- (1.) This is an appeal preferred by Nagar Swasth Adhikari, Nagar Mahapalika, Varanasi against the judgment and order dated 2-3-1981 passed by the Corporation Magistrate, Varanasi in Crl. Case No. 755 of 1980 (State v. Phool Chandra), whereby he acquitted the accused-respondent Phool Chandra of the offence under Section 7/16 of the Prevention of Food Adulteration Act.
(2.) I have heard the counsel for the parties and have also gone through the records.
(3.) The facts leading to this appeal are that the Food Inspector took sample of milk from the accused-respondent and the same was found to be adulterated by the Public Analyst. The Food Inspector filed a criminal complaint and therein the accused-respondent was summoned and charged for the offence under Section 7/16 of the Prevention of Food Adulteration Act. Before framing the charge, the Food Inspector had been examined before the Magistrate on oath. After framing of the charge at the stage of Section 246, Cr.P.C. the prosecution was called upon to produce the Food Inspector again for cross-exami-nation.It took time on 3-12-1980 and 5-1-1981 for producing the witnesses and then the case was listed on 3-2-1981 and on that date the prosecution again sought time to produce its evidence. This application was rejected by the learned Magistrate on 3-2-1981. The Magistrate then took the statement of the accused-respondent under Section 313, Cr.P.C. and for want of evidence acquitted the accused-respondent. Being aggrieved by the same, the Nagar Swasth Adhikari preferred the present appeal.In the memo of appeal, ground has been taken that it was the duty of the learned Magistrate to procure the attendance of the witness for his further cross-examination but the Magistrate did not make any such attempt and that adulteration is a social crime and in such a case, serious view ought to have been taken by the Magistrate. It cannot be doubted that the Magistrate ought to have issued process to secure the attendance of the said Food Inspector and other witnesses and to take even coercive steps, if need be, and that the prosecution case ought to have been closed by him before all the steps for securing the attendance of the prosecution witnesses were exhausted. That being so, technically, it is a case for remand of the case to the trial Court for re-trial on which he may secure the attendance of all the prosecution witnesses and then decide the case on merits. However, in this regard, the learned counsel for the accused-respondent has submitted that the occurrence related to the year 1977 and that in the meantime even the Food Inspector might have even retired from service and the other witnesses of the occurrence may not be available and that the retrial after such a long gap of time may not serve the ends of justice and may rather become an instrument of oppression.;