ZACHARIAH Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this petition filed under S.482 of the Criminal Procedure Code the petitioner is the first accused in S. T. 24 of 1983 on the file of the Judicial First Class Magistrate, Ranni. Along with the second accused he was prosecuted for having committed an offence punishable under ((THELAW)) 2009 KLT INFOTECH VerDIS � Page 1 of 31986 KLT 272 S.16(1) (a) (1) read with S.7(1) of the Prevention of Food Adulteration Act in having exposed for sale and sold adulterated synthetic vinegar. The Magistrate acquitted the first accused accepting his plea under S.19(2) of the Prevention of Food Adulteration Act and convicted the second accused on the ground that he is the warrantor. The acquittal of the petitioner (first accused) was not challenged by way of appeal. The second accused originally filed an appeal before the Sessions Judge, Quilon against the conviction and sentence as Criminal Appeal No. 7 of 1984. On the formation of the Sessions Court, Pathanamthitta consequent on the birth of the Pathanamthitta district the case was transferred over there and tried as Criminal Appeal 20 of 1984. The first respondent in the appeal was the State of Kerala and the 2nd respondent was the complainant Food Inspector. The present petitioner (first accused) was not a party to the appeal. The appeal was allowed setting aside the conviction and sentence as against the second accused. The case was remanded Then the case was summoned and the Magistrate attempted to proceed against him also as if the case has revived against him also. It is this action that is now being challenged before this court under S.482 of the Criminal Procedure Code.

(2.) IT is a fundamental principle that an adverse order cannot be passed against a person without giving an opportunity of being heard. The petitioner was not a party to Criminal Appeal No. 20 of 1984 and he had no occasion to support his acquittal before the Sessions Court. In fact his acquittal was not challenged by anybody and it has become final also. In Crl. Appeal 20 of 1984 the correctness or otherwise of the conviction of the second accused alone was the matter that could have been agitated. In fact that alone was considered and set aside. The case must have been taken as remanded only in relation to the second accused under the above circumstances. If the Magistrate is proceeding against the present petitioner also that is definitely an illegality which will amount to abuse of the process of court. @page-KLT273# The petition is allowed and the Magistrate is directed not to proceed against the petitioner because the acquittal as against him has become final. The Magistrate will proceed only against the second accused according to law. Allowed. ((THELAW)) 2009 KLT INFOTECH VerDIS � Page 2 of 31986 KLT 272 ((THELAW)) 2009 KLT INFOTECH VerDIS � Page 3 of 3