The State Of Maharashtra vs Mahadev Yeshwant Ballal & Anr
2017 Latest Caselaw 2464 Bom

                                                                                                                       APPEAL 392-2002.doc



Anand             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION

                                        CRIMINAL APPEAL NO.392 OF 2002

                        State at the instance of                                                                               .Appellant
                        Shri D.S.Patil,                                                                                        (Original
                        Food Inspector, Food and Drug                                                                          Complainant)
                        Administration, (M.S.), 852/8,
                        B Ward, Subhash Road,
                        Kolhapur.

                                                      Vs.

         1.             Mahadev Yeshwant Ballal,                                                                                .Respondents
                        Age : 76 yrs, Vendor & Proprietor                                                                      (Original
                        of M/s. M.Y.Ballal Kirana Shop,                                                                          Accused)
                        H.No.196, Guruwar Peth, Chandgad,
                        District - Kolhapur.

         2.             Ramesh Shankar Siddanaver,
                        Age : 39 yrs, Prop. M/s. Ramesh S. Siddanaver,
                        General Merchant and Commission Agent,
                        698, Ravivar Peth,
                        Belgaum (Karnataka State).

         Mr.S.S.Hulke, APP, for the Appellant - State
         Mr.S.S.Patwardhan a/w. Mr.Bhushan Mandalik, Advocate, for
         the Respondent Nos.1 & 2

                                        CORAM                           :               REVATI MOHITE DERE , J.

                                        DATE                            :               11.05.2017


         ORAL JUDGMENT


         .                              Heard learned counsel for the parties.

2. By this Appeal preferred by the State of Maharashtra,

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the Appellant has impugned the Order dated 29.12.2001 passed

by the learned Judicial Magistrate F. C., Chandgad, District -

Kolhapur by which the Respondent - accused came to be

acquitted, as the case was dismissed in default.

3. Learned APP submitted that though the case was

adjourned from time to time, the dates were formal dates. He

submitted that technically only on the previous date i. e.

22.11.2001 the Complainant was absent, pursuant to which, on

the next date i. e. 29.12.2001, as the Complainant and the

learned APP were absent, the case was dismissed in default and

the Respondent - accused were acquitted of the offences.

4. Learned counsel for the Respondents opposes the

Appeal. He submits that the Complainant was absent on several

dates and as such, no interference is warranted in the impugned

Order dated 29.12.2001.

5. Perused the papers.

6. The Complainant is the Food Inspector, who has

lodged a complaint as against the Respondent - accused, alleging

offences punishable under Sections 7(i) r/w. 2(ia)(a), 2(ia)(m) 2 of 9

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punishable under Section 16 of the Prevention of Food

Adulteration Act, 1954. Admittedly, the case against the

Respondent - accused has not been heard on merits and they

were acquitted by the learned Judge, as he was pleased to

dismiss the case in default, as the Complainant was absent and

there was no representative of his present, and as no

adjournment Application was preferred.

7. In the facts, it would be necessary to consider the

roznama of the case. A perusal of the roznama shows that the

complaint was presented by the Complainant in person and was

registered on 12.06.2000 and process was issued as against the

Respondent - accused, on the very same day. On 23.06.2000,

the Advocate for the Respondent No.1 filed his Vakalatnama and

so did the Advocate for the Respondent No.2. On the said date, an

order was passed issuing yadi to the Food Inspector. On

10.07.2000, learned Advocate for the Respondent No.1 was

present and so was the Complainant. An Application was

preferred by the Advocate for the Respondent No.1 to send the

sample to the Central Laboratory. Pursuant thereto, the learned

Judge passed an order directing the Respondent No.1 to deposit

Rs.1,000/- by Demand Draft. The matter was adjourned for

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depositing the Demand Draft to 17.07.2000. On 17.07.2000, the

Advocate for the Respondent No.1 was present and so was the

Complainant. The matter was adjourned for receipt of Analysis

report from the Central Laboratory, Kolkata to 17.08.2000. On

17.08.2000, the case was again adjourned for receipt of Analysis

report from the Central Laboratory to 04.10.2000. On

29.08.2000, a letter dated 18.08.2000 was received along with

the Analysis report. Accordingly, an order was passed and an

acknowledgement letter to the Director, Central Food

Laboratory, Kolkata was issued. On the next date i. e.

04.10.2000, the Respondent - accused and their Advocates were

absent and so was the Complainant. As the Respondent - accused

were absent and as they had not furnished sureties, an NBW was

issued as against them. The learned Magistrate was pleased to

reject the exemption Application filed by the Advocate for the

Respondent - accused and the case was adjourned for execution

of the NBW issued against the Respondent - accused, to

31.10.2000. On 31.10.2000, the Presiding officer was on leave

and the matter was adjourned for execution of NBW to

10.11.2000. On 10.11.2000, the Respondent No.1 appeared,

however, the Complainant was absent. The Application preferred

by the Respondent No.1 for cancellation of NBW was allowed. The

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personal bond and surety bond of the Respondent No.1 were

accepted and the matter was adjourned for execution of NBW qua

the Respondent No.2. On 13.11.2000, non-bailable warrant was

issued against the Respondent No.2, who was residing at

Belgaum. On 05.01.2001, the Respondent No.1 was present and

the matter was adjourned for receipt of NBW against the

Respondent No.2, to 05.02.2001. On 05.02.2001, the Respondent

No.1 was present. The report of NBW was not received and

hence, Show Cause Notice was issued to the PSI, City Police

Station, Belgaum and the NBW was re-issued against the

Respondent No.2. The matter was adjourned for execution of

NBW against the Respondent No.2 and notice to PSI to

05.03.2001. On 05.03.2001, the Presiding officer was on leave

and hence the case was adjourned for execution of NBW against

the Respondent No.2 and notice to PSI, to 07.04.2001. On

07.04.2001, the Respondent No.1 was present and the matter

was adjourned as the NBW issued was not received back to

07.06.2001. On 07.06.2001, the Respondent No.1 was present

and the matter was again adjourned for execution of NBW

against the Respondent No.2 to 04.07.2001. On 04.07.2001, the

Respondent No.1 was present and the matter was adjourned for

execution of NBW against the Respondent No.2 to 12.07.2001.

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On 12.07.2001, NBW was re-issued as against the Respondent

No.2 through the Superintendent of Police, Belgaum. Learned

Advocate filed his Vakalatnama on behalf of the Respondent

No.2. The Respondent No.2 also filed an Application seeking

cancellation of NBW, which was allowed on penalty of Rs.50/-

being deposited. The Respondent No.2 was released on personal

bond and surety bond of Rs.10,000/- and the matter was

adjourned for hearing before charge and receipt of NBW to

30.07.2001. On 30.07.2001, both the Respondent - accused were

present, however, the Complainant was absent. It is mentioned in

the roznama dated 30.07.2001 that the report of NBW was not

returned. Accordingly, the matter was again adjourned for

hearing before charge to 03.09.2001. On 03.09.2001, both the

Complainant and the Respondent - accused were absent. It is

noted that the Presiding officer was transferred and hence, the

matter was adjourned to 03.10.2001. On 03.10.2001, the

Respondent - accused were absent and it is mentioned in the

roznama that the Presiding officer was transferred and hence,

the matter was adjourned to 17.10.2001. On 17.10.2001, the

Respondent - accused and their Advocate were present. As the

Presiding officer was on leave, the matter was adjourned for

hearing before charge to 22.11.2001. On 22.11.2001, the

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Respondent - accused and their Advocate were present and so

was the learned APP. The roznama reflects as the Court time was

over in Criminal work, the matter was again adjourned to

29.12.2001. On 29.12.2001, the Respondent - accused and their

Advocate were present . However, the learned APP was absent

and hence, an order was passed below Exh.1 which reads as

under :-

" Order

1. Complainant absent. There is no his representative. No adjournment application. Hence, case is dismissed in default.

2. Accused are acquitted.

J.M.F.C., Chandgad"

8. A perusal of the roznama shows that the matter was

adjourned on several occasions for receipt of the NBW report or;

as the Presiding officer was transferred or was on leave. Infact,

on the date previous to the impugned Order i. e. 22.11.2001, the

matter was not taken up as the Court time was over in Criminal

work. The dates were all more or less formal dates. Therefore,

the absence of the Complainant on the said dates cannot be said

to be either deliberate or intentional. From the perusal of the

roznama, it appears that the Complainant, a public servant, who

had filed the complaint was not even issued summons and as 7 of 9

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such, dismissal of the complaint was not warranted. It is

informed that the Respondent No.1 has expired. Learned counsel

for the Respondents, at this stage, states that he had sent a letter

by R.P.A.D. to the Respondent No.1 and that the postal remark

shows that the Respondent No.1 has expired. Learned Advocate

for the Respondent No.1 to produce the Death Certificate of the

Respondent No.1 before the learned Magistrate.

9. Considering the peculiar facts of this case, the

impugned Order cannot be sustained. Accordingly, in the interest

of justice, it would be appropriate to quash & set aside the

impugned Order dated 29.12.2001 passed by the learned

Judicial Magistrate F. C., Chandgad, District - Kolhapur by which

the Respondents - Accused were acquitted of the offences

punishable under Sections 7(i) r/w. 2(ia)(a), 2(ia)(m)

punishable under Section 16 of the Prevention of Food

Adulteration Act, 1954 and to restore the case i. e. R.C.C.No.11 of

2000 back to its original file. Accordingly, the following order is

passed.

O R D E R

(i) The impugned Order dated 29.12.2001 passed by the

learned Judicial Magistrate F. C., Chandgad, District - Kolhapur

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in R.C.C.No.11 of 2000 is quashed & set aside and the said case,

being R.C.C.No.11 of 2000 is restored back to its original file;

(ii) Both, the Complainant and the Respondent - accused

to appear before the learned Judicial Magistrate F. C., Chandgad,

District - Kolhapur on 19.06.2017 at 11.00 a.m. ;

(iii) Considering the fact, that the case is of 2000, the

hearing of R.C.C.No.11 of 2000 is expedited. Learned Magistrate

is directed to complete the said case as expeditiously as possible

and preferably within six months from the date of appearance of

the Complainant and the Respondent No.2 before the

Magistrate's Court.

10. Accordingly, the Appeal is allowed and is disposed of

on the aforesaid terms.

(REVATI MOHITE DERE, J.)

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