STATE OF MAHARASHTRA Vs. AHERBHAI ABDEALLY KHINKHADWALA

JUDGEMENT

(1.) THIS appeal has been preferred by the State from an order of acquittal passed by the learned Metropolitan Magistrate 36th Court, Bombay Central, Bombay, by which the learned Magistrate gave the benefit of Section 95 of the I. P. C. to the accused who were prosecuted for an offence punishable under the Prevention of Food Adulteration Act. The two accused were found selling hard boiled sugar confectionery which is covered by Rule A. 25. 01 of the Rules framed under the Act. Before even the prosecution led any evidence in support of its case, the accused filed an application asking for the benefit of Section 95 of the I. P. C. This application unfortunately was granted by the learned trial Magistrate on the ground that the accused were only sellers of confectionery purchasing them for others. It must be stated straightway that Section 95 shall not be applied and is not applicable to any offence under the Prevention of Food Adulteration Act. A slight deviation from the standard fixed under the rule framed under the Act is not going to cause slight harm as contemplated Under Section 95 of the I. P. C. The learned trial Magistrate totally misdirected himself regarding the scope of Section 95. It was also an extraordinary procedure which the learned trial Magistrate adopted by granting an application by the accused even before the prosecution evidence was led. The order of acquittal passed for these reasons is therefore patently wrong and is liable to be set aside.

(2.) AGGRIEVED by the said order of acquittal, the State has preferred this appeal. Respondent No. 2, who was original accused No. 2, could not be served in the normal course. Therefore the appeal as against him has been separated and kept on the dormant file. This appeal is therefore heard against accused No. 1 only and for him Mr. Meghani the learned advocate appeared.

(3.) MR. Meghani, however, sought to support the order of acquittal on other grounds by contending that what has been sold by the accused is covered by the proviso to Section 14 of the Act. This is a matter for the trial court to investigate and since after setting aside the order of acquittal I am remanding the case to the trial Magistrate for trial, Mr. Meghani, will be free to put forth all points of defence as may be necessary. The order of acquittal therefore passed by the learned trial Magistrate, 36th Court, Bombay Central, Bombay, in Criminal Case No. 790/fa of 1973, is set aside in so far it relates to accused No. 1. The case is remanded to the trial court for trial in accordance with law. The accused shall be released on the same bail by the learned trial Magistrate, after he appears before the learned Magistrate on or before April 18, 1977.