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1980 DIGILAW 209 (ALL)

Union of India v. Chief Judicial Magistrate, Ghaziabad

1980-02-13

B.N.KATJU

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ORDER B.N. Katju, J. - This is an application under section 482 Cr. P.C. on behalf of the Union of India praying that the order of the Chief Judicial Magistrate, Ghaziabad dated 16-3-1978 be quashed. 2. It appears that a complaint was filed under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) against opposite-parties Nos. 2 to 6 in the Court of the Chief Judicial Magistrate, Ghaziabad on 9-1-1976. The learned Magistrate by his order dated 16-3-1978 held that the report of the Public Analyst which was filed during the examination-in-chief of the Food Inspector was not admissible in evidence under Section 13(5) of the Act. 3. Admittedly the bottle in which the first sample was sent to the Public Analyst was found to be broken by the Public Analyst and the Public Analyst by his letter dated 28-10-1974 informed the Food Inspector that another sample be sent to him for analysis. The sample that was retained by the Food Inspector under Section 1 l(l)(c)(iii) of the Act was thereafter sent to the Public Analyst by the Food Inspector on 24-2-1975 and the Public Analyst after analysing the sample submitted his report on 24-3-1975. 4. The learned Magistrate held that the report of the Public Analyst was not admissible under Section 13(5) of the Act as It was based on the sample that was retained by the Food Inspector which was meant to be produced in Court under Section (4) of the Act and not to be sent to the Public Analyst for analysis. In my opinion the order of the learned Magistrate is clearly illegal as under Section 13(5) of the Act a report of the Public Analyst unless it has been superseded under sub-section (3) of Section 13 of the Act by the certificate issued by the Director of the Central Food Laboratory is admissible in evidence. It is immaterial whether this report is based on the first sample sent to the Public Analyst or the second sample sent to the Public Analyst which was meant for production in the Court under Section 11(4) of the act. The violation of Section 11(4) of the Act has nothing to do with the admissibility of the report of the Public Analyst under section 13(5) of the Act. 5. The violation of Section 11(4) of the Act has nothing to do with the admissibility of the report of the Public Analyst under section 13(5) of the Act. 5. It is true that the order of the learned Magistrate dated 16-3-1978 is an interlocutory order but this Court has jurisdiction to quash interlocutory orders in the exercise of its inherent powers. I am fortified in my view by the decision of the Supreme Court in Madhu Limaya v. State of Maharashtra, (1978 A.I.R. S.C. 47) in which it has been held : "On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles, enumerated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly." 6. This application is accordingly allowed and the order of the Chief Judicial Magistrate, Ghaziabad dated 16-3-1978 is quashed.