KANTA BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment dated September 21, 1976 passed by the Chief Judicial Magistrate, Chittorgarh, acquitting the respondents for the charge of contravention of Clause 4 of the Sugar (Packing and Marking) Order, 1970 (hereinafter to be refeferred as 'the Order!) read with Sugar Control Order, 1966, punishable under Section 3/7 of the Essential Commodities Act.
(2.) M /s. Mewar Sugar Mills Ltd. Bhupalsagar (Hereinafter to be referred as 'the Mills' is manufacturer/ producer of sugar by vacuum pan process. Respondent No. 1 Shri N.R. Keshan is the Assistant Manager and respondent No. 2 Shri Sardar Singh Kothari is the General Manager of that Mills. In exercise of the powers conferred by Section 3 of the Essential Commodities Act, the Central Govetnment made the Sugar Control Order, 1966 Clause 5 of that Order authorising the Central Government to issue directions to the producers or recognised dealers by general or special order regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar, as it may deem fit. In exercise of the power of aforesaid Clause 5 the Central Government made Sugar Packing and Marking Order, 1970. Clause 4(1) of the Order reads as under: Every producer shall at the time of packing mark on the bag in which the sugar is packed, its quality in terms of Indian sugar Standards in force at that time and shall also ensure that the quality of sugar contained in the bag corresponds to the quality of sugar marked thereon until it is sold and delivered by him. Vide notification dated June 12, 1970 Shri S.L. Tandon was appointed Inspector in the office of the Central Government, Directorate of Sugar and Vanspati, Ministry of Agriculture and was authorised to draw the samples of Sugar. On June 15, 1973 Shri Tandon visited the factory godown of the Mills and drew 11 samples of Sugar of the 1972 -73 season's production in triplicate, in accordance wi!h the procedure prescribed under Clause 12 of the Sugar Control Order. The samples of sugar were taken in polythene bags and then packed and sealed in cloth bags in the presence of Mr, Keshan Ex. P.1 is the statement of drawing and packing the samples. One out of each three samples was handed -ever to Shri N.R. Keshan and the remaining 2 -2 samples were furnished by Shri Tandon to the State and the Directorate of Sugar and Vanaspati. On November7, 1973 sample No. T -78/232 out of the 11 samples was forwarded to National Sugar Institute, Kanpur for determining the Indian Sugar Standard (I.S.S) grade. The marking on the packet from which the sample was taken was c -29. Mark c -relates to the size of the grains and number 29 relates to the whiteness of the sugar. After analysis of the said sample the National Sugar Institure, Kanpur made the report Ex P.4 As per that report the sample was found inferior in grade. Show cause notice was issued to the Mills by the Directorate The reply was not found satisfactorly. A complaint was therefore, filed against the Mills through its General Manager Shri S.S.Kothari and Shri N.R. Keshaan, Assistant Manager of the Mills for violation of Clause 4(1) of the Order read with the Sugar Control Order, 1966 which is an offence punishable under Section 3/7 of the Essential Commodities Act. An application under Section 63 read with 305 of the Code of Criminal Procedure (1973) was filed on January 25, 1975 by Shri S.S. Kothari, General Manager with the prayer that as the company has a statutory right to appoint a representative of its shown choice, choice is not of the complainant to name a person and obtain a warrant against that person, the process against the applicant may be vacated and his name be removed from the accused. On March 3, 1975 at the submission of APP that the prosecution has been launched against Shri S.S. Kothari and Shri N.R. Keshaan and not against the company, the name of M/s Mewar Mills, Bhupalsagar was struck off and Shri S.S. Kothari was referred to as the General Manager of the Company and the prosecution commenced against him in bis capacity as General Manager and not as representative of the company.
(3.) THE repondent were charge sheeted for the aforesaid offence. They denied the indictments and claimed to be tried. P.W.I Shri S.L. Tandon and P.W.2 Shri A.K. Gupta were examined from the prosecution side. The respondents in their statements under Section 313 of the Code of Criminal Procedure admitted the visit of Shri Tandon and his drawing the samples from the factory godown, but denied the allegation of any of the samples being inferior to the perescribed I.S.S. grade and stated that there was no complaint of any type from any one in that respect previously. Shri N.R. Keshaan appeared in the witness box as D.W.I. One Shri Gulsher Khan, labourer in the Mills was examined as (D.W.2). One of the submissions made from the defence side that found favour with the learned Chief Judicial Magistrate was that the samples were not taken as per the rules and therefore, they cannot be said to be the representative samples. The learned Magistrate arrived at a conclusion that it cannot be said that the smples were free from atmospheric effect and on that ground acquitted the respondents of the changes. The order of acquittal caused grievance to the State of Rajasthan. Hence the present appeal.;