AMER Versus MUHAMMAD ASHRAF KHAN

This judgment will also disposed Writ Petition No.1517 of. 1992 as common questions of law and facts are involved in both of them.

2. The facts of the case are that the petitioner who is general merchant carries on business .of selling the Foodstuffs. On 21‑2‑1992, respondent No.1 alongwith raiding party raided his business premises at 6 p.m. and took in possession 250 grams of Coconut Pulp. On the same day, he also raided the business premises of the petitioner in the connected writ petition and took into possession 250 grams Coconut Pulp. The business premises of the petitioners in both the writ petitions are admittedly situated within the limits of Municipal Corporation, Faisalabad.

3. In these Constitutional petitions the legality of the act of respondent No.l of raiding the business premises of the petitioner and taking into possession of Coconut Pulp to ascertain whether they were adulterated ‑has been charged on the ground that the same was without lawful authority as respondent No.l was not authorised under the West Pakistan Pure Food

Ordinance, 1960 to conduct the raid because according to this law it was only a Food Inspector appointed under the said Ordinance who could obtain the samples of any Foodstuff and conduct the raid.

4. The report and parawise comments were called for in which respondent No.1 attempted to justify his action on the ground that the Deputy Commissioner of the District constituted Ante‑Adulteration Committee in order to carry out a general campaign launched by the Provincial Government against adulteration in food and further that according to the Notification No.HSO (F&N)‑1 /71‑62, dated 20th May, 1963, he as a Magistrate was Ex -Officio Food Inspector therefore was vested with the powers of Food Inspector. It is clear from the comments that the case of respondent No.1 was that under the Pure Food Ordinance he was authorised to conduct the raid and take samples of the Foodstuffs. .

5. Under section 16 of the West Pakistan Pure Food Ordinance, it is the Provincial Government who is to appoint a Food Inspector for the purpose of the said Ordinance who only is authorised to conduct the raids to get samples of the Foodstuffs. The constitution of ante‑Adulteration Committee by the Deputy Commissioner is not a substitution of a notification to be issued by the Government under the Pure Food Ordinance for appointment of a Food A Inspector therefore his appointment as member of the said Committee constituted by the Deputy Commissioner in exercise of his Administrative powers does not amount to appointment of respondent No.1 as Food Inspector under the Pure Food Ordinance as Deputy Commissioner is not competent to make such appointments, because exclusive powers in this respect vested in the Provincial Government.

6. So far as Notification No.HSO. (F&N)‑1/71‑62, dated 20th May, 1963 is concerned it was frankly conceded by the learned Assistant Advocate -General that the same had been superseded subsequently and respondent No.1 could not claim to have the powers of Food Inspector by virtue of the said Notification being a Magistrate. Even otherwise I have held in Writ Petition No.4129 of 1988 that the said Notification having been superseded subsequently was no longer in force and no authority could be derived by respondent No.1 under the said Notification to exercise the powers of a Food Inspector.

7. Learned Assistant Advocate‑General submitted that the case also falls under section 273, P.P.C., therefore, it was open to the State under section 25 of the General Clauses Act to proceed against the petitioner under either of 8 the two laws under which he could be punished with only one limitation that the petitioner could not be tried and punished twice for the same offence. His case was that the State was not bound to try the petitioner under the Pure Food Ordinance even if the case also fell under the said Ordinance.

8. The argument in my opinion is not tenable. It is not the case of respondent No. 1 that he proceeded under the ordinary law and the petitioner was to be tried for an offence under section 273, P.P.C. His case was that he could conduct the raid having been conferred the powers of Food Inspector. Even otherwise, the offence under section 273, P.P.C. is non‑cognizable offence. It could not be investigated unless there was an order obtained from the Court on the report. Faced with this situation learned, Assistant Advocate‑General submitted that the omission to obtain permission of the Court before commencing the investigation was irregularity which was curable under section 537, Cr.P.C. and the trial of the case is not vitiated. He has placed reliance on judgments reported as Muhammad Nawaz v. The State 1970 P Cr. L J 1240 and Mst. Sadan v. The State PLD 1965 Baghdad‑ul‑Jadid 12. I am afraid if reliance could be placed on the rule laid down in these reported judgments inasmuch as the trial has, not yet commenced and the petitioner is objecting from the very start to the act of respondent No.1 of the conducting the raid.

9. This argument is also not tenable for other reasons. The West Pakistan Pure Food Ordinance is a special law enacted for the purposes of dealing with the cases of adulteration in food. It prescribes a different machinery and the procedure of conducting raid and getting samples. Under this law the local authorities have been given the responsibility to enforce the provisions of the said Ordinance. Under the Criminal Procedure Code the procedure regarding investigations etc. prescribed under special law has been saved. The petitioner in the facts and circumstances of this case could only be proceeded against under the West Pakistan Pure Food Ordinance and his premises could be raided only by a Food Inspector appointed by the Provincial Government under the said Ordinance. This has been held in Writ Petition No. 4129 of 1988. The act of respondent No.1 of raiding the premises of the petitioner, taking into possession the samples of Coconut Pulp and further proceedings cannot be sustained.

10. This writ petition is accepted. It is declared that the raid conducted by respondent No.1 in the business premises of the petitioner and subsequent acts of taking samples and further proceedings are illegal, without lawful authority and of no legal effect and quashed. The parties are left to bear their own costs.

H.B.T./A‑158/L Petitions accepted.