P L D 1966 (W (PLP)

A.‑Yes. Q.‑Do you want to say anything more and were you previously convicted ? A.‑No. I was previously fined Rs. 200.00 from the Court of E. A. C. II, Mardan, in a similar case in addition to one month's rigorous imprisonment. The learned Magistrate has considered this statement as a confession by the petitioner of his guilt, and the learned appellate Court has treated it as a voluntary "plea of guilty" which renders his conviction immune from challenge in appeal except as to the extent and legality of sentence under section 412 of the Code of Criminal Procedure. The first question that arises for consideration is whether the statement of the petitioner as reproduced above really amounts to a plea of guilty, as required by law. His statement in response to the questions put to him will have to be related to the circumstances appearing in the evidence led against him which he was required to explain under section 342 of the Code of Criminal Procedure. The plea of guilty, to be spelt out of the statement of an accused person has to be considered on the basis of the circumstances proved against him and not as to what was merely alleged against him. It is not enough for purposes of conviction of an accused person on the strength of his statement, that he should plead guilty to a penal section of the law which may be considered to cover his alleged offence, or for that matter to say generally that he is guilty without a conscious realisation of the actual facts of the prosecution case proved against him which must be put to him and his answers solicited. Unless the "plea of guilt" entered by the accused is in respect of the proved circumstances against him, constituting an offence under the law, it would not amount of an admission of guilt .on his part, to preclude him from challenging his conviction and sentence made on the basis of that plea. In the present case, the accused did admit that he had sold tea in question to Dilbar Shah which was below standard, but in the circumstances of the case I do not consider that it really amounted to an admission of his guilt. I have not been able to discover that to sell a food stuff which is below standard is punishable as an offence by itself, without clear proof as to what was the standard demanded in respect of that food stuff from which the subject‑matter of the offence had fallen short. It is necessary to refer here to the relevant portions of sections 5 and 6 of the Ordinance which cover the point: "

5. No person shall, directly or indirectly, himself or by any other person

(a) prepare, manufacture, keep pr store for sole, or sell or offer to sell, any food which is unsound, unwholesome, injurious to health or unfit for human consumption; (6) No person shall, directly or indirectly, himself or by any other person, prepare, manufacture keep or store for sale, or sell or offer to sell any food‑ (a) which is adulterated; (b) which is misbranded; (c) which is not of the nature, substance or quality demanded, or which it purports or is represented to be; . . ." Section 5 is obviously not applicable to the present case as the admission of the petitioner that the tea was below standard does not necessarily mean that it was unsound, unwholesome, injurious to health or unfit for human consumption ; nor would it mean for purposes of section 6 that it was adulterated nor that it was not of the nature, substance or the quality demanded or is other than what it purports or was represented to be, without showing as to what was the substance or quality demanded in this behalf or that it was represented to be other than what it was. The prosecution has not taken the trouble of proving these matters in this case and, therefore, the mere statement of the petitioner that the tea in question sold by him was below the standard does not, in view, carry the prosecution anywhere.

4. Even if I were to accept the certificate of the Public Analyst on its face value to hold that the tea leaves sold by the petitioner were not of the nature, substance or the quality as required, being below standard and that it was adulterated stuff, containing a fair percentage of ash, it, is not possible to get over a basic defect in the analysis made by the Public Analyst in this case, as it has been done in contravention of a rule which, to my mind, vitiates the analysis and the resulting opinion of the Analyst. In rule 46 of the Rules it is laid down that the quantity of the samples supplied for analysis to a Public Analyst shall not be less than a specified quantity and in the case of tea, the specified quantity is stated to be 4 ounces. In the present case, it is admitted that only one Chhatank of tea was sent to the Public Analyst. Out of the total of 3 Chhatanks purchased from the petitioner, which was divided into three parts, one was given to the petitioner to be kept by him, one retained by the Food Inspector and the third sent to the Public Analyst, all in sealed bottles, as required by the Rules. The Chhatank sent to the Public Analyst, amounting to 2 ounces, is actually one‑half of the specified quantity that should have been sent to him. As a deficient sample, short of half the specified quantity, was sent to the Public Analyst in violation of the statutory rules, his analysis of that sample is not in accordance with law and the resulting opinion obviously suffers from a defect. His certificate, which is the main‑stay of the prosecution, therefore, cannot be accepted as conclusive of the petitioner's guilt.

5. Reverting to the plea of guilty of the petitioner, in reference to the circumstances disclosed in the prosecution evidence against him, it is to be considered that he had admitted the tea in question to be below standard as found by the Public Analyst. If that analysis itself is defective, the admission of the tea being below standard on that analysis would not amount to an admission of being guilty in respect of a proved offence. In this view of the matter, I am constrained to set aside his conviction, including the levy of fine of Rs. 30.00 on him as fee of the Public Analyst. The petitioner is acquitted and shall be set at liberty forthwith. K. B. A. Appeal accepted.