NAGAR SWASTHYA ADHIKARI Vs. LALLAN

JUDGEMENT

(1.) HEARD Sri Sri Ram Pandey, learned counsel for the appellant - Nagar Swasthya Adhikari, Kanpur. Notices had been issued to the opposite party and the same is reported to have been served vide office report dated 29th March, 1982. The cause list shows the name of Sri P.N. Mishra as counsel for the opposite parties. In the aforesaid circumstances, the service being complete on the opposite party, this Court is now proceeding to dispose of this appeal as the matter has been taken up on Friday the last day of the weekly list assigned to this Court. No one has appeared for the respondent even in the revised call. This appeal raises a very short question in relation to the appeal filed by the opposite party that was allowed by the court below setting aside his conviction by the Metropolitan Magistrate Kanpur under Section 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months rigorous imprisonment and a fine of Rs. 1,000.00 or in default to undergo three months further rigorous imprisonment.

(2.) THE opposite party was charged under the aforesaid offence and upon having been tried the Metropolitan Magistrate, Kanpur convicted the respondent vide judgment and order dated 20.9.1980 with the aforesaid sentence to be undergone by him. The respondent preferred an appeal and the learned Vth Additional District & Sessions Judge, Kanpur reversed the said conviction solely on the ground that the report of the Public Analyst, Dr. S.B. Singh could not be read in evidence as he was not duly notified and authorized by the State Government to act as a Public Analyst for the region concerned within which Kanpur District fell. The learned Judge relied on the decision of a learned Single Judge of this Court in the case of Hanif Vs. State of U.P. Criminal Revision No. 1504 of 1980 decided on 2nd February, 1981. Aggrieved, the Nagar Mahapallika has preferred this appeal questioning the correctness of the said order of the court below on the ground that the judgment on which reliance had been placed by the learned Lower

(3.) CONSEQUENTLY the decision in the case of Hanif Vs. State of U.P. (supra) was overruled and it was found that Dr. S.B. Singh had the authority to analyze the samples and accordingly the said evidence was admissible for the purpose of trial. Consequently, in view of the said opinion expressed by the Division Bench, the judgment under appeal cannot be sustained. Accordingly, the appeal is allowed. The judgment and order of acquittal dated 11th June, 1981 passed by the learned 5th Additional District & Sessions Judge is set aside and the matter is remitted back to the court below to proceed to hear the appeal on merits and dispose of the same in accordance with law as expeditiously as possible after putting the respondent to notice. It is to be noticed that this appeal has been allowed without the assistance of the learned counsel for the opposite party and therefore it shall be open to the opposite party to apply for bail pending appeal before the court below as and when the matter proceeds after receipt of the records from this Court. The court below shall hear out the appeal and shall consider allowing the opposite party to remain on bail during hearing if he responds to the notice. In case the respondent accused fails to get his presence ensured, it shall be open to the court below to take all necessary steps after making enquiries about his present whereabouts.