JUDGMENT J.M.L. Sinha, J. - This is an application under section 482 of the Code of Criminal Procedure praying that the proceeding against the applicants in the court of Sub-Divisional Magistrate, Budhana, in Criminal Case No. 83 of 1975 under section 7/16 of the Prevention of Food Adulteration Act be quashed. 2. The facts leading to this application can briefly be stated as under: - On 28th of September 1972, at about 12 O' clock Sri R.D. Sharma Food Inspector, Nagar Mahapahka, Auraiya, inspected the shop of M/s. Avad Narain Agarwal and found some tins of ground nut oil, which, according to a cash memo dated 29th June 1972, was sold by the present applicants without giving any warranty to M/s. Avadh Narain Agarwal. On this allegation the Food Inspector filed a complaint for the prosecution of the applicants under section 7/14/16 of the Prevention of Food Adulteration Act. After recording the statement of the Food Inspector and after examining the applicants, the learned Magistrate, who was conducting the trial, framed a charge against the present applicants under the aforesaid sections of Prevention of Food Adulteration Act. Feeling aggrieved against it, the applicants have filed the present application. 3. I have heard the learned counsel for the applicants as also the learned counsel for the state. 4. It is well established that, while exercising its power under section 482 of the Code of Criminal Procedure, the Court should proceed on the assumption that the allegation made in the complaint are true. The court should then examine whether the allegations made out any offence against the applicant. The Court may also examine in some cases whether the charge framed is capable of being proved. 5. Learned counsel for the applicants in the first instance urged before me that no case whatsoever was made out against the applicants and that the entire prosecution launched against the applicants was misconceived. I am not prepared to accept that part of the contention raised by the learned counsel for the applicants. According to the allegations in the complaint, the offence charged against the applicants is that they sold ten tins of ground nut oil to M/S Avadh Narain Agrawal without giving any warranty. It was not disputed before me on behalf of the applicants that the sale of any commodity without a warranty would constitute an offence. According to the allegations in the complaint, the offence charged against the applicants is that they sold ten tins of ground nut oil to M/S Avadh Narain Agrawal without giving any warranty. It was not disputed before me on behalf of the applicants that the sale of any commodity without a warranty would constitute an offence. A perusal of the complaint shows that Avadh Narain Agrawal is also included in the list of witnesses. Now, if Avadh Narain Agarwal comes forward and makes a statement to the effect that the applicant sold him ten tins of ground nut oil without giving him any warranty, and the Court finds the statement of Avadh Narain to be trust worthy, it may be possible for the court to hold the applicant guilty of the offence under section 17/14/16 of the Prevention of Food Adulteration Act. The contention raised by the learned counsel for the applicants, that on the allegations contained in the complaint, no case at all is made out against the applicants cannot be accepted. 6. Learned counsel for the applicants then urged that the learned Magistrate framed a charge against the applicants without there being any iota of admissible evidence against them in support of that charge. There appears substance in this contention. As already remarked earlier, the only witness examined before the framing of the charge was the Food Inspector himself. According to the Food Inspector, it was Avadh Narain Agrawal, who told him that ten tins of ground nut oil were sold by the applicant to Avadh Narain Agrawal. The sale did not take place in the presence of the Food Inspector. The evidence of the Food Inspector on that point was little short of hearsay. The trial court also examined the applicants after having examined the Food Inspector and the applicants denied having sold the alleged ten tins of ground nut oil to Avadh Narain Agarwal. It is also worth of notice that the cash memo which appears to be the sheet anchor of the prosecution case against the applicants was not even put to them. The position is, therefore, reduced to this that there was no evidence before the learned Magistrate in support of the allegation that the applicants had sold any tin of ground nut oil to Avadh Narain Agarwal. The position is, therefore, reduced to this that there was no evidence before the learned Magistrate in support of the allegation that the applicants had sold any tin of ground nut oil to Avadh Narain Agarwal. The learned Magistrate acted on the hearsay evidence of Sri R.D. Sharma, Food Inspector in order to frame the charge. Needless to say that hearsay evidence may not be even admissible. 7. I am, therefore, in agreement with the learned counsel for the applicants that the learned Magistrate has committed an error of Jaw in framing a charge against the applicants. The least that was expected of the learned Magistrate was to have also recorded the statement of Avadh Narain Agarwal and further to get proved the cash memo, found by the Food Inspector at the shop of Avadh Narain Agarwal. The evidence of Avadh Narain Agarwal would have been direct evidence on the point of sale of the alleged tins by applicant. The learned Magistrate could consider framing of the charge against the applicants thereafter. 8. The application is accordingly allowed to this extent that the charge framed by the court below against the applicants on 27th October, 1975 is hereby quashed and the case is remanded to the court below with a direction that the court below shall also record the statement of Sri Avadh Narain Agarwal and shall then examine whether a charge should or should not be framed against the applicants. 9. Let the record of the case be sent back to the court below forthwith to enable it to proceed with the case. The stay order dated 10.12.1975 is vacated.