LAWS(ALL)-1990-3-46

LACHMAN DAS Vs. STATE OF U P

Decided On March 21, 1990
LACHMAN DAS Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) PALOK Basil, J. The facts in the present petition under Section 482, Cr. P. C-lie in a narrow compass but are interesting. On 25-7-1975 requisite quantity of Sugandhit Supari was purchased by the Food Inspector from Lachman Das applicant. On a report of the Public Analyst that some prohibited saccharine was found in the sample, a complaint for prosecuting Lachman Das under Section 7/16 of the Prevention of Food Adulteration Act was filed. On commencement of the proceedings before the Magistrate, the statement of P. W. 1, the Food Inspector, and the statement of the accused paper ant were recorded. In his statement applicant Lachman Das raised an objection that the prosecution was not maintainable in view of the Supreme Court decision in R. G. Pamnani v. State of Maharashtra, AIR 1975 SC 189. wherein it was held that rule 22 framed under the prevention of Food Adulteration Act were mandatory. The Magistrate after hearing the counsel for the parties, upheld the objection and directed discharge of the applicant by his order dated 19-12-77 (Annexure-C to the present petition ). The Food Inspector filed another complaint before the Magistrate on 7-7-1979 about the alleged sale of adulterated Sguandhit Supari by the applicant as noted above. The Magistrate proceeded to summon the accused on 7-7-1979. However, it was stated in the second complaint that the Supreme Court has in the meantime reconsidered its view on rule 22 and has overruled its earlier decision by a larger Bench in the case of State of Kerala v. Lamasery Mohammad, AIR 1978 SC 933. It is apparent that the Magistrate may have felt satisfied because of the said averment in the complaint and proceeded to pass the summoning order dated 7-7-1979 which is under challenge in the present petition under Section 482, Cr. P. C.

(2.) SRI Vinod Kumar Sharma, learned counsel for the applicant, raised two grounds of objection to the said summoning order. Firstly, the order of discharge dated 12-12 1977 between the parties has become final and was never challenged. The Magistrate was bound to follow the rule as then laid down by the Supreme Court. Secondly, the continuance of the second complaint based on a later ruling after fifteen years of the alleged sale in 1975 will be an abuse of the process of court. SRI B. N. LJ pithy, learned counsel for the Nagar Swasihya Adhikari, Agra, has supported the order of the Magis trate dated 7-7- 1979 on the ground that Article 141 of the Constitution of India made it incumbent upon the Magistrate to follow the later law of the Supreme Court and, therefore, he was bound to summon the accused- applicant. He reinforced his argument by adding that the order of discharge is not covered by the provisions of Section 300, Cr. P. C. and the principles of estoppels or repudiate are not applicable and, therefore, the second complaint should be permitted to proceed in accordance with law.

(3.) HOWEVER, reliance was placed by Mr. Upadhya on the decision of the Supreme Court reported in AIR 1962 SC 876 : Prenatal Nath v. Saroj Ranjan Sarkar. It has been held in the said case that and second complaint may be main tainable under certain contingencies. In this context it may be remembered that in that case before the Supreme Court a second complaint was filed because the first complaint had been dismissed in default of the complainant. But this is not the position here. Full-fledged arguments were made on the basis of law prevailing and then an order of discharge came into existence. The case of Pramatha Nath (supra) is thus not attracted to the facts of the present case.