AWADH PRASAD Vs. STATE

JUDGEMENT

(1.) THE petitioner has been sentenced to one month's rigorous imprisonment and a fine of Rs. 200, in default to undergo further rigorous imprisonment for one month under Section 273 of the Indian Penal Code. THE allegation against the petitioner was that he had kept some mustard oil in his shop which was adulterated with agrimony oil for the purpose of sale to the public for consumption. A sample of this oil was taken and sent to the chemical examiner, who found that it was adulterated with agrimony oil. THE petitioner was then, on a complaint lodged, summoned under Section 3 of the Bihar and Orissa Food Adulteration Act. THE particulars of the offence were then explained to him and he pleaded not guilty. THE procedure adopted by the magistrate was that for a summons case. THE magistrate, finding that it had not been established by the prosecution that the Bihar and Orissa Food Adulteration Act had been made applicable to village Ramgarhwa, acquitted the petitioner of the offence under Section 3 of the Bihar and Orissa Pood Adulteration Act. THE magistrate, however, convicted the petitioner under Section 273 of the Indian Penal Code.

(2.) THE lower appellate Court appears to have been under a misapprehension that the petitioner was also summoned under Section 273 of the Indian Penal Code. THE order-sheet of the magistrate, which I find on the record, shows that the petitioner was summoned only under Section 3 of the Bihar and Orissa Pood Adulteration Act. Of that Offence the petitioner has been acquitted, as it had not been established that the said Act had been made applicable to village Ramgarhwa. THE order-sheet of the magistrate is entirely silent as to whether it was ever explained to the petitioner the particulars of the offence punishable under Section 273 of the Indian Penal Code. In a summons case, when the accused is brought before the magistrate, the particulars of the offence of which he is accused shall be stated to hjm and he shall be asked if he has any cause to show why he should not be convicted of it. THE particulars of the offence which had been stated to the petitioner when he was brought before the magistrate concerned were particulars of offence punishable under Section 3 of the Bihar and Orissa, Food Adulteration Act. No particulars of the offence punishable under Section 273 of the Indian Penal Code were stated to him nor was he asked to show cause as to why he should not be convicted for it. Under Section 3 of the Bihar and Orissa Food Adulteration Act, whoever sells or offers for sale or exposes for sale or manufactures for sale any food which is not genuine, is liable to be punished. That is to say, the question of knowledge or having reason to believe that the food is not genuine does not arise. On the other hand, under Section 273 of the Indian Penal Code, whoever sells or offers or exposes for sale as food or drink any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, is liable to be punished. In this case, therefore, it was absolutely necessary to explain the particulars of the offence under Section 273 of the Indian Penal Code to the petitioner in order that he may have an opportunity of showing to the Court that whatever the condition of the oil may have been in his shop, the circumstances disclosed by him would establish that he neither knew or had reason to believe the same to be noxious as food. In my opinion, the procedure adopted by the Courts below in convicting the petitioner under Section 273 of the Indian Penal Code in the circumstances of the present case was entirely illegal.THE application, therefore, must be allowed and the conviction and sentence is set aside.