MUNICIPAL COUNCIL KOTA Vs. TILLU MAL

JUDGEMENT

(1.) THIS appeal has been preferred on grant of leave to appeal by this Court on 9th July, 1981 against the judgment of Additional Munsif and Judicial Magistrate No. 1, Kota (North) dated 6th December, 1980 by which he acquitted accused respondents of the offences under Rule 44-E read with Sec. 16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') and under Sec. 14/16 of the Act.

(2.) BRIEF facts, leading to the appeal, are that Food Inspector Shri Kan Singh Solanki went to the shop of non-petitioner Tillu Mal on 11th July, 1973 and took the sample of refined mustered oil. He took the sample in accordance with law from a sealed tin, which on analysis, was found to be adulterated. Accused Tillu Mal, after trial, was convicted and sentenced and he preferred an appeal against the same in the Court of Sessions. The learned Sessions, Judge, having found that sample was obtained from the sealed tin, acquitted him and directed that there should be a trial of accused-respondent, Ram Singh, as well from whom Tillu Mal had purchased the sealed tins. The evidence was led in the case and this time the trial Court acquitted both the accused-respondents of the offences as charged. The learned Magistrate, while dealing with the case of accused-respondent Tillu Mal, considered the proviso to Rule 44-E and found that the same had not been taken note of by the prosecution and no dates have been furnished. While dealing with the case of Ram Singh, the learned Judge considered the law about warrantee and stated that the bills which were produced before the Food Inspector clearly disclosed that there was a sealed of warrants in compliance of Sec. 14 of the Act as such Ram Singh could not be prosecuted in the case. A reason was also assigned that when offence could not be proved because of failure to comply with the proviso to Rule-44e, case could also not succeed against respondent No. 2. It is against this order that an application for leave to appeal was filed which was granted by this Court.

(3.) LEARNED counsel for the appellant also after hearing the arguments of learned counsel for the respondent had to agree that some of the grounds raised in the petition are based on amended law, obviously same could, not be taken note of and it is difficult for me to state at this stage as to whether the Court granting leave would have granted the same or not. In Hari Narain vs. Badri Das (2), their Lordships of the Supreme Court revoked the leave granted on the ground that the facts mentioned in the memo of appeal were mis-leading. It was submitted before their Lordships that the grounds which are mis-leading were argued at the time of granting special leave to appeal but their Lordships of the Supreme Court still revoked the leave. For that reason alone, the leave could be revoked in this case but since the case has been argued on merits and this point has been raised at the fag and otherwise also I find no merit in this appeal. The trial Court has not only properly discussed the law but has relied on the various decisions in respect of Section 44 (e) of the Act. A reference may also be made to a decision reported in Vishnu Avatar vs. State (3) which too comes to the assistance of respondent No. 2.