Sudhanshu Sekhar Ganguly, J. - (1.) The present matter arises out of an application under sections 397/401 read with section 482 of the Criminal Procedure Code. The relevant facts are the following : The present petitioner - a grocer - was convicted by Shri Ajay Nath Sen, Sub-Divisional Judicial Magistrate, Ghatal in case No. 266-C/79 under section 16 (i) (a) (i) of the Prevention of Food Adulteration Act and sentenced to undergo 3 months' rigorous imprisonment and to a fine of Rs. 500/- on allegation of selling or keeping for sale adulterated mustard oil. Shri H.R.K. Gajra, Additional Sessions Judge, III Court, Midnapore who heard the appeal being Criminal Appeal No. 32 of 1982 from the date of conviction and sentence set aside the same and sent the case back on remand to the learned trying Magistrate for a proper decision in accordance with law and in the light of the observations in the body of the judgment. Hence, this application for revision.
(2.) It is urged from the side of the petitioner-appellant that since even the learned Additional Sessions Judge found the evidence deficient and noticed other fatal defects in the case, he should have simply allowed the appeal and acquitted the petitioner instead of sending the case back on remand to make it possible for the prosecution to fill up the gaps in evidence and remove the other defects.
(3.) The defects noticed by the learned Additional Sessions Judge and the remedial procedure as suggested by him are the following:- (1) As per the report (Exhibit 4) of the Public Analyst the sample mustrad Oil was adulterated as it contained sesame oil more than the prescribed limit. In view of Rule 5, items A-17.06 and A-05.15 appearing in Appendix 'B' of the Rules, mixture of other edible oils upto a limit 7% is permissible. The prosecution did not examine the Public Analyst and there is no knowing what was the extent of sesame oil in the sample mustard oil and what according to him as the prescribed limit. It is necessary that aspect of the case should be clarified by proper evidence of the Public Analyst in the court below. (2) The sanction (Ext. 7) in this case accorded under section 20(1) for prosecution of the accused for violation of section 7(1) whereas charge was framed against him for violation of section 7(v), read with rule 44(e). This aspect of the case requires reconsideration by the court below. If is considered that a charge under Section 7(v) read with rule 44(e) cannot be framed for violation of section 7(1), the benefit thereof should go to the accused. (3) During his examination under section 313, Criminal Procedure Code the accused was merely asked as to the adulteration of the mustrad Oil as found by the Public Analyst : but the manner of the adulteration was not clarified to him. The accused needs to be examined under section 313, Criminal Procedure Code afresh in accordance with law and the decision in 1980 FAJ 144.;