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Judgment
Z.K. Saiyed, J.—The Appellant has preferred this appeal u/s 378(4) of Code of Criminal Procedure against the order dated 28.4.2010 passed in Criminal Case No. 1361 of 2009 by the learned Metropolitan Magistrate, Court No. 6, Ahmedabad; whereby, the learned Magistrate has convicted the Respondent No. 2 and awarded sentence of imprisonment till rising of the Court and imposed fine of Rs. 4500/- in default thereof to undergo five days simple imprisonment for the offence punishable u/s 7(ii) of the Prevention of Food Adulteration Act. Against the said order of learned Magistrate, the complainant has preferred this Appeal for enhancement.
The short facts giving rise to present appeal is that on 17.7.2008, Food Inspector visited the business place of Respondent - accused and took a sample of " Milk Toast" and sent the same for analysis. The Public Analyst submitted a Report in which it was found that the said sample is misbranded under the provisions of Sections 2(ix)(k), as it does not comply Rule 32(e)(c) of PFA Rules. After report of the Public Analyst, the complainant obtained permission of Local Health Authority and filed the complaint against the present accused in Court of learned Metropolitan Magistrate, Court No. 5, Ahmedabad being Criminal Case No. 1361 of 2009. The learned Magistrate vide his judgment and order dated 28.4.2010 convicted present Respondent-accused person for offences with which he is charged.
Heard Mr. Jayant P. Bhatt, learned advocate for the Appellant, learned APP Mr. Jani for the State and Mr. C.B. Raval,learned advocate for the Respondent No. 2.
Mr. Bhatt learned advocate for the Appellant has vehemently contended that the learned Magistrate has not considered the provisions of law and order of the learned Magistrate is bad in eye of law. He has contended that looking to the provisions of Section 276B of the Act, such lesser sentence should not have been awarded by the learned Magistrate. The report of the public analyst clearly indicates that the sample was misbranded product and therefore, the Respondent committed the offence as alleged and learned Magistrate imposed minimum sentence. The complainant has followed due procedure as prescribed under the law while taking sample from the Respondent - accused. The witness also supported the case of the complainant and the offence alleged against the Respondent - accused is directly connected with the health of the public at large. In view of the above established facts and circumstances, the learned trial Judge ought to have imposed sentence as prescribed under the Rules, but by ignoring the same, he imposed lesser sentence as stated above.
As against this, learned advocate Mr C.B. Raval for Respondent - accused has contended that the order passed by the learned Judge is just and proper and no interference is called for by this Court and the same requires to be confirmed.
Heard learned APP Mr. Jani for the State.
I have considered the submissions of both the sides and perused the papers. It appears that the sentence imposed upon the Respondent No. 2 is lesser than the prescribed one and the learned Magistrate has committed grave error in not considering the provisions of law properly. The admission of the offence by the accused before the learned trial Judge, has been ignored by the learned trial Judge while passing the order of acquittal and on the contrary, it is held that there is no malafide on the part of the accused and considering the economical circumstances of the accused, the learned trial Judge imposed such lesser sentence. Therefore, the matter is required to be remanded back for fresh decision after considering the facts and circumstances of the case, provisions of the Act.
In the result, this appeal is partly allowed. The impugned judgment and order dated 28.4.2010 passed by the learned Metropolitan Magistrate, Court No. 6, Ahmedabad in Criminal Case No. 1361 of 2009 is hereby quashed and set aside. The case is remanded to the trial Court with a direction to decide the same on merits and in accordance with law. The learned Chief Metropolitan Magistrate, Ahmedabad is directed to notify the said Criminal Case before the concerned Metropolitan Magistrate, Ahmedabad with a direction to decide the said case within a period of six months from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith.