Adulteration in food is a “cognisable offence” under the Pure Food Ordinance (PFO), and hence an FIR should be lodged in cases of transgression instead of filing a direct complaint, declared District Judge (DJ)-South Faheem Ahmed Siddiqui in his judgment in a criminal review petition filed by food inspectors of the City District Government Karachi (CDGK).
Officials of the CDGK Health Department had moved the court against 14 men involved in supplying impure food. The judgement in the case is unique, since interpretation of law has made provision for registration of an FIR for PFO offences.
In his single order to decide the matter, DJ Siddiqui said that adulteration in food is not only a cognisable offence, it is also a non-bailable one. While observing that it is necessary to provide guidelines for registration of a case under the PFO, the judge ordered that after the registration of an FIR against the accused, the matter is thoroughly investigated.
These cases were previously dealt with by the executive magistrates of the defunct Karachi Metropolitan Corporation, where these cases were tried as non-cognisable offences. Greater stress was put on handing down alternate punishment of a meagre fine, which was easily paid by the person engaged in the business of impure food, the court observed.
DJ Siddiqui said that by lodging an FIR, the entire chain of impure food supply can be detected and busted, and the licenses of those found involved be cancelled, and would face dismissal. He said that this practice would curb food adulteration, and also act as a deterrent. The order said that by enhancing the punishment under PFO, the intention of the legislature was to curb the evil of adulteration, but unfortunately the law is not being implemented.
The order has been circulated to all civil judges and judicial magistrates of District South, with the direction to discharge/dispose of all pending cases of PFO filed through direct complaint according to the new judgement. Similarly, CDGK authorities have been ordered to the procedures as ordered in respect of cases under PFO.
The criminal review petitions lodged by the CDGK include Crl Rev 10/2010 Food Inspectors Tariq Javed versus Hom Parakash s/o Heera Noath; Crl Rev 13/10 Food Inspector CDGK Mohammed Zubair versus Hazrat Mohammed and Raheem Dad; Crl Rev 14/10 Food Inspector Tariq Javed versus Imran Ali; Crl 15/10 Food Inspector Shaukat Ali versus Zahid Ali and Shaukat Ali; Crl 16/10 Food Inspector Javed Ali versus Liaquat Ali; Crl Rev 17/10 Food Inspector Tariq Javed versus Abid; Crl Rev 18/10 Food Inspector Shahnawaz Soomro versus Mohammed Zahid; Crl Rev 19/10 Food Inspector Shahnawaz Soomro versus Tahir Yousuf; Crl Rev 20/10 Shahnawaz Soomro versus Mohammed Aslam and Abdul Hanan; Crl Rev 21/10 Food Inspector Shahnawaz Soomro versus Fayyaz Ahmed; Crl Rev 36 Food Inspector Tariq Javed versus Ehsan s/o Mohammed Iqbal; Crl 37/10 Food Inspector Tariq Javed versus Sadaqat Mohammed Anwer; Crl Rev 38/10 Food Inspector Shahnawaz Soomro versus Mohammed Ameer s/o Ghulam Mustafa; Crl Rev 39 Food Inspector Shahnawaz Soomro versus The State.
All complaints were filed before Judicial Magistrate II, who refused to take cognisance in the cases, and dismissed the complainants on the ground that food samples were not sent to an independent laboratory and the witnesses of the complainant were his subordinates.
It was also the opinion of the magistrate that raids conducted on the shops of the accused/respondents were in transgression of Rule 42 of the Pure Food Rules. Another interesting thing observed in Criminal Revision 39/2010 is that the magistrate dismissed the complainant along with the others on the ground that there was an amendment in Section 32 in Pure Food Ordinance, 1960. According to the magistrate, the changed section is as, “the offences under this Ordinance shall be cognisable and non-bailable”
According to the magistrate, as per the amendment, the cases of the Food Ordinance are now cognisable, and as such, an FIR ought to be lodged in these cases instead of direct complaint. The order said that considering this aspect as important and unique, a notice was issued to the respondents and Masroor Ahmed Wasti Advocate was requested to act as Amicus Curie in the matter.
The legal director of CDGK, Manzoor Ahmed, submitted in his arguments that the provincial legislature has not made any amendments to Section 32 of the Pure Food Ordinance. He cited the amendment in Section 31 of the Pure food Ordinance, which deals with the procedure of trial to be followed.
As per the judgment, the CDGK counsel said, there is no need to lodge an FIR, and a complaint by the authorised inspector is fully competent in Sindh.
In this respect, he also referred to Section 23-A of the Ordinance, contending that the complainants in all cases are authorised persons and such authorization is notified under the Gazette. When crossed, he said that the cases under PFO are not cognisable in Sindh, as no amendments have been made to Section 32 in Sindh.
Mansoor Wasti contended that there a gross illegality was committed by the trial court. He said that the trial magistrate cannot brush aside the evidence of the subordinates of the complainant, merely because they are officials working under him. He cited Article 85 of Qanoon-e-Shahadat, which is very clear. He said that being a special law, the procedure provided in the PFO is to be followed, adding that the complainant has produced the authorisation and thus, the complaint was competently filed.
After hearing the arguments, the judge said that it is not Section 32 of the PFO, but Section 23 of PFO which decides that cases under the said Ordinance are cognisable, and that Section 23 was substituted by the Pure Food (Sindh Amendment) Act IX of 1973.
The judge also reproduced Section 23 of the PFO 1960 which reads:
(1) Whoever contravenes the provisions of Section 12 or 21 shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
(2) Whoever contravenes for provisions of Section 7,8,9,10,11 or 18 shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both but the term of imprisonment shall not be less than six months and fine shall not be less than five hundred rupees”.
The order regretted that the same procedure of dealing these cases as ‘non-cognisable’ was continued ever after separation of judiciary from executive adding that due to late investigation majority of cases are ended on acquittal and the trade of adulterated and impure food reached to an alarming stage.
All the citation and references proved that after the amendment of 1973, the punishment provided under law has been enhanced, and ranged between three years and seven years imprisonment. Under the cognisable offences provided under Section 4(1)(f) of the Criminal Procedure Code, “cognisable offence” is defined as a case in which a police officer may, in accordance with the second schedule or under any law for the time being in force, arrest culprits without warrants.
The cases under the PFO fall under the category of ‘Other Laws’ of the second Schedule of the Code of Criminal Procedure. Hence it is now palpable that offences under PFO are ‘cognisable’ as such an FIR should be lodged instead of a direct complaint.
