-lighted in its impugned order that the Superdar Arif Hussain has submitted to the Court that he would always be ready to present the bottles taken on Superdari as and when required by the Court. The petitioner can still recourse and resort to the learned trial Court for presenting bottles in question as case property. Huge number of bottles cannot be kept by the Court in its custody as prayed by the petitioner in the instant revision petition. The case of the parties is yet to be disposed of by dint of evidence. Moreover, said Arif Hussain, who obtained the bottles on Superdari has not been arrayed and aligned as party to this revision petition. In this sense this revision petition is defective one. The learned trial Court after discussing all pros and cons besides ins and outs of the matter has rendered the impugned order. There is emerging no material irregularity and illegality in the impugned order."

4. The petitioner has called in question the legality of above said orders of the Area Magistrate and the Revisional Court by invoking Constitutional jurisdiction of this Court.

5. The respondent Arif Hussain prayed for temporary custody of the bottles in question under section 516-A of the Code of Criminal Procedure, 1898, which reads as under:-- "516-A When any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: Provided that, if the property consists of explosive substance, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances; Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf: Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court" Learned counsel for the petitioner has argued that the orders under challenge being violative of statutory provisions of law governing the subject and offensive to the record are liable to be set aside. On the other hand, learned counsel for the respondent has contended that only the Inspectors appointed under sections 17 and 18 of the Pure Food Stuffs (Control) Act, 1958 are authorized to conduct raid and obtain samples of the food 'suspected to be adulterated or injurious to health and that in exercise of constitutional jurisdiction this Court cannot rectify even an erroneous decision of the trial Court or that of the revisional Court. The learned counsel has further argued that the petitioner sought review of the order of Superdari in utter disregard to the legal principle that review is alien to the criminal law.

5. In the light of counter-claims laid before this Court, the following legal questions have arisen for determination by this Court:-- (a) Whether an erroneous view taken by the trial Court or revisional Court while deciding an application under section 516-A, Cr.P.C. is amenable to the Constitutional jurisdiction of High Court. (b) Whether an order under sec?tion 516-A Cr.P.C. amounts to judgments or is ad interlocutory order, which can be varied by the trial Court, even before final disposal of the case, if circumstances so warrant. (c) Whether District Officer (Health) Sialkot, District Sanitary Inspector, Sialkot, Deputy District Officer (Health), Sambaryal and Sanitary Patrolling Officers attached with the office of District Officer (Health) Sialkot were competent to raid premises of the respon?dent and seize and bottles in question.

6. Sindh High Court had held in Muhammad Yousaf v. Muhammad Iqbal and others (PLD 1979 Karachi 430) that revisional powers under section 439 Cr.P.C. of the High Court are distinguishable from those available under Article 199 of the Constitution of the Islamic Republic of Pakistan as in the former case mistake of fact or law can be rectified, but in the latter case only jurisdictional defect in the impugned order can be interfered with. The Honourable Sindh High Court further observed in the precedent case that even an erroneous decision taken by the trial Court or the revisional Court, while deciding an application under section 516-A, Cr.P.C. cannot be rectified by the High Court in exercise of Constitutional jurisdiction and interference with such order of the Courts below is only permissible where the Subordinate Courts have either exercised jurisdiction which did not vest or exceeded the jurisdiction or failed to exercise the jurisdiction. But, the view of the Lahore High Court is altogether different on the point in issue. In Abdul Rashid v. Sessions Judge, Jhang and 2 others (PLD 1979 Lahore 613), it has been ruled that the High Court would not ordinarily interfere with the discretionary orders passed by the learned lower Courts in the matters of temporary custody of seized property, but this Court has always interfered where the lower Courts passed such orders without considering all the relevant circumstances of the case or passed an order in an arbitrary manner because the discretionary powers are to be exercised on sound judicial principles and not arbitrarily or fancifully. It was also held that High Court would also interfere if the finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of powers and unreasonable view about the point in issue. Therefore this Court is fully justified to examine the impugned orders in the light of above parameters in exercise of Constitutional jurisdiction.

9. In the case in hand, there was an allegation against Arif Hussain, respondent, that he had been selling fake, substandard and injurious to health soda water of different brands. The raiding party took samples of soda water from the store of the respondent. Government of Punjab Analyst, Lahore analyzed the said samples and opined vide order dated 19-7-2008 that the same contained sediments and suspensions not fit for human consumption. It was also observed by the Analyst that the samples contained non-nutritive artificial sweetener in combination with sugar, prohibited vide Rule 10(e) of the Pure Food Rules, 1965. It was specifically mentioned in F.I.R. No.397 of 2008 registered with Police Station, Sambaryal that the samples of soda water, being stored and sold by the respondent, had been sent to the analyst. For ready reference relevant portion of the F.I.R. is reproduced below in verbatim: Shahbaz Ahmad, Muharer, made a report in response to the order of Area Magistrate that he had no objection if 2646 bottles were given to Arif Hussain on Superdari. The S.H.O. also approved his report. The available record does not tell as to what was the motive and consideration which persuaded and prompted the police officials to issue no-objection-certificate in favour of the respondent/accused against whom the allegation was that he had been selling substandard and injurious to health soda water of different brands. There was no occasion for the Area Magistrate to enquire from the S.H.O. as to whether or not the samples had been sent to the laboratory for analysis because it was already mentioned in the F.I.R. that the samples had been prepared for the said purpose. In the circumstances, the Area Magistrate was required to requisition the report of Analyst. Muharer and the S.H.O. reported to the Area Magistrate that the police had not sent the samples to the Laboratory. In fact the two police officials suppressed, concealed and distorted the true facts in order to facilitate the respondent to obtain bottles in question on Superdari. The Police Officials were required to report that the sample had been sent to the Analyst by the Health Department and the result thereof was awaited. The Area Magistrate allowed the Superdari of bottles on the ground that the S.H.O. had not sent the samples for analysis and he had no objection to the acceptance of the request of accused. Had the Area Magistrate bothered to examine the F.I.R, he would have conveniently learnt that the samples had been sent to the Analyst by the Health Department. No-objection certificate issued by the local police did not provide a basis to the Area Magistrate to pass an order of Superdari. He should have declined the request for Superdari by the accused on the basis of available material i.e. F.I.R, recovery memo and reference to the Government of Punjab Analyst. It is painful to note that the Area Magistrate in fact mortgaged his functions and duties to the Police.

10. The petitioner approached the learned Area Magistrate for recalling of the order of Superdari, which had been passed ex parte without notice to the petitioner and the Health Department, on the ground that 2646 bottles of soda water had wrongly been handed over to the respondent on Superdari as the same had been found not fit for human consumption by the Analyst. What a pity! in the opinion of the Area Magistrate the abovesaid plea was not a valid ground for recalling the order of Superdari. I fail to understand as to why the report of Analyst dated 19-7-2008 to the above effect did not find favour with the Area Magistrate on 3-1-2009. It is not understandable as to what was the philosophy or wisdom, which persuaded the Area Magistrate to hand over a sizeable number of bottles of soda water on Superdari to the accused, which had already been found not fit for human consumption.

11. The revisional Court also endorsed the arbitrary decision of the Area Magistrate. The learned Additional Sessions Judge erred in law while holding that the order of Superdari was a judgment, which could not be reviewed. In fact, it was an interlocutory order, which could be varied by the trial Court or the revisional Court, if the circumstances so warranted. I am supported in my view by the case-law laid down in Muhammad Yousaf v. Muhammad Iqbal and 3 others PLD 1979 Karachi

430. The learned revisional Court failed to exercise the jurisdiction vested in it. Had the revisional Court examined the controversy with full application of legal and judicial mind, it would not have been difficult for it to understand that there was no factual or legal justification to hand over the bottles of adulterated and injurious to health soda water to the accused against whom the allegation was that he had been selling adulterated soda water to the people. The learned Additional Sessions Judge mechanically observed that the learned Area Magistrate had passed the order of Superdari after discussing all pros and cons besides ins and outs of the matter. Had the Courts below considered pros and cons/ins and outs of the case, they would not have handed over the adulterated, substandard and injurious to health bottles of soda water to Arif Hussain, accused. Hence, I am of the considered opinion that the impugned orders are arbitrary, perverse, offensive to record and the law and thus are amenable to Constitutional jurisdiction of this Court.

12. It is true that District Health Officer, District Sanitary Inspector, Deputy District Officer (Health) and Central Patrol Officers are not Inspectors under the provisions of Pure Food Laws, but the case in hand had been registered under section 14(2) of the Punjab Local Government Ordinance, 2001. The District Council, Sialkot in exercise of powers under the provisions of Local Government (Amendment) Ordinance, 2005 authorized the District Health Officer, District Sanitary Inspector and Deputy Health Officer of the Sub-Division to act as Inspectors competent to check adulterated food items. Hence, the contention of the learned counsel for the respondent that the District Health Officer and the members of raiding party, were not competent to raid the premises of the respondent, falls to the ground.

13. For the foregoing reasons, I am of the view that the impugned orders are illegal void and without lawful authority. I, therefore, accept this petition, set aside the impugned orders and dismiss the application for temporary custody of the bottles in question with a direction to the S.H.O. to recovery 2646 bottles from Arif Hussain, respondent, by or before 31-8-2009 and deposit them with the Muharer Mall Khana under intimation to the learned Sessions Judge, Sialkot. S.A.K./M-490/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.