RAVI KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision under Ss. 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') is directed against that part of the judgment and order dated 5-8-1997 passed by Shri Daroga Prasad, 3rd Additional Sessions Judge, Gaya in Cri. Appeal No. 13/96/27/97 whereby while allowing the appeal and setting aside the judgment of conviction of the petitioners passed by the S.D.J.M., Gaya in G.O. Case No. 25 of 1993/Tr. No. 231 of 1996 under S. 16(1)(a)(i) of Prevention of Food Adulteration Act (in short 'the Act') sentencing each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- each in default of rigorous imprisonment for two months (sic) be remanded the aforesaid case for fresh trial to the trial Court in accordance with law.

(2.) The prosecution case, in short, is that at about 4.10 p.m. on 25-8-1992 the Food Inspector (P.W. 6) along with another Food Inspector (P.W. 2) visited the shop of petitioner No. 2 and purchased 600 grams of Mung Dal for sample after complying with the necessary formalities. The aforesaid sample of Mung Dal was sent to the Public Analyst who found the sample adulterated due to the presence of artificial colouring matter. Accordingly, a prosecution report was prepared. The defence of the petitioners before the learned S.D.J.M. was of false implication and the petitioner, Durga Prasad, denied his presence at his shop at the time of the alleged purchase of the sample. In all six P.Ws. were examined in this case. The learned trial Court by his judgment and order aforesaid convicted the petitioners in the manner indicated above.

(3.) In this petition it has been contended that the original report of the Public Analyst was never produced in the Court. Thereby the mandatory provisions of Rule 3 of the Prevention of Food Adulteration Rules was violated. The prosecution was sanctioned by the Civil Surgeon which was not in accordance with law. The trial of the petitioners was a nullity in view of the provisions contained in S. 326 of the Code. Against the judgment of conviction and sentence the petitioners filed the aforesaid criminal appeal which was heard by the learned Additional Sessions Judge who passed the order for remand and re-trial though setting aside the conviction and sentence of the petitioners. It is against the said or that the present revision application has been filed in which it has been contended that the case could not have been remanded back to the trial Court since the mandatory provisions of law as contained in S. 326(3) of the Code were not complied with. On these ground amongst others it has been contended that the impugned order be set aside.