N. K. JAIN, J. - (1.) THIS revision is directed against the judgment of learned Addl. Sessions Judge No. 2, Jodhpur dated 4. 8. 84 whereby the order passed by the learned Chief Judicial Magistrate dt. 22. 9. 83 was confirmed. The learned Chief Judicial Magistrate convicted the petitioner u/s. 7/16 of the Prevention of Food Adulteration Act and sentenced him to six months' R. I. with a fine of Rs. 500/- and in default of payment of fine to undergo further six months' R. I. The prosecution case in brief is that the petitioner was running a shop of sweets. On 2. 6. 79, Food Inspector Purshottam Vyas inspected the shop of the petitioner situated at Pungalpada, Jodhpur. He took samples of 'tawapudi'. The samples were sealed and sent to Public Analyst, Jaipur. The samples were found to be adulterated by Public Analyst due to addition of non-permitted coaltar-dye vide report dt. 10. 7. 79 (Ex. P-9) as also by the Director, Central Food vide his report dt. 6. 10. 80 (Ex. P-15) comtained at the instance of the accused. A complaint was filed in the Court of Chief Judicial Magistrate against the petitioner on 26. 10. 79. After conclusion of the trial, the learned Chief Judicial Magistrate convicted and sentenced the petitioner. The petitioner preferred an appeal, but the same was dismissed by the learned Sessions Judge on 4. 8. 84, Hence this revision.
(2.) MR. M. M. Singhvi, learned counsel for the petitioner has submitted that the entire trial is vitiated as there is violation of sec. 16-A. He has also submitted that in sweet colour can be used as per Rule 29 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) and further that there is no finding that the colour used was not one of the two colours permitted under Rule 28. In support of his contention he has placed reliance on Man Singh Vs. State (1), Darshan Lal vs. State (2) and Bhogilal Hargovind Das Petel vs. The State of Gujarat (3)He has prayed that the conviction of the petitioner be quashed as the matter is pending since 2. 6. 79. Mr. D. M. Bohra, learned Public Prosecutor has supported the orders passed by the learned courts below and submitted that the petitioner has been rightly convicted and sentenced. I have heard learned counsel for the parties and perused the record. The undisputed facts in this case are that initially the charge was framed by the Chief Judicial Magistrate on 25. 8. 82 after examining P. W. 1 Purshottam Vyas on 7. 5. 81. Thereafter he was transferred. His successor examined P. W. 2 Radhey Shyam and also recoreded the statement of the accused Ramdayal on 1. 7. 83 and D. W. 1 Shyamlal on 19. 7. 83. The case is triable summarily but the learned Magistrate without following the procedure u/s. 262 to 265 decided it on 22. 9. 83. Learned Public Prosecutor has not disputed the settled proposition of the law in view of the decision reported in Man Singh Vs. State (supra) and Darshanlal Vs. State (supra) that the accused has a right that his case should be heard and decided by the same Magistrate. Thus, the provisions of Sec. 16-A has been violated because the learned Magistrate while recording conviction relied on the evidence which was partly recorded by his predecessor, , therefore in my opinion, the trial is vitiated. Learned Public Prosecutor has submitted that the case may be remanded back for retrial. There is no doubt that the High Court in the exercise of its revisional power can revise such an order and direct for retrial of the case but the case in hand is pending since 2. 6. 79. The accused has suffered sufficient agony during the pending trial, in my opinion, no useful purpose will be served to remand the case back for retrial after a lapse of 12 years. That apart in this case, the petitioner was convicted for using prohibited colour in 'tawapudi' sweet. Rule 29 permit the use of any colour in sweets but Tarazine or sunset yellow are the only prohibited colour as per Rule 29 of the Rules. The report of the Public Analyst is on record which shows the presence of non-permitted artificial colouring matter (coaltar dye), but at the same time there is no evidence to this effect. Therefore, in the absence of any specific evidence and the finding of the Public Analyst/director regarding the fact that to what extent the coaltar dye has been used. Thus, in view of Bhogilal Vs. State of Gujarat (supra), the conviction of the petitioner cannot be sustained. As already stated above and under the facts and circumstances of this case, the conviction of the petitioner cannot be maintained on both counts and the same deserves to be quashed. Consequently, this revision petition is allowed. The conviction of the petitioner Ramdayal u/s 7/16 of the Prevention of Food Adulteration Act is quashed. The orders passed by the learned courts below are set aside. The petitioner is already on bail, so he need not surrender and his bail bonds are discharged. .;