DEBI PRASANNA Vs. ABDUL MANNAN

JUDGEMENT

(1.) This application under section 401 and section 482 of the Code of Criminal Procedure, 1973 arises out of an impugned order dated 28-5-1980 passed by the learned Judicial Magistrate, Jangipur (District Murshidabad) in G.R. Case No.33C of 1977 (T.R. 66 of 1977) by which the learned Magistrate discharged the accused opposite party No.1 on the ground that the notice under section 13(2) of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954), (hereinafter referred to as the said Act) had been sent to the accused before the institution of the prosecution against him and not "after the institution of the prosecution" against him.

(2.) The facts of this case may be shortly stated as follows : It is the prosecution case that the present petitioner inspected the shop of the accused opposite party No.1 on 29-11-1976 situated at Goffurpur Ward No.2 under Jangipur Municipality. The petitioner is the Food Inspector appointed by the State Government under section 9 of the said Act for the local area of the said Municipality. The petitioner found cocoanut oil stored/exposed for sale. Thereupon a sample was purchased by the petitioner from the shop of the accused and after due observance of the legal formalities as per the provisions of the said Act, as amended in 1976, one part of the sample was sent to the Public Analyst and the remaining two parts to the Sub-Divisional Health Officer, Jangipur for future reference. The Public Analyst in his report No.472 dated 29th December, 1976 opined that the said coconut oil was adulterated. After obtaining the said report the Sub-Divisional Health Officer, Jangipur sent a notice under section 13(2) of the said Act and a copy of the said report of the Public Analyst dated 29-12-1976 to the accused on 4-1-1977. The said notice and report was sent by registered post under acknowledgement due and was received by the accused on 8-1-1977. The present proceedings against the accused were instituted on 7-1-1977.

(3.) On 18-2-1980, the date fixed for evidence, the accused for the first time filed a petition fur discharge complaining that since the notice under section 13(2) of the said Act had not been sent after institution of the prosecution against him but had been sent before the institution of the prosecution, the provisions of section 13(2) of the said Act had not been complied with and by such non-compliance he had suffered prejudice.