MANHARLAL C PATEL Vs. DILIPKUMAR ARJANDAS ISRANI

JUDGEMENT

(1.) THIS Revision Application filed under Section 397 read with Section 401 of the Criminal Procedure Code has been preferred by the petitioner-Food Inspector (original complainant), Bhuj Municipality, Bhuj, against the impugned judgment and order dated 19-9-2000 passed by the learned Chief Judicial Magistrate, Bhuj, Kachchh below Exh. 49 in Criminal Case no. 1029 of 1994 whereby the respondents-original accused came to be discharged in connection with the offence of breach of proviso of Rule 32 (e) of the Prevention of Food Adulteration Rules, 1955 the Rules for short) and misbranding under Section 2 (ix)K of the Prevention of Food Adulteration Act, 1954 ( the Act for short ).

(2.) THE respondent no. 1 is the vendor and owner of the firm known as Apsara Agency dealing in wholesale business. The respondent no. 2 is the nominee and Manager of the firm "kishan Products", Bangalore. The respondent no. 3 is the manufacturer firm. The case of the petitioner Food Inspector is that he along with Panchwitnesses visited the firm of the respondent no. 1 on 20-7-1993 at 11. 30 a. m. and in presence of Panchwitnesses and purchased three sealed bottles each of 500 grams Kishan Tomato Ketchup by way of samples after giving requisite notice to the respondent no. 1 and also paid the price and obtained the cash memo for the same. It is further his case that samples were collected by following the due procedures of sealing, fastening, labelling etc. and forwarded t to the Public Analyst, Rajkot ,for analysis and report. On receipt of the report of Public Analyst dated 19-8-1993 through the Local Health Authority wherein it was opined that in contravention of proviso of Rule 32 (e) of PFA Rules, 1955 sample of tomato Ketchup (Kishan) is misbranded under Section 2 (ix)K of PFA Act, 1954, a complaint was filed against the respondent nos. 1, 2 and 3 of having committed the said offence in the Court of the learned Chief Judicial Magistrate, Bhuj, Kachchh on 21-4-1994 which was numbered as Criminal Case no. 1029 of 1994. In this criminal case, the accused gave an application Exh. 49 for being discharged under Section 245 of the Criminal Procedure Code and the learned Chief Judicial Magistrate passed the impugned order dated 19-9-2000 relying on the judgment rendered in the case of Dwarka Nath and Anr. vs. Municipal Corporation of Delhi reported in AIR 1971 SC 1844 discharging the accused by holding that the law relating to misbranding as contained in Rule 32 (e) as ultra vires being beyond the rule making power of the Government conferred by Section 23 (1) of the Act. The learned Judge also observed that the Rule 32 (e) as it stood before 30th April, 1989 and the amended Rule 32 (e) which came into force with effect from 30th April, 1989 are identical. It is against this order of the learned Chief Judicial Magistrate that the present petitioner has knocked the doors of this Court by way of this Revision.

(3.) HEARD learned Advocate Mr. Nalin Thakkar for the petitioner (original complainant ), learned Senior Counsel Mr. P. M. Thakkar for the respondent nos. 1 to 3 and learned A. P. P Mr. K. P. Raval for the State.