SAD ALI KHAN Vs. STATE OF W.B.

JUDGEMENT

(1.) The present matter arises out of an application under sections 397/401 read with section 482 of the Criminal Procedure Code. The relevant facts are the following : The present petitioner - a grocer - was convicted by Shri Ajay Nath Sen, Sub-Divisional Judicial Magistrate, Ghatal in case No. 266-C/79 under section 16 (i) (a) (i) of the Prevention of Food Adulteration Act and sentenced to undergo 3 months' rigorous imprisonment and to a fine of Rs. 500.00 on allegation of selling or keeping for sale adulterated mustard oil. Shri H.R.K. Gajra, Additional Sessions Judge, III Court, Midnapore who heard the appeal being Criminal Appeal No. 32 of 1982 from the date of conviction and sentence set aside the same and sent the case back on remand to the learned trying Magistrate for a proper decision in accordance with law and in the light of the observations in the body of the judgment. Hence, this application for revision.

(2.) It is urged from the side of the petitioner-appellant that since even the learned Additional Sessions Judge found the evidence deficient and noticed other fatal defects in the case, he should have simply allowed the appeal and acquitted the petitioner instead of sending the case back on remand to make it possible for the prosecution to fill up the gaps in evidence and remove the other defects.

(3.) The defects noticed by the learned Additional Sessions Judge and the remedial procedure as suggested by him are the following:-