KIRITKUMAR BUDHALAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision is directed against the order dated September 26, 1997 of 2nd Jt.Civil Judge (J.D.) & J.M.F.C., Gandhinagar, rejecting the application of the revisionist for dropping proceedings initiated against him under the Prevention of Food Adulteration Act.

(2.) Shri BP Gupta, learned counsel for the revisionist and Shri KC Shah, learned APP have been heard.

(3.) The application (Annexure-B) was moved by the revisionist before the trial Magistrate that, since the revisionist was being prosecuted for misbranding tobacco and since the rule relating to misbranding, as contained in rule 32(e) of the Prevention of Food Adulteration Rules has been declared by the Apex Court in Dwarka Nath v. Delhi Municipality AIR 1971 S.C. p.1844 as ultra vires, the proceedings against the revisionist were liable to be dropped, and since the learned Magistrate did not do so, he committed illegality, requiring interference in this revision. The impugned order shows that the learned Magistrate, on principle, accepted the Apex Court's verdict in the case of Dwarka Nath v. Delhi Municipality (Supra) but, observed that the case before him stood on different facts and, without recording evidence he can not discharge the accused under sec.245(2) of the Criminal Procedure Code. In support of his view, he has placed reliance upon Balwantbhai Dharamsingbhai Varia v. Rajnikant Gordhanbhai Patel & Ors. 1993 GLR p.463.