M.A.A. Khan, J. - (1.)In this case the petitioner was found offering for sale and did actually sell to Hari Prakash, Food Inspector adulterated 'Desi Ghee' on 15.5.79 at his business premises, M/s. Shyam Sunder Narendra Kumar at Mandi Madar Gate, Ajmer. The Food Inspector filed the complaint on 20.8.79 in the court of Chief Judicial Magistrate,. Ajmer who read over and explained the substance of the accusation to the petitioner on 7.9.82 and before recording any evidence in the case made over the case on 22.11.1983 to Addl. Chief Judicial Magistrate No. 2, Ajmer for trial and disposal according to law. The learned Addl. Chief Judicial Magistrate, No. 2. Ajmer completed the trial of the petition and vide his judgment and order dated 8.2.89 found him guilty of the offence under section. 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), convicted him therefor and sentenced him to undergo R.I. for six months and pay a fine of Rs. 2000.00 for his guilt. The petitioner appealed to the Sessions Judge, Ajmer.
(2.)A number of objections appear to have been taken by the petitioner before the learned Sessions Judge against the judgment and order as made by the learned Magistrate against the petitioner. One of such objection was that since the offence under section. 7/16 of the Act was triable as a summary case as per Sec. 16A of the Act but more than one Magistrate conducted the trial in the present case. Relying on Man Singh Vs. State of Rajasthan, 1989 (2) R.L.R. 553 , the learned Judge accepted the contention of the petitioner and set aside the judgment and order of the learned Magistrate but instead of acquitting the petitioner of the offence under section. 7/16 of the Act he sent the case to the Chief Judicial Magistrate, Ajmer directing him to hold the trial of the petitioner and dispose of the case according to law and in the light of the decision of this court in Man Singh's case (supra). It is against such order of the learned Sessions Judge dated 10.5.91 that this petition under section. 397/401 Cr.PC has been filed in this court.
(3.)On 16.8.91 this Bench heard the parties and being of opinion that there was some conflict of opinion over the effect of non-compliance of the provision contained in Sec. 16A of the Act referred the following question for the opinion of a larger Bench -
"If an offence under section. 16(1) of P.F.A. Act which has to be tried in a summary manner has been tried as a warrant case then whether merely because it has been so tried, the proceedings are vitiated or it is a mere irreqularity and it is further necessary for the accused to show that as a result of the trial of the case as a warrant case prejudice has been caused to him -