STATE OF MAHARASHTRA Vs. JETHALAL DEVSHI

JUDGEMENT

(1.) These two Revision Applications have been preferred by the State of Maharashtra, against the Order of the Metropolitan Magistrate, 17th Court, Mazagaon, Bombay, discharging the accused. A common judgment has been written by the learned Magistrate, and the Revision Applications can also be disposed of by a common judgment.

(2.) The respondents in both the Revision Applications are the same. The 8th respondent is a firm of Messrs. Jethalal Nemchand and the other seven respondents the partners of that firm. Food Inspector Bhojraj visited this firm on 9-1-1973 at about 3 p.m. and purchased four samples of chilly seeds of different varieties. The two Revision Applications arise out of two samples : one of chilly seeds (Ghati) and the other chilly seeds (Punjab), collected for the purpose of analysis. The report of the Public Analyst, Exhibit F in the Court below, shows that on visual examination, living weevils and living larvae were present in the samples, and as such the Public Analyst expressed opinion that the samples were adulterated under section 2(i)(f) of the Prevention of Food Adulteration Act, 1954. After obtaining the sanction for prosecution the respondents were proceeded against. Before framing of the charge, Food Inspector Rajbhoj examined himself and produced the documents on record. At that stage, Assistant Police Prosecutor closed his evidence before the charge. Subsequently, the matter were kept for arguing whether the charge be framed and the learned Magistrate by writing the impugned judgment, came to the conclusion that there was no sufficient material to frame a charge. Consequently, the accused came to be discharged.

(3.) Aggrieved by that decision, the State has come in revision. According to Mr. Deshmukh for the revision petitioner, the learned Magistrate has assumed a proposition that a charge ought not to be framed unless there is certainly of conviction. There is an error in that reasoning and since there was some prima facie material, the charge ought to have been framed although after the fuller trial, the accused may come to be acquitted. A reading of the judgment would show that the learned Magistrate was influenced by the argument that the accused were not dealing in chilly seeds as such, and hence no prosecution could have been filed against them for sale of the chilly seeds. He also approved the argument that if living weevils and living larvae were visually seen, they ought to have been seen by the Food Inspector at the time the sample was collected, and, in much as no such reference is made by the Food Inspector either in his deposition or in any of the documents prepared by him that cannot be taken as satisfactory evidence to prove the guilt. The learned Magistrate has also approved the argument that Rules 17 and 18 of the Prevention of Food Adulteration Rules, were not complied with.