Municipal Council vs Tillu Mal and Another

Vinod Shanker Dave, J.—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-B read with Section 16 of the Prevention of Food Adulteration Act (here in after referred to as ''the Act'') and u/s 14/16 of the Act.

Brief facts, leading to this 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 mustured 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 offence 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 then 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 warrant and stated that the bills which were produced before the Food Inspector clearly disclosed that there was a sealed of warrants in compliance of Section 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 44-E, 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.

Learned Counsel for the appellant submits that case is covered by the decision of this Court in Champa Lal v. State of Rajasthan 1976 WLN 737. He also submitted that law has not been properly read by the trial Court.

Learned Counsel for the respondents submits that the trial Court bad not only correctly read the evidence as it existed then but has also relied on the law as it existed on the date of occurrence. On the contrary, this appeal should be dismissed on the very ground that the points raised in the appeal are mis-leading. It is submitted that the learned Counsel has raised grounds in this leave to application which are based on the law as was amended in 1976 while the case of the petitioner had to be decided in light of the law which existed on the date of occurrence i.e. 11-7-1973.

I have my due consideration to the rival contentions and found that there is substance in arguments of the learned Counsel for respondents

Rule 44(e) which existed on the statute at the time of occurrence reads as under:

Sale of certain admitures prohibited--Not with standing the provisions of Rule 43 no person shall either by himself or by any servant of agent sell:

(e) a miuture of two or more edible oils as an edible oil.

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 v. Badri Das AIR 1963 SC (958) their Lordships of the Supreme Court revoked the leave granted on the ground that the fact mentioned in the memo of appeal were mis-leading. It was submitted before their Lordships that the grounds which are mispleading 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 merits and this point has been raised at the fague end 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 14(e) of the Act A reference may also be made to a decision reported in Vishnu Avatar v. State 1978 (II) FAC 162 which too comes to the assistance of respondent No. 2.

In view of the above discussions. I find no force in the appeal and the same is dismissed.