N. N. Sharma, J. - (1.) THIS revision is directed against an order dated 20-11-1981 passed by Sri I. P. Mital, Sessions Judge, Tehri Garhwal, at Camp Uttar Kashi by which he allowed Criminal Revision No. :21 of 1981 preferred by State against the order of discharge dated 6-6-1981 recorded by Sri Rati Ram, Chief Judicial Magistrate, Tehri Garhwal, under that order learned Chief Judicial Magistrate had discharged the accused (revisionist) under section 245 (2) CrPC.
(2.) IT appears that a complaint was filed by Food Inspector Uttar Kashi against Gopeshwar Prasad and M/s. Shriyana Prasad Dayanidhi Jain wholesales of Uttar Kashi alleging that accused no. 1 was selling mustard oil at hir shop on 21-11-1979 at about 4 p. m. when the Food Inspector purchased the mustard oil. After compliance of necessary formalities, he sent the sample for analysis ; Public Analyst opined that the sample was adulterated. It appears that at the time of sampling the purchase was done by the Food Inspector from sealed tin ; a voucher was also produced by the vendor showing that he did purchase the mustard oil in sealed tins from accused no. 2 ; vouchers corroborated this assertion of the vendor and so Food Inspector also impleaded accused-revisionist on the application of vendor. The case was fixed for evidence before framing the charge on 3-5-80 in the court of competent Magistrate, but it was transferred to the court of Chief Judicial Magistrate for disposal. Meanwhile an application was filed by accused no. 2 before the Chief Judicial Magistrate for dismissing the complaint and discharging the accused persons alleging that the prosecution was not sustainable in view of non-compliance of Rule 22-A of the P.F.A. Rules which was mandatory according to the decision of this court in Criminal Revision Wo. 46 of 1974 Jyoti Swaroop v. State, reported in 1978 All India Prevention of Food Adulteration Journal 342. State opposed the prayer on the ground that no evidence of the prosecution has yet been recorded and so there was no question of discharge of the accused at that stage. However learned Magistrate ignored this contention and recorded the impugned order and discharged the accussed under section 245 (2) CrPC. Learned Sessions Judge disagreed with this view and allowed the revision and set aside the order of discharge and remanded the case to the court of Chief Judicial Magistrate Uttar Kashi for disposal in accordance with law by the impugned order.
(3.) AGGRIEVED by this decision the instant revision was filed. Heard learned counsel for both the parties at great length.;