Thakkar, J. - (1.) 'Right', or 'wrong', 'guilty' or 'not guilty', is not the question. Whether the learned single Judge had the 'right' to hear and decide the appeal and hold that the appellants were guilty whilst setting aside their acquittal by the judgment under appeal1 is the question which has surfaced in the context of a judgment rendered by a learned single Judge which according to the relevant rules of the High Court was required to be heard and decided by a Division Bench.
(2.) Sec. 16 of the Prevention of Food Adulteration Act, 1954: 16. Penalties: "Subject to the provisions ..........he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees .........."
(3.) Such is the problem that has arisen in the context of Rule 1 read with Rule 2-II(e) of the Bombay High Court Appellate Side Rules, 19603 What then is the consequence Is the order of conviction and sentence recorded by the learned single Judge who allowed the appeal merely irregular or void 3. Rule 1: "The Civil and Criminal jurisdiction of the Court, on the Appellate Side, shall, except in cases where it is otherwise provided for by these rules, be exercised by Division Bench consisting of two or more Judges." Rule 2- II(e): "Save as otherwise expressly provided by these 2 rules a single Judge may dispose of the following matters: II "Appeals against conviction in which only a sentence of fine has been awarded or in which the sentence of imprisonment awarded does not exceed five years with or without fine, appeals against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine, and appeals under Section 377 of the Code of Criminal Procedure, revision applications and Court notices for enhancement of sentence for offences punishable on conviction with sentence of imprisonment not exceeding two years or with such imprisonment and fine. (e) Applications for leave to appeal under Section 378(4) of the Code of Criminal Procedure against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine.;