STATE Vs. SHRI KANHIYA LAL

JUDGEMENT

(1.) Shri K.K. Mittal, a Food Inspector of the Municipal Corporation of Delhi, purchased a sample of Khoya (Danedar) from the business premises of Messrs. Banarsi Dass Hari Kishan Dass, a partnership firm, on 24-2-1979 through Hari Kishan Dass, partner salesman. On examination, the Khoya was found by the Public Analyst to be adulterated and the Assistant Municipal Prosecutor lodged a complaint for the prosecution of the Firm, Messrs. Banarsi Dass Hari Kishan Dass, as well as its three partners, Hari Kishan Dass, Kanhya Lal and Naresh Kumar, under Sec. 16 read with Sec. 7 of the Prevention of Food Adulteration Act, 1954. The prosecution examined M.L. Kalra, an Inspector of the Sales Tax Department, and K.K. Mittal the aforesaid Food Inspector and closed its preliminary evidence. Shri R.C. Chopra, Metropolitan Magistrate, ordered issue of process against the Firm and Hari Kishan Dass and dismissed the complaint qua the other two accused under Sec. 203 of the Code of Criminal Procedure because according to him there was no sufficient ground for proceeding against them. The present revision petition has been moved against the last mentioned portion of the aforesaid order by the Municipal Corporation of Delhi.

(2.) M.L. Kalra, Inspector of Sales Tax Department, deposed before the learned Magistrate that as per the records of his Department, Messrs. Banarsi Dass Hari Kishan Dass was a partnership firm registered on 8-8-1975 and Hari Kishan Dass, Kanhya Lal and Naresh Kumar were its partners. The other prosecution witness, K.K. Mittal, testified that the sample of Khoya was sold to him by Hari Kishan Dass and the other two partners of the Frrm were not present at the time of the sale. He did not collect any evidence to show that Kanhya Lal and Naresh Kumar had come to the shop at any time on 24-2-1979 and he had no knowledge whether or not they were in Delhi on the said date although in the course of his investigation, he said, the two partners had informed him that they were engaged in the business of Khoya exclusively and they were working only at the aforesaid shop. It was also learnt by him from Hari Kishan Dass that they also were working partners of the concern. The question arises as to whether the evidence referred to above is sufficient for requiring Kanhya Lal and Naresh Kumar to appear in the Court and face the charge levelled against them by the Municipal Corporation.

(3.) The provision of law relevant to the issue is to be found in Subsection (I) of Sec. 17 of the Prevention of Food Adulteration Act which reads as follows:-