S T SWAMI Vs. AMRITLAL M JANI

JUDGEMENT

(1.) By this Revision Application the original complainant challenges the order of the learned Special Judicial Magistrate, F.C., Poona Municipal Corporation Poona Court, discharging the accused-respondent under section 253(1) of the Criminal Procedure Code, 1898. The facts which are not in dispute are briefly these.

(2.) The accused is doing business in poona. On 8th March, 1973, 600 grams of sample of the groundnut oil was purchased by Mr. Swami, the Food Inspector of the Poona Municipal Corporation for analysis. After following the prescribed proceeding the sample was sent to the Public Analyst who, by his report Ex. 12 opined, that the sample was not of groundnut oil and that in fact it was of safflour oil and therefore misbranded under section 2(ix)(c) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). After receipt of the said report the concerned papers and the report were placed before the Health Officer for sanction. The Health Officer endorsed below the report Ex. 12, about giving consent for the prosecution of the accused. Thereafter on 3rd May, 1973 the Food Inspector filed a complaint against the accused for an offence under section. 16(1)(a)(i) read with section. 7(ii) and section 2(ix)(c) for the offence of misbranding. A process being issued the accused appeared and made an application on 22nd November, 1973 requesting the Court to send the sample which was given to him, to the Director of the Central Food Laboratory for his analysis and report. The learned special Judicial Magistrate granted that application and observed that the sample should be sent to ascertain as to whether the sample contained groundnut oil or any other oil. The Director of the Central Food Laboratory (hereinafter referred to as the Director), after analysing the sample and giving out the date of the analysis found out, that sample was in fact of groundnut oil and that it was, however, adulterated. This certificate was received on 15th January, 1974. Inspite of the said certificate being received, the complainant Food Inspector who was examined before charge on 18-1-1974 did not at all refer to this certificate of the Director. The defence, however, in the course of the cross-examination before charge brought on record the certificate of the Director. To the other question put in cross-examination the Food Inspector conceded that safflour oil is superior to groundnut oil. Thereafter the Advocates were heard by the Court on the question of framing a charge. Having regard to the provisions of the proviso to sub-section (5) of section 13 of the Act, it had to be conceded, that the prosecution had not established it case of the sample being misbranded, but it was, however urged on behalf of the prosecution, that view of the certificate of the Director, the Court should frame a charge against the accused for the offence of selling adulterated groundnut oil as distinguished from misbranded groundnut oil. This submission on behalf of the prosecution was repelled by the learned Special Judicial Magistrate. The first ground on which he repelled by the learned Special Judicial Magistrate. The first ground on which he repelled the submission was, that since the prosecution had come up with a specific case for an offence of misbranding it cannot be allowed to change its case to one of adulteration, as that would prejudice the defence of the accused. His next reasoning was that since the Director was asked only to express his opinion as to whether the sample though of groundnut oil, was adulterated. Therefore, observed the learned Special Judicial Magistrate, that he will have to ignore the uncalled for opinion of the Director about the sample of oil being adulterated. If that is so, observed the learned Special Judicial Magistrate to a charge for the offence of adulteration of food could not be framed. His next reasoning was that since the consent under section 20 of the Act, was for prosecution for the offence of misbranding, if he framed a charge for adulteration on the basis of the certificate of the Director, he refused to accept to the request of the prosecution was, that since the Food Inspector had conceded that safflour oil was superior to groundnut oil, it would be a gravesty of Justice to prosecute the accused for having sold a better variety than what was asked for. It is in that view of the matter that the learned Special Judicial Magistrate passed an order of discharge of the accused under section 251 of the Code of Criminal Procedure.

(3.) The correctness of the said order of discharge is challenged by the Food Inspector original complainant. Mr. Aggarwal, the learned Advocate who has appeared on behalf of the complainant has assailed the order of the learned Special Judicial Magistrate on the ground, that having regard to the provisions of the proviso to sub-section (5) of section 13 of the Act, the facts stated in the certificate of the Director being final and conclusive; and the provision of section 254 Cr. P.C. provide that a Magistrate shall frame a charge if he has ground for presuming that the accused has committed an offence, and the provisions of section 230 of the Code of Criminal Procedure make it obligatory on the Magistrate not to proceed untill sanction has been obtained by the prosecution for the new offence that has been disclosed by the certificate of the Director, the learned Special Judicial Magistrate was in error, in proceeding to pass an order of discharge. Mr. Aggarwal, therefore, submits that the proper course for the Magistrate would have been to stay the proceedings and ask the prosecution to secure the consent under section 20 of the Act for framing a charge against the accused for the offence of adulteration as is disclosed by the certificate of the Director.