H.C.P. Tripathi, J. - (1.) ON 7 -12 -1964 the Food Inspector of Nagar Mahapalika, Varanasi, purchased two samples one of ghee and the other of linseed oil from Mangroo from a shop in Mohalla Lanka of Varanasi town. A part bf each of these two samples was sent in due course to the Public Analyst who reported that both the samples were adulterated. A prosecution was launched against Mangroo as a salesman and Jagarnath as the proprietor of the shop with respect to the sample of ghee before a Magistrate of Varanasi who inter alia held that the prosecution had failed to prove that Jagarnath was the owner of the shop or its licensee on the date of occurrence. The learned Magistrate further held that "Mangroo in fact appears to have given the sample of the ghee after having indicated that it was not meant for human consumption but for use as fuel. No offence was, therefore, committed by Mangroo under the P.F.A. Act." The learned Magistrate acquitted them on these findings. Thereafter the case relating to the sample of linseed oil was launched against them and two applications one by Jagarnath and the other by Mangroo were filed before the trial Magistrate pointing out to him that as the two Applicants had been acquitted by the Magistrate in the previous case their trial wife respect to the sample of linseed oil was barred by Section 403 of the Code of Criminal Procedure. These applications were rejected. Applicants then came up in revision before the learned Civil and Sessions Judge who affirmed the order passed by the Magistrate. Applicants have now come up in revision before this Court.
(2.) I have heard Mr. A.D. Giri, Learned Counsel for the Applicants. In the first case which was launched with respect to the same of the ghee Jagarnath was made an accused on the allegation that he was the proprietor and license holder of the shop. The prosecution had failed to establish that allegation. In the present case also Jagarnath is being prosecuted on the same allegation i.e. that he is the license holder and proprietor of the shop on allegation which was negatived by the Magistrate in the earlier trial and the finding had become final in that regard. It may be noticed here that the sample of ghee in respect of which the previous prosecution was launched against Jagarnath and the sample of the linseed oil to which the present proceedings relate were taken at the same time and on the same date by the same Food Inspector. It is, therefore, obvious that so far as Jagarnath is concerned his prosecution is clearly barred by Section 403 of the Code of Criminal Procedure and the Magistrate ha*, erred in not accepting his application for his discharge.
(3.) AS regards Mangroo he was acquitted in the previous case not because the recovery of the ghee was held to be fictitious but on the finding that the ghee whose sample was taken by the Food Inspector was not meant for human consumption. According to the prosecution the Food Inspector obtained the sample of the linseed oil on the same date from Mangroo. Mangroo was not charged in the previous case for having sold the linseed oil to the Food Inspector. If he was selling two kinds of adulterated food stuff he was committing two distinct offences. Simply because the sample was obtained on the same date it cannot be said that the offence for which Mangroo was tried previously was the same as the offence for which he is being tried at present before the Magistrate. In my opinion the alleged offence in respect of selling adulterated linseed oil is quite distinct from one which was the subject matter of the charge in the previous trial. That being so there is no reason why the prosecution of Mangroo on the allegation that he had sold adulterated linseed oil be barred Under Section 403 Code of Criminal Procedure.;