MOHAN Vs. STATE

JUDGEMENT

(1.) The applicant was prosecuted under Sec. 7/16, Prevention of Food Adulteration Act. The trial court on the basis of the evidence led by the prosecution found the applicant guilty under Sections 7/16 of the Act and sentenced him to one years R.I. and to a fine of Rs. 2,000.00. Feeling aggrieved, an appeal was preferred in which the conviction of the applicant under Sections 7/16 of the Act has been maintained but the sentence has been reduced from one years R.I. to three months R.I. and the fine of Rs. 2,000.00 has been reduced to Rs. 1,000.00.

(2.) In the present revision, learned counsel for the applicant wanted to argue the case on merits. When the learned counsel for the applicant was confronted with the observations of the Sessions Judge to the effect that the counsel for the appellant had conceded that he had no case on merits, a statement was made by Shri N.D. Ganguli that the local counsel who had argued the appeal has instructed him that he had in fact argued the appeal on merits and had made no such concession as referred to by the Sessions Judge. The learned counsel for the applicant was, therefore, allowed time to file affidavit of the local counsel for that purpose. An affidavit of Shri Brij Nandan Upadhyaya, Advocate, has been filed and in paragraph 4 of the affidavit, it has been specifically stated that the statement of the fact that the learned counsel frankly conceded that he had no case on merits, is wholly incorrect. The learned counsel for the State has frankly conceded that in such state of affairs the appellate court may be asked to decide the appeal afresh. In my opinion, in view of the affidavit filed by Shri Brij Nandan Upadhyaya, Advocate, Shri A.S. Srivastava, Sessions Judge, Varanasi, should re-hear the appeal on merits again as the appeal has not been decided on merits.

(3.) The judgment of the Sessions Judge dated 14-7-1980 is set aside and he is directed to decide the appeal afresh in accordance with law. The office will send back the record of the case immediately to the court of the Sessions Judge, Varanasi. The office will also ensure that alongwith the record of the case the affidavit of Shri Brij Nandan Upadhyaya, Advocate, filed in this Court is also sent to the court of the Sessions Judge, Varanasi and a copy of the affidavit may be retained on the record of this Court. Case sent for retrial on merits.