- (1.) HEARD Sri Sri Ram Pandey, learned counsel for the appellant - Nagar Swasthya Adhikari, Kanpur. Notices had been issued to the opposite party and the same is reported to have been served vide office report dated 29th March, 1982. The cause list shows the name of Sri P.N. Mishra as counsel for the opposite parties. In the aforesaid circumstances, the service being complete on the opposite party, this Court is now proceeding to dispose of this appeal as the matter has been taken up on Friday the last day of the weekly list assigned to this Court. No one has appeared for the respondent even in the revised call. This appeal raises a very short question in relation to the appeal filed by the opposite party that was allowed by the court below setting aside his conviction by the Metropolitan Magistrate Kanpur under Section 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months rigorous imprisonment and a fine of Rs. 1,000.00 or in default to undergo three months further rigorous imprisonment.
(2.) THE opposite party was charged under the aforesaid offence and upon having been tried the Metropolitan Magistrate, Kanpur convicted the respondent vide judgment and order dated 20.9.1980 with the aforesaid sentence to be undergone by him. The respondent preferred an appeal and the learned Vth Additional District & Sessions Judge, Kanpur reversed the said conviction solely on the ground that the report of the Public Analyst, Dr. S.B. Singh could not be read in evidence as he was not duly notified and authorized by the State Government to act as a Public Analyst for the region concerned within which Kanpur District fell. The learned Judge relied on the decision of a learned Single Judge of this Court in the case of Hanif Vs. State of U.P. Criminal Revision No. 1504 of 1980 decided on 2nd February, 1981. Aggrieved, the Nagar Mahapallika has preferred this appeal questioning the correctness of the said order of the court below on the ground that the judgment on which reliance had been placed by the learned Lower Court was in relation to the same Public Analyst, who is also the Public Analyst in the present case, and noticing a conflict of decisions on this issue the matter was referred to a Division Bench of this Court. The Division Bench in the judgment reported in 1981 AWC 758 Gajraj Vs. State in paragraphs 20 and 21 ruled as under:- "(20) Viewed in this light, the declaration made by the State Government in the two notifications that whole of U.P. as also Varanasi and Allahabad Regions shall be regarded as single local area for purposes of the Act, should, in the context of appointment of Dr. S.B. Singh and Sri B.S. Garg as Public Analysts, be construed as assigning to each of them two different sets of local areas. Each such set for administrative purposes, has to be treated and considered as one unit of local area. It should, in our opinion, not be construed as a declaration contemplated by Section 2(vii) of the Act, constituting particular area in the Sate as a local area as contemplated by the Act, so construing, the effect of the two Notifications i.e. those dated 23rd June, 1972 and 15th February, 1975 is that whereas Dr. S.B. Singh has been appointed as Public Analyst in respect of all local areas falling within the State of U.P. which stand assigned to him, Sri B.S. Garg has been appointed as Public Analyst for all local areas falling in Varanasi and Allahabad Regions which stand assigned to him. The notification dated 15th February, 1975 has specifically been made in continuation of the notification dated 23rd June, 1972 and not in supersession or modification thereof. Consequently, so far as the local areas falling within Varanasi and Allahabad Regions are concerned, they, for the purpose of Section 8 of the Act, stood assigned both to Dr. S.B. Singh and Sri B.S. Garg and the remaining local areas in the State stood assigned only to Dr. S.B. Singh. As already stated, the provisions contained in the Act do not prohibit assignment of a particular set or unit of local areas to two different persons. Accordingly, both Dr. S.B. Singh, Public Analyst to Government at Lucknow and Dr. B.S. Garg, Public Analyst to Government, Varanasi and Allahabad Regions, were competent to perform the functions of Public Analysts under the Act in respect of cases arising in the local area of Kanpur Municipal Board which fell within Allahabad Region. (21) In the result, we are unable to concur in the view expressed by J.P. Chaturvedi,J. with regard to the scope of the words "shall be deemed as one single local area" used in two Notifications dated 23rd June, 1972 and 15th February, 1975 and its consequent effect and hold that both Dr. S.B. Singh and Sri B.S. Garg would have jurisdiction to analyse the samples which were collected within the Varanasi and Allahabad Regions and that both these authorities were competent to analyse the same."
(3.) CONSEQUENTLY the decision in the case of Hanif Vs. State of U.P. (supra) was overruled and it was found that Dr. S.B. Singh had the authority to analyze the samples and accordingly the said evidence was admissible for the purpose of trial. Consequently, in view of the said opinion expressed by the Division Bench, the judgment under appeal cannot be sustained. Accordingly, the appeal is allowed. The judgment and order of acquittal dated 11th June, 1981 passed by the learned 5th Additional District & Sessions Judge is set aside and the matter is remitted back to the court below to proceed to hear the appeal on merits and dispose of the same in accordance with law as expeditiously as possible after putting the respondent to notice. It is to be noticed that this appeal has been allowed without the assistance of the learned counsel for the opposite party and therefore it shall be open to the opposite party to apply for bail pending appeal before the court below as and when the matter proceeds after receipt of the records from this Court. The court below shall hear out the appeal and shall consider allowing the opposite party to remain on bail during hearing if he responds to the notice. In case the respondent accused fails to get his presence ensured, it shall be open to the court below to take all necessary steps after making enquiries about his present whereabouts.;