SURESHBHAI JEHAJI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner - original accused is aggrieved by judgment and order dated 13.10.2006 passed by the learned Additional Sessions Judge, Patan in Criminal Appeal No. 39 of 2002, whereby the learned Additional Sessions Judge was pleased to confirm the judgment and order passed by the learned Judicial Magistrate First Class, Siddhpur ("JMFC", for short) in Criminal Case No. 1317 of 1989 dated 12.04.2002. The learned JMFC convicted the present petitioner for an offence under Section 7(1) of the Prevention of Food Adulteration Act, 1954 ("the Act", for short) and was pleased to award 2 years R.I., fine of Rs. 1,000/- and in default, 2 months R.I. Under Section 16(1) of the Act.

(2.) Mr.B.S.Supehia, learned Advocate for the petitioner vehemently argued that the judgment and order passed by the learned JMFC, Siddhpur, confirmed by the learned Additional Sessions Judge, Patan is contrary to law and requires to be quashed and set aside in light of the fact that under Section 16A of the Act, offences under sub-section (1) of Section 16 of the Act are to be tried in a 'summary way' by a Judicial Magistrate of the first class, who is specially empowered in this behalf by the State Government. He submitted that second proviso to Section 16A of the Act reads as under:

(3.) The learned Advocate for the petitioner when asked to place a 'notification', by which the State Government has specifically empowered a Judicial Magistrate of the first class to try of the offence under sub-section (1) of Section 16 of the Act in a summary way in the district of Patan or erstwhile district of Mehsana, the learned Advocate expressed his inability to produce any such notification. In absence of any such notification, this argument is not acceptable and hence, this submission is rejected. Besides, Chapter XXXV of the Code of Criminal Procedure ("Code", for short) provides for, Irregular Proceedings. Section 460 of the Code enumerates, irregularities which do not vitiate proceedings, whereas, Section 461 of the Code enumerates, irregularities which vitiate proceedings. Section 461 of the Code says that: