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2002 DIGILAW 1190 (ALL)

MEWA LAL v. STATE OF UTTAR PRADESH

2002-09-06

U.S.TRIPATHI

body2002
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 3-8-2002 passed by Special Judge (E. C. Act)/additional Sessions Judge, Jaunpur in Criminal Appeal No. 38 of 1998 dismissing the appeal in default and sending back the record for executing the sentence awarded to the applicant. ( 2 ) IT appears that the applicant was tried in Criminal Case No. 1421 of 1992 for the offence punishable under Sections 7/16 of Prevention of Food Adulteration Act. The facts of the case were that on 24-11-1985 at about 2 p. m. , the applicant was found exposing 22 kg. mustard oil for sale in village Pawara. P. S. Pawara, district Jaunpur. The Food Inspector inspected the shop of the applicant and suspecting adulteration in the mustard oil took sample of 375 grams mustard oil on payment of a sum of Rs. 4. 50 P. as its price, vide receipt. The above sample was divided into three parts kept in separate dry and clean bottles and sealed separately. A spot memo was also prepared. One part of the sample was sent to Public Analyst for analysis and report. The Public Analyst, vide report dated 3-1-1986 reported that the sample of mustard oil contained 18% Tisi oil and was adulterated. After receipt of report of Public Analyst, a copy of the same was sent to the applicant and after obtaining sanction from the Chief Medical Officer, the Food Inspector filed complaint against him. The applicant was summoned by the learned Magistrate for trial under Sections 7/16 Prevention of Food Adulteration Act. ( 3 ) DURING trial, the prosecution examined Chandrakant Singh, Food Inspector (P. W. 1) and Harihar Chaubey (P. W. 2 ). The learned Magistrate on considering evidence of the prosecution held that applicant was found selling adulterated mustard oil and offence punishable under Sections 7/16 Prevention of Food Adulteration Act was made out against him. With these findings, he convicted him under Section 16 (1) (a) of Prevention of Food Adulteration Act and sentenced him to undergo R. I. for a period of six months and pay a fine of Rs. 2000. 00, vide judgment and order dated 31-8-1998. ( 4 ) AGGRIEVED with the above order, the applicant filed Criminal Appeal No. 38 of 1998 before the learned Sessions Judge. 2000. 00, vide judgment and order dated 31-8-1998. ( 4 ) AGGRIEVED with the above order, the applicant filed Criminal Appeal No. 38 of 1998 before the learned Sessions Judge. The above appeal was, however, transferred to the Court of Special Judge/additional Sessions Judge, Jaunpur for disposal according to law. ( 5 ) ON 3-8-2002 the appeal was fixed for hearing. It appears that none appeared on the said date and therefore, the learned Additional Sessions Judge passed the following order :-3-8-2002 The case called out. The appellant absent on call repeated, it is 4. 00 p. m. ORDER appeal dismissed in default. File send back to Lower Court for execution of his sentence by 30-8-2002. Sd/-" ( 6 ) FROM perusal of the above order of the Appellate Court it is clear that he had dismissed the appeal simply in default of the appellant without deciding it on merit. The Apex Court has held in the case of Bani Singh v. State of U. P. , AIR 1996 SC 2439 : (1996 All LJ 1399) as follows :-IT is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code of Criminal Procedure. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of predence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. The plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. " ( 7 ) IT was further held in the said case law that the Court is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. If the accused is in Jail and cannot, on his own come to the Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. ( 8 ) THE decision of Apex Court in the case of Ram Naresh Yadavs case, AIR 1987 SC 1500 was overruled. ( 9 ) IN this way, in case of absence of appellant or his counsel, the Appellant Court was required to decide the appeal on merit and not in default without considering the merit. The order of the Appellate Court thus cannot be sustained. ( 10 ) THE revision is, accordingly, allowed. Order dated 3-8-2002 passed by Special Judge/additional Sessions Judge, Jaunpur in Criminal Appeal No. 38 of 1998 is set aside and the Additional Sessions Judge is directed to decide the appeal on merit in the light of observations made above. ( 11 ) THE applicant is directed to appear before the Appellate Court on 7-10-2002 and he is also directed to file a certified copy of this order before the Appellate Court. Office is also directed to send a certified copy of this order to the Sessions Judge, Jaunpur within three days. Revision allowed.