- (1.) HEARD learned counsel for the petitioners and learned S.C. -II for the State.
(2.) THE petitioners are aggrieved by the order dated 5.4.207 passed by Sri A.K. Mishra -II, learned Judicial Magistrate, Dhanbad, in P.F.A. Case No. 5 of 2005 / T.R. No. 1462 of 2005, whereby the application filed by the petitioners for discharge, has been rejected by the learned Court below. From perusal of the impugned order, it appears that cognizance had been taken against the petitioners on 9.3.2005, for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (herein after referred to as the 'P.F.A. Act'). Thereafter, the petitioners filed the application for discharge stating that the Judicial Magistrate had no jurisdiction to proceed with the trial and accordingly, the petitioners may be discharged. It is the case of the petitioners that even the Sub -Divisional Judicial Magistrate is not empowered by the State Government to try the offences under the P.F.A. Act. The impugned order shows that the learned Judicial Magistrate has relied upon a letter bearing No. 5995 -6016/Apptt. Dated 31st July 2006, issued by the Jharkhand High Court, to show that a Judicial Magistrate 1st Class of a Judgeship, apart from the Sub - Divisional Judicial Magistrate, is empowered to try cases under the P.F.A. Act and no separate order under sub -Section (1) of Section 11 of the Cr.P.C., is required to be issued for vesting such powers to try cases under the said Act. Placing reliance on this letter, the Court below has found that it has the jurisdiction to try the case and accordingly, the application for discharge filed by the petitioners was rejected.
(3.) LEARNED counsel for the petitioners has submitted that Section 16A of the P.F.A. Act provides that notwithstanding anything contained in the Cr.P.C., all the offences under Section 16(1) of the said Act shall be tried in as summary way by a Judicial Magistrate of first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the Cr.P.C. shall, as far as may be, apply to such trial. Placing reliance on this section, learned counsel submitted that it was wrongly circulated by the High Court to the Subordinate Courts that the Judicial Magistrates, first Class, and the Sub -Divisional Judicial Magistrates are empowered to try the cases under the P.F.A. Act, rather, as a matter of fact, there is no Notification of the State Govt. specifically empowering either the Sub - Divisional Judicial Magistrate or the Judicial Magistrate to try the offence under the said Act. In this connection, learned counsel has placed reliance upon a decision of Patna High Court in the case of Jagat Narayan Sah & Anr., Vs. State of Bihar, reported in 1989 East Cr C 500 (Pat), wherein, it has been laid down as follows: - "13. Under the provisions of Food Adulteration Act all the offences under the amended section 16A of the Prevention of Food Adulteration Act are to be tried summarily by a Magistrate empowered by the State Govt. In this case, admittedly, the Magistrate was not empowered by the State Govt. to try cases arising out of the Food Adulteration Act summarily and the mandate of law has not been complied with. The High Court has vested necessary powers for trying cases summarily arising out of Food Adulteration Act by issuing a notification but the Act says: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub -section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Govt. or by a Metropolitan magistrate and the provisions of Section 262 -265 (both inclusive) of the said Code shall, as far as may be apply to such trial." This excludes the vesting of the power by the High court and confers power on the State Government. The offence committed under the provisions of Food Adulteration Act shall be tried by a Magistrate and for which the powers shall be vested in him by the State Government. This mandate of law has not been done in this case. This is a far reaching omission and it is not curable irregularity. It is an illegality. If the law directs that a particular act should be done in a particular manner, the act must be done accordingly and omission to do so, goes at the very root of the trial and, as such, the trial held by an incompetent Magistrate must be held to be ab initio, illegal and void. The conviction of the petitioners by such an incompetent Magistrate who was not vested with lawful powers as the mandate of law provides, must be held to be illegal and void ab initio. On this account also, the petitioners are entitled to be acquitted straightway".;