STATE OF MAHARASHTRA Vs. IBRAHIM RAJAKHAN NADAT

JUDGEMENT

(1.) THESE four matters arise out of two judgments and order passed by the learned Judicial Magistrate, First Class, Court No. 2, Kolhapur dated 31st December, 1973 in Criminal Case No. 1244 and 1245 of 1973. All these appeals are disposed of by this single judgment. The learned Judicial Magistrate, First Class, disposing of the complaint filed by one Parulekar, the Food Inspector of the Kolhapur Municipal Corporation, against the accused Ibrahim Rajekhan Nadat, has, after framing the charge against the accused and after the evidence having been led before him, disposed of the two complaints, one in respect of Suttar Feni and another in respect of Badami Halva under the Prevention of Food Adulteration Act, 1954, by coming to the conclusion that there was non-compliance of section 20 of the said Act, which resulted into the trial without jurisdiction and as such he could not decide the case. In his opinion, he had no other alternative, but to quash the proceeding and to release the accused. He has further held that the prosecution against the accused was without jurisdiction as there was no proper sanction for the complaint filed before him. He has, however, made it clear in his judgment that as he had no jurisdiction, he could not decide the matter and he was not deciding the matter on merits. But, while passing the order, he has stated that the proceedings against the accused are quashed and the accused was released. His bail bond stood cancelled and the accused was set at liberty. Mr. Deshmukh appearing for the State and Mr. Heble appearing for the complainant in Criminal Appeals Nos. 775 and 776 of 1973 submitted that the judgment and order is erroneous and that the learned Magistrate having once framed the charge against the accused and allowed the evidence to be led and having heard the whole matter had no jurisdiction to quash the proceedings and release the accused. Briefly stated the facts are that the accused Ibrahim Rajekhan Nadat on 18th July, 1972 at about 10.30 a.m. was found in possession of Badami Halwa, which was found to be adulterated and which was kept for sale and thereby he committed the offence under section 2(1)(j) read with section 7(i) and punishable under section 16(1) of the said Act. Parulekar, the complainant was appointed as a Food Inspector by the Municipal Council, which was subsequently converted into the Municipal Corporation. The accused was running a shop of eatables opposite the S.T. Stand of Kolhapur by name "Bombay Farsana Kendra". The complainant along with the witnesses and the Assistant Health Officer Shri Nageshkar visited the shop of the accused on 18th July, 1972 at about 10.30 a.m. in order to take samples of Badami Halwa and Suttar Feni. The complainant accordingly took the samples of Suttar Feni and Badami Halwa of 450 gms. and 600 gms. respectively and gave the necessary price therefore to the accused and he obtained the receipt for the same. The complainant thereafter issued notice to the accused about his intention to send the samples to the Public Analyst for analysis. The complainant thereafter divided these samples into three bottles equally and then sealed and labelled them as per the procedure under the said Act. The formalities under the Act were carried and the sample of each food article was sent to the Public Analyst. Parulekar received the report of the Public Analyst which was at Ex. 14 by which it was found that sample at serial No. 52 of Suttar Feni contained a non-permitted coal tar viz., Orange II and as such adulterated under section 2(i)(j) of the Act. According to the prosecution, the complainant then moved the Kolhapur Municipal Council to grant sanction to prosecute the accused. It was the prosecution case that the Kolhapur Municipal Council on 13th December, 1972 gave the necessary consent to file the prosecution against the accused, by its Resolution No. 662 dated 13th December, 1972. A copy of the said resolution is at (Ex. 16), Parulekar then filed the complaint against the accused for breach of the provisions of the said Act. The defence of the accused was the he had received the material just before the incident and that he did not know what was the quality of the said food articles. It was the defence of the accused that he had purchased it from Mahim Halva Bhandar, Pune. The accused further stated that he was not ready and willing to sell the food products and wanted the complainant to note down his contentions in the Panchanama. The complaint which appears in the Paper Book at page 11 was filed on 4th March, 1973. In the said complaint, the complainant Parulekar mentioned the fact that he was appointed as a Food Inspector by the then Kolhapur Municipal Council as per section 9 of the said Act and after narrating the facts as to how Suttar Feni was found in the shop of the accused and after taking the sample, he sent the sample to Public Analyst, he stated in para 6 that he received the report of the Public Analyst (R. No. 18986 dt. 16-9-1972), as per Rule 7(3) of the Act and that by that report, it was found that the sample No. 2 contained a non-permitted coaltar die, viz., Orange II and is adulterated. At the bottom of the complaint in para 8 it has been stated that in this connection the documentary and oral evidence relied upon were as follows :