ORDER
R.P. Gupta, J.
1. The petitioner challenges the order dated 29-12-1989 passed in Cr. Revision No. 79/89 by First Additional Sessions Judge, Umaria, district Shahdol setting aside the acquittal judgment of Chief Judicial Magistrate, Umaria in Cr. Case No. 1083/84, decided on 3-2-69. By this impugned order the Additional Sessions Judge, set aside the acquittal and remanded the case back to the Chief Judicial Magistrate for its re-decision in accordance with law for the reasons discussed in the impugned order.
2. The circumstances in which this revision was taken up by the Additional Sessions Judge were like this that after the acquittal judgment by the Chief Judicial Magistrate, the Sessions Judge, Shahdol inspected the Court of Chief Judicial Magistrate and found gross irregularities in disposal of this case, finding that there was sufficient overwhelming material to convict the accused and no material to raise any doubt on any point against the prosecution. The accused had been prosecuted for contravention of Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (for short the ‘P.F.A. Act’) for having soid a sample of coloured JALEBI with impermissible colour to Food Inspector, Shri P.D. Khare in that area as far back as on 18-7-85. The one part of sample sent to the Public Analyst was found to be adulterated in so far as prohibited colour was found in it. The Chief Judicial Magistrate, however, noticed defect in sampling, defect in the report of Public Analyst, defect in sending the sample to the Public Analyst, non-production of the postal receipt vide which the sample was sent to the Public Analyst and a host of other defects. The Chief Judicial Magistrate had also noticed that the samples were taken in polythene packet having JALEBI weighing 250 grms each. Three such packets were taken in possession as sample. This JALEBI was not put in any bottle as per the requirement of Rule 14 of the P.F.A. Rules. All three packets so taken were wrapped separately in paper and sealed with the seal of the Food Inspector. One such packet was sent to the Public Analyst. The Chief Judicial Magistrate found that this was violation of Rule 14 of the P.F. A. Rules. The samples should have been taken in clean, dry bottles, even if it was kept for sale in polythene packs.
3. The Sessions Judge, on his inspection of the Court of Chief Judicial Magistrate, on administrative side, found a gross mis-carriage of justice having been committed by the order of acquittal passed by the Chief Judicial Magistrate without any basis and ignoring the entire evidence of procedure of sampling proved by the Food Inspector, on record. He, therefore, after taking cognizance, suo motu, finding that there was illegality in the trial resulting in gross injustice to the prosecution, marked over the case in revision proceedings to the Additional Sessions Judge who ultimately decided the same. The Additional Sessions Judge reversed the acquittal judgment in revisional proceedings by the impugned order and remanded the case back for its re-decision, finding that there was illegality resulting in violation of justice to prosecution. It was directed that case may be decided afresh. Each of the points of infirmity found by the trial Magistrate, was found to be illegally decided against facts as well as against law.
4. The accused approaches this Court in the present petition under Section 482, Cr.P.C. urging that, against a judgment of acquittal, an appeal is provided in the Criminal Procedure Code under Section 378, Cr.P.C. The Food Inspector could file an appeal. In these circumstances, the revision did not lie. The argument is that when appeal is one of the remedies, the revisional remedy, even suo motu, should not be exercised. For this proposition the learned counsel relies upon the pronouncement of the Supreme Court in the case of AIR 1967 SC 1156 : (1967 Cri LJ 1076) titled Ramekbal Tiwari v. Madan Mohan Tiwari. In that case the Magistrate had formed an opinion that no case by Court of Sessions was disclosed, but, offences within his competence for trial were disclosed. So, the Magistrate proceeded with trial and acquitted the accused. The prosecution approached the Additional Sessions Judge in revision petition wherein the Sessions Judge held that the order of the Magistrate that there was no case triable by the Sessions Court and only lesser offences were disclosed, was illegal and improper and so, that order, of the trial by the Magistrate before himself, was set aside and the Sessions Court directed that the case be committed for trial before the Sessions Court, The accused approached the High Court in revision petition and the Patna High Court held that the appellant Was improperly discharged of graver offences, and also confirmed the order of the Additional Sessions Judge in respect of some of the accused. The accused approached the Supreme Court by Special Leave Petition. That case had arisen before the new Cr.P.C. of 1973, and the Magistrate had held an inquiry to decide whether the case was to be committed or not. It was in those circumstances that the Supreme Court expressed the two opinions : firstly, that the Sessions Judge has no authority to set aside the acquittal of the accused, under Section 437, Cr.P.C. and secondly; that when such order is confirmed by the High Court in revision proceedings. that order is not ultra vires as the High Court has jurisdiction by itself to interfere with the order of the acquittal in revision and direct re-trial, of the. accused on graver offence.
5. It must be noted that before the Criminal Procedure Code of 1973, the powers of the Sessions Judge in revisional proceedings were limited to recommending a case for interference to the High Court, while after passing of Criminal Procedure Code of 1973 the revisional powers of the Sessions Court are parallel to those of the High Court, as per the provisions of Sections 397 and 399, Cr.P.C. It is that provision which has sway for purpose of the present case. So, when the observations of the Supreme Court, in the cited case, are taken into consideration in the light of the enhanced powers of the Sessions Court provided under Section 399, Cr.P.C., it cannot be said that in no case of acquittal, the Sessions Court can have power of revision. If there is total irregularity and illegality committed by Magistrate, resulting in injustice in the trial at any stage, the Sessions Court would be competent to interfere in revisional proceedings even if the final order passed by Magistrate is that of acquittal. In such exceptional cases, it makes no difference that an appeal would also lie. In the peculiar circumstances, the jurisdiction of Sessions Court to interfere suo motu in exercise of revisional powers, remains intact. Section 401, Sub-section (4) provides that when a person is entitled to file an appeal, he cannot approach the High Court by a petition for revision. Clause (5) of that section, however, at the same time also lays down when such a revision petition is filed before the High Court under a belief that the appeal does not lie, the High Court may in the interest of justice, treat it as petition for appeal. These provisions are regarding revision petition before the High Court. The limitation in exercise of powers during the revision petition is provided by clause (3) of Section 401 that High Court is not authorized to convert a finding of aquittal into one of conviction.
6. Section 399, Cr.P.C. empowers the sessions Judge to exercise all or any of the powers which may be exercised by the High Court under Section 401(1). Section 399(2) of the present Code is in the following terms :
399. Sessions Judge’s powers of revision.- (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
7. It, thus, becomes clear that to achieve the ends of justice and to prevent miscarriage of justice by procedure or orders of the Courts below, the Sessions Judge can act in revision, even if there is a judgment of acquittal by the Court-below, of course this does not mean in all cases. Such exercise of power is limited necessarily to those cases where the Magistrate has acted with gross illegality in the procedure or totally ignored the law or material on record.
8. According to the Addl. Sessions Judge, in the impugned order, on all points found by the Chief Judicial Magistrate against the prosecution, he mis-read the provisions and totally ignored the evidence on record and introduced impermissible interpretation of statutory provisions and reached impermissible conclusion. Therefore, that judgment of Magistrate was set aside and the matter was remanded back for its redecision.
9. Learned counsel for the accused has re-asserted that even this assessment was not an illegality of procedure, but, at worst there was error in interpreting the various rules under P.F.A. Rules or statutory provisions and taking inferences from the available evidence on record, whether requirements of those rules and statutory provisions had been complied with or not. So the matters related to appreciation of evidence and law and it cannot be said to be illegality of procedure resulting in injustice. So, revisional interference suo motu was impermissible.
10. This Court has minutely looked into the record and the various rules which were found by the trial Magistrate to have been violated. This Court finds that at least on one point, there can be possibility of two opinions, while on all other points opinion of the Magistrate was prima facie absurd and perhaps in total ignorance of existing rules and law. The one aspect for which two opposing opinions are possible is whether the samples taken in polythene packet, wherein the accused was selling the JALEBI, was a proper way of taking the sample. According to the Food Inspector each packet in polythene pack contained 250 gms. of JALEBI and he was selling them in those packets. The Food Inspector lifted three packets. These were not labelled-packets, but, we can say they were polythene envelopes with their mouth closed and sealed, containing JALEBI. It appeared that he had, for his own convenience, apportioned the JALEBI in different polythene packs and sealed their mouth. The Food Inspector lifted three such polythene packs, wrapped each one of them in paper and put his seal on such paper. He sent one of them to Public Analyst. The trial Magistrate found it to be violation of Rule 14 of the P.F.A. Rules. This rule is in the following terms :
14. Manner of sending samples for analysis.- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed
11. In the present case the samples of JALEBI were not kept in bottles or jars or other container. It is a moot question whether keeping this packet as such, as sample, was violation of Rule 14 or not. Section 11(1)(a) and (b) of the P.F.A. Act provides the procedure of sampling, Sub-clause (b) provides, except in special cases provided by rules under this Act, to divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and to take the signature or thumb-impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed. This provision read with Rule 14, Can be interpreted to mean that samples should be taken in clean dry bottles or jars or other suitable container. It will be question of interpretation whether the polythene packet in which the sampling was done, was suitable container or not. No pronouncements either of the High Court or of the Apex Court have been cited before this Court on the subject. At least this is contentious matter. No material is on record to reveal whether polythene has or has not any adverse effect, on eatable like Jalebi packed in it for days together.
12. When such is a situation, the interpretation put by trial Magistrate will not be called mala fide or obviously illegal or even absurd. There could be variation in the exact scope of the meaning of the words “suitable container” contained in Rule 14 of the P.F.A. Rules. If the Chief Judicial Magistrate held that polythene packets were not suitable container, the prosecution could challenge it by appeal before the High Court. It could not be said that interpretation of the Chief Judicial Magistrate was such an illegality as resulted in infraction of justice, necessitating interference in revisional proceedings.
13. It may be that on other points the observations of the Chief Judicial Magistrate were totally unjustified and prima facie absurd and if they were the only reasons for his conclusion, the interference in the revision even suo motu by the Sessions Judge would have been justified. But, an accused standing trial for offence under Section 16 of the P.F.A. Act can seek acquittal even on one point such as sample taking being illegal or in violation of rules. If there was a fair interpretation possible that the sampling was not in suitable container then the benefit could be given to the accused. The opinion of the Magistrate in such case should have been challenged in appeal before this Court, under the provisions of Section 378, Cr.P.C. Suo motu interference by the Sessions Judge, because he took different view on interpretation of this legal aspect was not justified.
14. In view of the above discussion, this petition under Section 482, Cr.P.C. must be allowed. The same is accepted. The impugned order of the Additional Sessions Judge passed in revisional proceedings is. therefore, set aside.