IDRISMIYA MUKHATYAR AHMED SAIYAD Vs. KALUSINH ADITRAM BARIYA

JUDGEMENT

(1.) The Judgment and order of acquittal passed by the learned Judicial Magistrate (First Class) at Kapadwanj on 14th May 1986 in Criminal Case No. 149 of 1978 is under challenge in this appeal at the instance of the original complainant - the Food Inspector - of the Municipal area of Kapadwanj at the relevant time after obtaining special leave under Section 378(4) of the Code of Criminal Procedure, 1973 ("the Code" for brief). Thereby the learned Trial Magistrate acquitted respondent No. 1 herein of the offences punishable under the relevant provisions contained in Sections 2(1) and 7(i) read with Section 16(1 -A)(i) of the Prevention of Food Adulteration Act, 1954 (the Act for brief).

(2.) The facts giving rise to this appeal move in a narrow compass. The appellant was working as Food Inspector for the municipal area of Kapadwanj at the relevant time. He went to one Janata Dairy situated at Malivada in Sevalia, taluka Thasra at about 10.55 a.m. on 5th December 1977. That shop belonged to respondent No. 2 herein. It was managed by his servant who is arraigned as respondent No. 1 in this appeal. The appellant -Food Inspector purchased 600 gms. of curd for the purpose of its analysis in accordance with the relevant provisions contained in the Act and the Prevention of Food Adulteration Rules, 1955 ("the Rules" for brief). That sample was divided into three equal parts and in each part was added the preservative by the name of formalin of 16 drops. The samples were properly placed in three different containers and the containers were sealed according to law. One sample was sent to the Public Analyst at Vadodara for his analysis and report. The report of the Public Analyst was received and it showed the sample to be highly adulterated. As against the prescribed minimum contents of the percentage of milk fat to the tune of 6%, the contents thereof were found to be a meagre 0.6%. The sample was found deficient qua milk solid non -fats as well. After obtaining the necessary sanction, the appellant -Food Inspector filed his complaint in the Court of the Judicial Magistrate (First Class) at Kapadwanj on 27th January 1978. Its due notice to respondents Nos. 1 and 2 herein was also served in accordance with Section 13 of the Act on 3rd February 1978. It came to be registered as Criminal Case No. 149 of 1978. It appears that respondent No. 1 herein was arraigned as accused No. 2 and respondent No. 2 was arraigned as accused No. 1. Accused No. 1 could not be served even after the issue of non -bailable warrants by the learned Trial Magistrate. By one order passed below the application at Exh. 8 on 5th January 1985, the Trial of accused No. 1 was separated from the trial of accused No. 2 (respondent No. 1 herein). The charge against respondent No. 1 as accused No. 2 was framed on 17th January 1986. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of respondent No. 1 herein under Section 313 of the Code and after hearing arguments, by his judgment and order passed on 14th May 1986 in Criminal case No. 149 of 1978, the learned Judicial Magistrate (First Class) at Kapadwanj acquitted respondent No. 1 herein of the offences with which he was charged. That aggrieved the appellant Food Inspector. He has therefore invoked the appellate jurisdiction of this Court after obtaining its special leave under Section 378(4) of the Code by means of this appeal.

(3.) As aforesaid, respondent No. 2 herein as accused No. 1 in the Trial Court could not be served despite issue of non -bailable warrants. His trial therefore came to be separated from respondent No. 1 herein as accused No. 2. It appears that, through oversight, the learned Trial Magistrate in his impugned judgment and order has shown the presence of both the accused. That is how in the memo of appeal both the accused were arraigned as respondents Nos. 1 and 2 for the purpose of this appeal. Respondent No. 2 herein could not be served. The appeal against him was therefore dismissed for non -prosecution. I think he ought to have been ordered to be deleted from the record of the case as his trial was separated from respondent No. 1 as accused No. 2 in the Trial Court as aforesaid. The presence of respondent No. 2 for the purpose of this appeal was therefore not necessary. Anyway, dismissal of this appeal against respondent No. 2 herein for non -prosecution will be of no consequence and it would be open to the learned Trial Magistrate to proceed against him and to try him as and when he could be made available for the purpose.