KASHMIRI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE learned Chief Judicial Magistrate, Alwar convicted the accused petitioner Under Section 7/16 of the Prevention of Food Adulteration Act (for short the P.P. Act) and sentenced him to undergo one year's simple imprisonment and to pay a fine of Rs. 3,000/ - or in default of payment of fine to further undergo three months simple imprisonment. The accused petitioner filed an sppeal against the aforesaid conviction and sentence before the learned Additionel Sessions Judge and the learned Addl. Sessions Judge Under his judgment dated 23rd July, 1985 partly allowed the appeal. While maintaining the conviction of the accused petitioner as aforesaid sentenced the accused petitioner to undergo six months rigorous imprisonment and to pay a fine of Rs. 1,000/ - or in default of payment of fine to further suffer one months simple imprisonment.

(2.) THE facts of the case are contained in detail in the judgments of the courts below and need not be given here and suffice to say that the food, inspector Shri R P. Tokda PW 3 had purchased milk for analysis from the shop of the accused petitioner on 30th November, 1976. 660 ml. of milk was purchased and was devided into three equal parts and in each part of sample 18 drops of forme line was dropped. The samples were duly cocoked, wrapped and sealed. One sample was sent to the Chief Public Analyst (for short C.P.A.) where it reached on 1st Dec. 1976 i.e. on the next day the sample was taken. The public analysed the sample and found that the sample was containing total solid 15.1% i.e. fat 6. 7%, solid non fat 8.4%, test of sugar negative and test for strach negative. In the opinion of the CPA, the sample of milk is adulterated as it contains 6.7% of added water. A copy of the report of the C.P.A. was sent to the accused petitioner and thereafter, after receiving the consent of the competent authority on 21st July, 1977 a charge -sheet was. filed against the accused petitioner on 16th July, 1978.

(3.) I am of the opinion that there is a very serious lacunas which was revealed on the perusal of the file of the trial court. The cases Under the PF Act are to be tried and the procedure applicable to the police report is not applicable. In other words the cases Under the PF Act are triable as complaint case and the procedure prescribed for the trial of the complaint cases is applicable. A look at Section 20 of the PF Act will show that no prosecution for an offence Under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order by the Central Government or the State Government. A look at Chapter XIX, Cr.PC will show that the procedure for trial of warrant cases by the Magistrate is prescribed therein. The procedure is prescribed for cases instituted on police report and instituted otherwise on general report. An offence Under Section 16 of the PF Act of the present nature is punishable with imprisonment which may extend to three years and with fine which shall not be less than ten thousand rupees and the minimum sentence prescribed is six months but if the case falls Under Proviso (i) or (ii), the court for adequate and special reasons to be mentioned in the judgment has powers to impose sentence which shall not be less than three months and shall be less than two years. The offence, therefore, Under Section 7/16 of the PF Act is triable as a warrant case. In trial of the cases by Magistrate otherwise than on police report the relevant Sections are Section 244 and onwards which are Under heading 'B' - cases instituted otherwise than on police report. Under Sub -section (1) of Section 244, Cr.PC it is the duty of the Magistrate to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Under Sub -section (1) of Section 245 if, upon taking all the evidence referred to in Section 244 the Magistrate cons -ders, for reasons to be recorded, that no case against the accused has beein made out which if unrebutted, would warrant his conviction, the Magistrate shall discharge the accused. Under Section 246(1) if when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable Under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. Under Sub -section (4) of Section 246, Cr.PC, if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted Under Sub -section (3) he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether be wishes to cross -examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. Therefore, in warrant cases the procedure is to be adopted is first to refer such evidence of the prosecution and only thereafter to frame a charge If charge is framed then an opportunity should be given to the accused if he wants to further cross examine any witness This procedure was not adopted in this case and the learned Magistrate framed the charge and tried this case as if it was a case instituted upon a police report.