JUDGMENT
Nunumani Prasad Singh, J.
1. This application in revision is directed against the judgment and order dated 4th January, 1986 passed by the 4th Additional Sessions Judge, West Champaran, Bettiah whereby he dismissed the appeal affirming the conviction of the petitioner under Section 16 (1)(b) of the Prevention of Food Adulteration Act, 19.4 (herinafter to be referred to as the ‘Act’) and sentence to undergo R/I for six months as passed by the learned sub-divisional Judicial Magistrate, Bettiah in Case No. 36 of 1980.
2. On 8th April, 1977, the complainant Pashupati Prasad, Food Inspector, Chanpatia visited the grocery shop of the petitioner and after giving notice, he demanded the sample of mustard oil from the petitioner for chemical examination by the Public Analyst. But the petitioner refused to give him any sample. The complainant, after obtaining necessary sanction from the Chief Medical Officer cum Civil Surgeon, filed prosecution report (Ext. 1) before the Chief Judicial Magistrate, Bettiah who took the cognizance of the offence under Section 16(1)(b) of the Act and transferred the case to the Sub-Divisional Judicial Magistrate, Bettiah for disposal. The learned S.D.J.M. on consideration of the evidence, convicted and sentenced the petitioner in the manner mentioned aforesaid.
3. As against the conviction and sentence, the petitioner preferred an appeal before the Sessions Judge, Bettiah which was heard by the 4th Additional Sessions Judge, Bettiah who dismissed the appeal affirming the conviction and sentence of the petitioner.
4. Mr. Brij Kishore Prasad learned Counsel for the petitioner has contended that the trial of the petitioner is vitiated because the learned Magistrate was not specially empowered in this behalf by the State Government, as contemplated under Section 16-A of the Act to try the cases arising out of this Act. Apart from this, no offence under Section 16(1)(b) of the Act is made out in this case against the petitioner, as there is no allegation that he prevented the informant from taking sample of mustard oil, as such, the impugned order cannot be sustained.
5. Reliance was also placed in the case of Rewati Raman Sharma v. Jamshedpur Notified Area Committee AIR 1970 Pat 140. The contention of Mr. Prasad is well founded and the petition must succeed. In the instant case, it is nowhere mentioned in the complaint petition (Ext. 1) that the petitioner prevented the complainant from taking the sample of mustard oil from his grocery shop or showed any guesture which amounted to prevent him from taking sample of mustard oil, as desired by him. The complainant has not been examined in this case nor there is any explanation for his non-examination.
6. In my view, refusal to sell does not amount to prevention. The ingredient of Section 16 (1)(b) of the Act is, therefore, not attracted in this case. This also finds support from the case of Rewati Raman Sharma v. Jamshedpur Notified Area Committee (supra).
7. As regards want of jurisdiction of the learned trial court to try the offences arising out of this Act is concerned, it will be relevant to quote here Section 16-A of the Act which runs as follows:
Section 16-A power of Court to try cases summarily.- 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 1st 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 said Code shall, as far as may be, apply to such trial:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code.
8. It is thus, evident that the offences arising out of this Act were triable by a Judicial Magistrate of the 1st Class, specially empowered in this behalf by the State Government. The prosecution in this case has not been able to bring anything on the record that the trial court was specially empowered by the State Government at the relevant time to try the cases arising out of this Act. The whole trial of the petitioner is, thus vitiated and the impugned order cannot be sustained.
9. Accordingly, the conviction and sentence of the petitioner are set aside and in the result, the petition is allowed.
