SK HASHIM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this revision application the original accused challenges the order of the learned Sessions Judge, Aurangabad, dismissing his appeal against the order of the learned Judicial Magistrate, First Class, Aurangabad, convicting him for an offence under section 16 (1) (a) (i) read with section 2 (i) (j) and 7 (i) of the Prevention of Food Adulteration Act, 1954 read with rules, 23 & 28 of the Prevention of Food Adulteration Rules, 1955 and sentencing him to suffer R.I. for six months and to pay a fine of 1000/-. Briefly, stated the prosecution case is as under- In September 1973, the accused was conducting a restaurant called " Khaja Re staurant in Aurangatad. On 5 th September 1973, Pardeshi ( p. w, 1) the Food Inspector took sample of 500 gms. ot Jilebi from Abdul Karim, the son of the accued who being a juvenile offender whose case has been sent up to Juvenile Court The sample was sent to the Public Analyst who by his report ( Ex 24) dated 22-10-73 opined that the sample showed that there was Metanil yellow and, therefore, it was adulterated under section 2(1) (j) of the Act.

(2.) The prosecution was actually launched on 31 12-1973 On 31st March 1975, the accused made an application ( Ex 9 ) for sending the sample to the Director of the Central Food Laboratory. As the sealof the sample produced by the accused was found to be not in tact that application was rejected. That is why on that very day the accused made a second application Ex 10 with a request that the sample with the Food Inspector may be sent After examining that sample & finding that the seal thereon was in tact the learned Magistrate ordered that the sample may be sent to the Director of the Central Food Laboratory and he directed the accused to deposit the requisite amount. The accused having deposited the amount the sample was sent with a letter dated 12-8-1975. It appears that it was actually sent on 16-8-1975 The certificate of the Director in Form II was received to the effect that the sample contained added coaltar colour-metanil yellow, and orange. II, both non-permitted dyes, and, therefore, the sample of Jilebi was adulterated. The case thereafter proceeded to a trial and after the evidence of the Food Inspector was over a charge was framed and the accused pleaded not guilty to the charge and claimed to be tried.

(3.) On 10 th December 1976, the accused made an application Ex 52 that since the perusal of the record showed that the Magistrate who had sent the sample to Director had not followed the mandatory provisions of section 13(2) of the Act, it was necessary to examine the said Magistrate and he requested that the magistrate one Mr Kulkarni named therein may be summoned That application was rejected on the ground that the sample was not sent by Mr.Kulkarni but by some other Magistrate. That is why the accused made a second application Ex 54 on 15th December 1976 stating inter alia, that the name of Mr Kulkarni was mistakenly mentioned in the application Ex. 52 in as much as he had dealt with the earlier application Exs 9 and 10 and since the record showed that it was one Mr. Sheshgiri, the successor of Mr. Kulkarni who had actually sent the sample to the Director, the said Mr. Sheshgiri should be summoned as the accused wanted to prove that he had not complied with the mandatory provisions of section 13 (2) of the Act. That application was rejected on the ground that it was not necessary to call Mr. Sheshgirri inasmuch as a similar application Ex. 52 was already rejected. The case thereafter proceeded with the trial and the accused was convicted and sentenced by the learned Magistrate.