SIDHULAL Vs. STATE

JUDGEMENT

(1.) This revision application is directed against the applicant's conviction under section 7 (1) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and the sentence of six months' R.I. and a fine of Rs. 1000.00 with four months R.I. in default.

(2.) In the trial Court, the prosecution evidence was closed on 29-1-1975 and thereafter the accused was examined on 1-7-1975. After he was called to enter upon his defence, it was stated by the accused that he has to adduce evidence in defence, which, he promised to keep present. The trial Court, therefore, adjourned the trial to 15-7-1975. In the meantime, the accused paid process for one Nandram for being summoned as defence witness on 15-7-1975. The witness was served and was to remain present on 15-7-1975, on that date, however, an application was made on behalf of this witness for exemption from appearance on that date on certain grounds. The accused was also then absent. The learned Magistrate exempted the accused from appearance on that date and for the reasons given by the witness in his application he was also exempted from appearance on that date. The trial was adjourned to 25-7-1975 with an order that the defence witness should be kept present. On 25-7-1975, the defence witness was absent and it was observed that he was also not kept present by the applicant. With this observation, the defence evidence was closed and the case was decided. An appeal by the accused was dismissed by the learned Sessions Judge. In the appellate Court also, it was observed that the accused was given due opportunity to lead evidence in defence but since he did not avail of it, no grievance could be made about it in the appellate Court. On merits also, it was found that the accused had sold milk to the Food Inspector and since the milk sold was found to be adulterated, he was rightly convicted.

(3.) It is clear that for 15-7-1975 the accused had taken necessary stem to get his witness summoned. He had paid the process fee also but the witness remained absent and submitted an application through a counsel to exempt him from appearance on the ground that he was not well. The trial Court allowed this application and adjourned the trial on 25-7-1975. No fresh summons was issued either by the Court or at the instance of the accused but tie fact is that the accused had stated before the trial Court that he wants to produce defence evidence and if that was so, it was the duty of the trial Court to enforce the attendance of the witness. If process fee was required to be paid according to law, then the accused could have been called upon to pay it, otherwise process should have been issued without payment of process fee. In any event, the trial Court was not justified in closing the defence evidence as there was no default on the part of the accused. As the trial was concluded without giving due opportunity to the accused to lead any defence, the trial could not be said to be good in law. On this ground alone, the order of conviction passed against the accused is hereby set aside.