GOVINDAN Vs. FOOD INSPECTOR

JUDGEMENT

(1.) The revision petitioner was the accused in C.C. No. 327 of 1976 on the file of the Sub Divisional Judicial Magistrate, Kunnamkulam, who was convicted under S.7(1) read with S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1955 (for short the Act) read with R.44(b) of the Prevention of Food Adulteration Rules, 1955. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 500 with a default clause. The prosecution case was that on 25-5-1976 at 8 A.M. the Food Inspector of Kunnamkulam Municipality purchased 675 milli litres of goat's milk from the petitioner. It was found on analysis to contain 34% of added water and that it did not conform to the standard prescribed for goat's milk under the Rules. The petitioner filed an appeal before the Sessions Judge of Trichur. In the course of the judgment the learned Judge found that there was no strict compliance with S.13(2) of the Act. The prosecution filed an application under S.311 of the Criminal Procedure Code to permit them to adduce additional evidence. The learned Sessions Judge allowed this application and directed the Magistrate to take additional evidence exercising powers under S.391, Cr.P.C. The learned Magistrate took evidence and returned the files with the evidence so recorded but also with the finding that S.13(2) had been complied with. After that the learned Sessions Judge dismissed the appeal confirming the conviction and sentence. Hence this revision.

(2.) The facts are not in dispute. Crl. M. P. No. 344 of 1978 is the application filed by the public prosecutor under S.311 of the Criminal Procedure Code. That was disposed of by the learned Sessions Judge by his order dated 14th November, 1978. The non compliance with S.13(2) of the Act in this case was the absence of evidence that the report of the public analyst was immediately communicated to the accused. The public prosecutor's submission based on S.114 of the Evidence Act that a presumption should be drawn that all official acts have been done properly, was repelled by the learned Judge and he held that evidence on the point was absolutely necessary for a just decision of the case. The two documents produced at the appellate stage were admitted in evidence. The learned Judge passed another order on the same date under the following circumstances. The admission of additional documents in evidence was opposed by the accused not only on the ground that the evidence supplied by those documents was not admissible at the appellate stage but also since their genuineness was disputed. Therefore, the learned Judge directed the court below to allow the prosecution and the defence to let in further evidence on this aspect and submit its finding regarding the service of notice and the report of the public analyst The lower court was directed to consider whether there had been due compliance with S.13(2) of the Act. The operative portion of the order reads as follows:-

(3.) It is necessary to note that the petitioner did not challenge the order of the Sessions Judge dated 14-11-1978 when he sent back the case to the Magistrate for the purpose of taking additional evidence and to return a finding. The petitioner's counsel attempts now to question the correctness and propriety of that order in this revision. It may not be permissible to allow him to do so. He could have challenged that order by moving this court if a revision would lie against it or under S.482, Cr.P.C. Not having done so an attack against that older at this stage will not be entertained. The said direction by the sessions Judge is a patent mistake. The Criminal Procedure Code does not contain a provision similar to O.1 R.25 C.P.C. which enables the appellate court to call for a finding. A Trial Court becomes functus officio once the case before it ends either in conviction or acquittal A reconsideration of the evidence in the case becomes permissible only when it gets seizin of the case on retrial on orders of a higher court.