JUDGMENT S.L. Kochar, J. Dissatisfied with the judgment dated 7th February, 2003, rendered in Criminal Appeal No. 36/00, by II Additional Sessions Judge, Barwani, thereby dismissing the appeal arising out of order dated 17th December 2002 passed by the Chief Judicial Magistrate, First Class Barwani, in Criminal Case No. 525/90 convicting the applicant for the offence punishable u/s 16(1)(A)(1) of the Prevention of Food Adulteration Act (for short, "the Act") and sentencing him to suffer Rigorous Imprisonment for Six months with the fine of Rupees 1000/-, in default of payment of fine to undergo 2 months further R. I, the applicant has preferred this revision. The prosecution case, in brief, is that on 29th July, 1989, Food Inspector, D.S. Kushwah, reached grocery shop of the applicant and took sample of 450 Gms. of Turmeric power, divided the same in three equal parts and kept in three glass bottles, sealed them and one of them was sent to Public Analyst, for analysis. The sample was found to be adulterated. The applicant was put to trial. Aggrieved, the applicant went up in appeal. Lower appellate Court also finding the applicant guilty for the offence, maintained the conviction and sentenced him as indicated above. The impugned judgment is under challenge in this revision. Solitary submission of the learned counsel appearing for the applicant, assailing the conviction, is that after framing of charge, Food Inspector D.S. Kushwah (PW 1) could not be cross-examined because of his death and as such the applicant was deprived of his valuable right of cross-examination to demolish the prosecution case. His statement recorded u/s 244 of the Code of Criminal Procedure (for short, "the Code") could not be considered u/s 33 of the Evidence Act. Learned Counsel has placed reliance on the judgment passed by learned Single Judge of this Court in the case of Nandram Khemraj Vs. State of Madhya Pradesh and Another, . In oppugnation, learned counsel for Non-applicant has submitted that when Food Inspector D.S. Kushwah (PW 1) was examined u/s 244 of the Code before framing of charge, he was cross-examined by the applicant at length. Whereas in the case of Nandram (supra) the Food Inspector and other witness were examined before framing of charge u/s 244 of the Code but were not at all cross-examined by the accused. Whereas in the case of Nandram (supra) the Food Inspector and other witness were examined before framing of charge u/s 244 of the Code but were not at all cross-examined by the accused. In the instant case, after framing of charge, Food Inspector was not available because of his death. The counsel also submitted that statement of Food Inspector is admissible and could be used by Court, therefore, learned Courts below have not committed any error of law. Having heard learned counsel for the parties and after perusing the record of the case, this Court is of the view that merely because of death of the witness before cross-examination, his evidence does not become inadmissible, though the decree of it to be attached to it, is of course, a question of fact. See Balwant Singh Vs. Ram Charan Singh, , In Re: Bora Narasimhulu, , Mangal Sen vs. Emperor, AIR 1929 Lahore 840, AIR 1927 248 (Rangoon) , Gauri Dutt Marwari Vs. D.K. Dowring and Others, , Muthiah Pillai and Another Vs. Emperor, , Srikishun Jhunjhunwalla Vs. Emperor, , Rex Vs. Daya Shankar Jaitly, , The State Vs. Gajraj, The instant case was instituted upon the complaint by Food Inspector and he was examined and cross-examined u/s 244 of the Code. Thereafter, charges were framed and at the stage of section 246 of the Code, the Food Inspector was not available for cross-examination. Therefore, learned trial Court has used his statement u/s 33 of the Evidence Act. In a similar situation, the Division Bench of Allahabad High Court in the case of Rex (supra) held that the accused u/s 244 of the Code (Old section 252) has right to cross-examine witness/witnesses, and when he exercises his right, section 33 is fully applicable and the evidence can be brought on record. Similar view has been taken by learned Single Judge of this Court in the case of Shantilal vs. Drug Inspector, AIR 1985 EFT 606. In this Judgment learned Single Judge has held that u/s 244 Criminal Procedure Code accused has valuable right to cross-examine the witness to demolish the case set up by the prosecution and to establish, if possible, a case for his discharge. The Division Bench of Rajasthan High Court headed by Mr. K.N. Wanchoo, C.J. in the case of The State Vs. The Division Bench of Rajasthan High Court headed by Mr. K.N. Wanchoo, C.J. in the case of The State Vs. Gajraj, has held as under: The other point that is urged is that even if the witness was incapable of giving evidence, his statement could not be used u/s 33 of the Evidence Act, as the accused did not have the right and opportunity to cross-examine the witness. So far as opportunity is concerned, the accused certainly had the opportunity to cross-examine Ruggha and did actually cross-examine him when he was first produced before the charge. So far as the right is concerned, learned counsel relies on the case of S.C. Mitter cited above, and on two further cases, namely, Emperor Vs. C.A. Mathews, , Lachmi Narain Vs. Emperor, . In Mathews case it was held that the accused has no right to cross-examine till the stage provided in section 256, is reached. The same view was taken in Laxminarayan's case. With all due respects, to the learned Judges, we find ourselves unable to agree with the view taken in these three cases. No reasoning is given in Mitter's case at all, while in Laxminarayan's case learned Judge says that as express Provision is made for cross-examination in section 256, the accused cannot be said to have a right to cross-examine a witness at the earlier stage, though learned judge had to admit that the word 'evidence' used in section 252 means not only in examination-in-chief of the prosecution witness, but also his cross/examination and re-examination if any. He however, held that the accused had no absolute right to cross-examine before the framing of the charge, but added that the Magistrate would generally be exercising a proper discretion if they permitted some cross-examination at least at that stage. We feel that this last observation of the learned Judge detracts from what he has said above, and can only be justified when the accused has a right to cross-examine the witness. Whether he actually does so or not is a different matter. We may, in this connection refer to a number of cases of other Courts, where it has been held, and if we may say so with respect rightly held that an accused has a right of cross-examination even when the witnesses have been examined u/s 252 Criminal Procedure Code. Whether he actually does so or not is a different matter. We may, in this connection refer to a number of cases of other Courts, where it has been held, and if we may say so with respect rightly held that an accused has a right of cross-examination even when the witnesses have been examined u/s 252 Criminal Procedure Code. These cases are : Ramyad Singh vs. Rowther vs. King Emperor; AIR 1920 Pat. 149; Thana Velayudha Nadar Vs. V.S. Subramania Pillai and Others, , and Gurudin vs. Emperor, AIR 1935 Nag. 8. We are therefore, of the opinion that the accused had both the right and opportunity to cross-examine Ruggha and therefore, when he became incapable of giving evidence at a later stage when he was to be cross-examined after the charge, his statement is admissible u/s 33 of the Indian Evidence Act. In the case of Nandram Khemraj (supra) the Food Inspector was examined by the prosecution u/s 244 Criminal Procedure Code (Old section 252) but accused did not cross-examined him whereas in the present case, the Food Inspector was examined and also cross-examined in detail by the accused/applicant u/s 244 Criminal Procedure Code. In the case of Nandram Khemraj (supra) earlier judgment of this Court passed in Shantilal vs. Drug Inspector (supra), has not been considered whereas in this judgment learned Single Judge of this Court has considered that u/s 244 Criminal Procedure Code accused has valuable right to cross-examine the prosecution witness. The various judgments of Division Bench of other High Courts as referred to above have also not been considered in the case of Nandram Khemraj (supra). Therefore, in the opinion of this Court, this judgment is distinguishable on the point involved in the present petition. Thus, in the considered view of this Court on the basis of the aforesaid discussions, learned Courts below have not committed any error in considering the statement of D.S. Kushwah (PW 1) u/s 33 of the Evidence Act who was examined and cross-examined u/s 244, Criminal Procedure Code. In the case on hand, this Court finds substantial error committed by the prosecution that D.S. Kushwah (PW 1) Food Inspector in paragraph 7 has deposed that at the first instance the sample was sent to Public Analyst, Bhopal but without its examination it was returned back vide letter No. 1008-A dated 26-12-1989. In the case on hand, this Court finds substantial error committed by the prosecution that D.S. Kushwah (PW 1) Food Inspector in paragraph 7 has deposed that at the first instance the sample was sent to Public Analyst, Bhopal but without its examination it was returned back vide letter No. 1008-A dated 26-12-1989. It was stated that because of lapse of time, the sample could not be examined and thereafter, u/s 13(2)(e) of the Act, second sample was sent on 8-1-1990 to Public Analyst, Jaipur and its report Ex. P/9 was received. Again in paragraph 5 of cross-examination, the witness stated that Local Health Authority received the sample back from Bhopal Laboratory on 29-12-1989 without report. It is pertinent to note here that this letter was not filed by the prosecution and in the opinion of this Court it is fatal to the prosecution because the Court was deprived to consider exact reasoning for not analysing the same and sending the report by Bhopal Public Analyst within whose jurisdiction Local Health Authority falls. Exh. P/9 is the report by State Central Public Health Laboratory, Rajasthan, Jaipur. The sample was taken on 29-7-1989 and the second sample was sent to Jaipur on 8-1-1990. The return of sample by the Public Analyst Bhopal and non filing of letter by which the sample was sent back thus creates a doubt on the action of the Local Health Authority when the Food Inspector D.S. Kushwah in paragraph 7 has stated that Public Analyst Bhopal had returned the sample without its analysis saying that the same could not be examined because of expiry of time. When the sample was not fit for examination according to the Public Analyst, Bhopal how the same could be fit for State Central Public Health Laboratory Jaipur. Thus, on this count the applicant is entitled to get the benefit of doubt. Consequently, this revision is allowed. The judgment and conviction passed by the Courts below are hereby set aside. Applicant is acquitted of the charges levelled against him and he is ordered to be released forthwith, if not required in any other case. The amount of fine, if deposited, be refunded to him. Record of the Court below be sent back immediately along with copy of this Judgment. Final Result : Allowed