R.K. Saksena, J. - (1.) Shiv Das respondent, was convicted under Section 7/16 of the Prevention of Food Adulteration Act for selling milk on the 29th August, 1977 at about 7.30 P. M. near Poweyan Chauraha in district Shahjahanpur and was convicted and sentenced to suffer rigorous imprisonment for a period of one year by the Munsif Magistrate, Shahjahanpur, per his order dated 1-2-1972 passed in Criminal Case No. 775 of 1978. On appeal preferred by Shiv Das, the said order was set aside in its entirety by the I Additional Sessions Judge. Shahjahanpur, on the 18th of April, 1979 passed in Criminal Appeal No 227 of 1972 and the respondent was acquitted on the said charge. Aggrieved by the decision, the State of U.P. has preferred this appeal.
(2.) The learned Additional Sessions Judge has set aside the conviction and sentence awarded to the appellant primarily on two grounds. Firstly, that the provisions of Section 16-A of the Prevention of Food Adulteration Act have not been complied with; and, Secondly, there has been non-compliance of the provisions of Section 13 of the Act read with Rule 9 thereof inasmuch as intimation was given to the respondent about the result of the analysis of the milk by the public Analyst after about 140 days.
(3.) The submission of the learned counsel for the appellant on the first point is that in the absence of a finding that the non-observance/compliance of the provisions of Section 16-A of the Act has resulted in miscarriage of justice, the conviction should not have been set aside. The contention, in my opinion, is devoid of merit. If a certain procedure is prescribed, the accused gets a vested interest and right in it and non-observance causes prejudices and results in the miscarriage of justice. When the Magistrate decided to proceed and try it as warrant case he should have made a clear note and recorded his observations that he would follow the procedure prescribed for warrant. The non-compliance of the mandatory requirements would not cure the defect. The court below was justified in accepting the argument advanced on behalf of the respondent on this point.;