Allahabad High Court
Avinash Chandra Bajpai & Another vs State Of U.P. & Another on 6 September, 2017
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 53
Case :- CRIMINAL REVISION No. - 227 of 2012
Revisionist :- Avinash Chandra Bajpai & Another
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Umesh Chandra Kesarwani
Counsel for Opposite Party :- Govt. Advocate,Shri Ram Pandey
Hon'ble Harsh Kumar,J.
Heard Shri Umesh Chandra Kesarwani, learned counsel for the revisionist, Shri Shri Ram Pandey, learned counsel for opposite party no.2, learned A.G.A. and perused the record.
The present criminal revision has been filed against the impugned summoning order dated 25.08.2011 passed by Metropolitan Magistrate-I, Kanpur Nagar in Case No.6378 of 2011 (N.S.A. Vs. Avinash Chandra Bajpai and another) under Section 7/16 of Prevention of Food Adulteration Act, 1954.
Learned counsel for the revisionist submits that the impugned order of cognizance is wrong and illegal; that the sample of Chhola/Chana Masala (Bhola Indis) is alleged to have been taken from the shop of revisionist on 9.2.2011 on the basis of which complaint under Section 7/16 of Prevention of Food Adulteration Act has been filed against him and the learned Magistrate has acted wrongly in taking cognizance on the criminal complaint under Section 7/16 of Prevention of Food Adulteration Act, 1954 inspite of the fact that Prevention of Food Adulteration Act, 1954 has been repealed w.e.f. 29.7.2010 vide notification in Extraordinary Gazette of India, copy at annexure-2; that the Food Safety and Standards Act, 2006 has come into force w.e.f. 29.7.2010 and after repeal of old Act i.e., Prevention of Food Adulteration Act, 1954 and the complaint under Section 7/16 of Prevention of Food Adulteration Act was not maintainable and no cognizance could have been taken by the Magistrate under the old and already repealed Act; that the Magistrate has taken cognizance of the offence against revisionist in absolutely cryptic manner by non-speaking order, without due application of mind to the facts of case and legal position; that the cognizance was taken under the provisions of the old Act which had already been repealed.
Learned A.G.A. contended that the sample of Chhola/Chana Masala (Bhola Indis) taken from the shop of revisionist has been found to be adulterated and he has committed offence, but could not dispute the legal position that Prevention of Food Adulteration Act, 1954 has been repealed and replaced by Food Safety and Standard Act, 2006 w.e.f. 29.7.2010.
Upon hearing counsel for the parties and perusal of impugned order of cognizance and considering the fact that Prevention of Food Adulteration Act, 1954 has been repealed w.e.f. 29.7.2010 and in its place the Food Safety and Standard Act, 2006 has come into force from 29.7.2010, I find that the Magistrate has passed the impugned order of cognizance without due application of mind and has acted wrongly in issuing process against the revisionist for an offence under non-existing Act. After enforcement of Food Safety and Standard Act, 2006, the procedure under the new Act has to be adopted against the revisionist and no cognizance of offence under the old and already repealed Act may be taken. The impugned order is wrong and illegal and may not be allowed to stand.
In view of the discussions made above, the revision is liable to be allowed and the impugned order of cognizance is liable to be set aside.
The revision is allowed accordingly and the impugned order of cognizance and summoning dated 25.08.2011 is set aside with a liberty to the respondent to proceed against the revisionist under the provisions of Food Safety and Standard Act, 2006, as applicable.
Order Date :- 6.9.2017
VS
