NAGAR MAHAPALIKA Vs. SRI RAM PANSARI

JUDGEMENT

(1.) This appeal has been filed by the Nagar Mahapalika, Varanasi against the order dated 12-10-1973 of the Magistrate, First Class, Varanasi acquitting the respondent of the charge under Sec. 7/16 Prevention of Food Adulteration Act.

(2.) The prosecution case was that on 30-6-1970 at about 11 a. m. the Food Inspector had taken a sample of powdered Chilli from the shop of the respondent Sri Ram Pansari. He had purchased 450 grams of the same and had sealed it into three phials. He paid the price and the receipt for the same is Ext. Ka-2. The notice given to the respondent is Ext. Ka-1. The sample was sent to the Public Analyst, U.P. at Lucknow. The report is Ext. Ka-3. It was found that it was not according to the prescribed standard and some foreign matter too had been mixed up. The Food Inspector then submitted a report to the Nagar Swasthya Adhikari and after the sanction was obtained, a complaint (Ext. Ka-6) was filed by the Nagar Swasthya Adhikari Mahapalika, Varanasi. The complaint is in the printed form. It was filed on 1-2-1971. 22-2-1971 was the date fixed for the appearance of the accused. It appears that the case could not be taken up on that date because the learned Magistrate could not attend the court as he was busy in connection with law and order duty. But there is an endorsement that the copy of the complaint had been received by the counsel of the accused on 22-2-1971. The next date fixed was 19-3-1971. But the accused could not appear on that date. 13-4-1971 was then fixed. The accused did not appear even on 13-4-1971. An application was moved by counsel on that day for exemption of attendance from the court. It appears that the learned Magistrate was under a wrong impression that 15-4-1971 was the date fixed for the appearance of the accused when complaint was filed on 1-2-1971. An application was then moved on 17-2-1971, for sending another sample to the Director, Central Food Laboratory, Calcutta. That application was not accompanied by the treasury challan showing that the requisite fee of Rs. 40.00 had been deposited. That application was ordered to be put up for orders on 22-2-1971. However, it appears that the order of the learned Magistrate was actually passed on this application on 30-11-1971 which was to the effect that the sample be sent after the prescribed fee had been deposited. The accused did not care to deposit the prescribed fee of Rs. 40.00. He deposited the fee on 31-1-1973. The sample was then at once sent on 2-2-1973 with the covering letter of the Magistrate to the Director, Central Food Laboratory at Calcutta for analysis. The Director, however, informed the Court vide his letter dated 9-2-1973 that the sample had become highly decomposed and was unfit for analysis. The learned Magistrate then recorded the evidence of the other witness Tribuan Chaubey, Safai Havaldar (P.W.2) on 23-5-1973. The evidence of the Food Inspector S.K. Bhatia (P.W.1) had already been recorded on 22-2-1972. First statement of the accused was recorded on 7-6-1971. He had admitted that the sample had been taken from his shop. He had, however, stated that the report of the Public Analyst was suspicious and that the powdered Chilli which he was selling was not adulterated. His final statement was recorded on 21-7-1973. The learned Magistrate took the view that there was delay in filing the complaint and further delay in sending the sample to the Director, Central Food Laboratory, Calcutta. He obviously held the prosecution responsible for these laches and acquitted the accused.

(3.) Feeling aggrieved, this appeal has been filed by the Nagar Mahapalika, Varanasi after special leave was granted. Sri A. S. Srivastava, learned counsel for the respondent raised a preliminary objection that the appeal could not have been filed by the Nagar Mahapalika and it must have been filed by the Nagar Swasthya Adhikari only. In support of this contention, he has placed reliance on the case of State Vs. Baljit 1978 Allahabad Criminal Rulings, p. 93. That case is distinguishable. In that case the original complaint had been filed by the Food Inspector after obtaining sanction of the District Medical Officer of Health while the appeal was filed by the State. That would change the very nature of the case and it would become a State case from the complaint case. In the present case the original complaint was also filed on behalf of the Nagar Mahapalika, Varanasi through the Nagar Swasthya Adhikari who had actually signed. He had been authorised by the Nagar Mahapalika to file such a complaint. The appeal which was filed on behalf of the Nagar Mahapalika cannot be considered to be illegal within the meaning of Sec. 378 (4) Cr. P.C. (new).