NEMICHAND Vs. STATE

JUDGEMENT

(1.) This revision petition under Section 397/401 of the Code of Criminal Procedure 1973 preferred by the Petitioner/accused is directed against an order dated 6th December 2004 passed in criminal case No. 490/2003 by the Judicial Magistrate First Class, Gwalior (M.P.), dismissing thereby the application under Section 245(2) of Code of Criminal Procedure of the Petitioner-accused for his discharge from the alleged offence, the stage of framing charge.

(2.) In brief, the facts of the case are that on 21st January 1992, from the shop of Petitioner situated at Gwalior Trade Fair Ground, the Food Inspector duly authorized, purchased sample of 450 gm. of ' Vital ' Pure Refined Cooking oil (Soya Oil) from open ten of 10 Kg. for the purpose of examination under Prevention of Food Adulterations Act. The sample was divided into three parts and were sealed as per Rules/Law. One sample was sent to State Food Laboratory Sagar. The Report from Public Analyist State Food Laboratory reveals that the sample contravenes the Rule 32(a) of the PFA Rules 1955. After completing all formalities, the complaint was filed before the court of Judicial Magistrate First Class, Gwalior.

(3.) The contention of the learned Counsel for the Petitioner/ accused is that the impugned order dated 06th December 2004 is against the law/rules and the principles of natural justice. The provisions of Rule 32(a) of the Rules 1955 are not applicable to present case because the sample was collected from the open tin, containing 10 Kg oil. It is submitted by the counsel that there was no chance for the Petitioner-accused to show the name, address of the manufacturer of the sold item. On such evidence, if not rebutted, the accused can not be punished and there was no justification to continue the criminal proceeding against the accused. Hence, it is prayed for discharge the Petitioner-accused, at previous stage of charge.