ORDER
Vinod Prasad, J.
1. The present revision has been filed by the revisionist Shashi Kant Gupta against the impugned judgment and order dated 17.4.1985 passed by First Additional Sessions Judge, Jhansi in Shashi Kant Gupta v. State of U.P. Criminal Appeal No. 308 of 1984; decided on 17-4-1985, under Section 7/16 Prevention of Food Adulteration Act, P.S. Garotha, district Jhansi. By the impugned judgment and order the lower Appellate Court had set aside the trial Court's order and had remanded the case back for rehearing.
2. The factual matrix were that the sample of 450 grams of whole turmeric was taken by P.W. 1, O.S. Sengar, Food Inspector from the shop of the revisionist on 29.9.1981 at 3.15 P.M. after giving notice in form-6 (Ex. Ka-1). The receipt of the purchase (Ex. Ka-2), inspection note (Ex. Ka-3) and Form No. 7 (Code slip) (Ex. Ka-4) were prepared by him and purchase receipt was got signed by the revisionist at the time of taking of sample. He sealed the sample into three philes, the code slip was pasted and one sample was dispatched for analysis to the Public Analyst. Other two samples were deposited with the local health authority/Chief Medical Officer, Jhansi. The public analysist vide its report dated 9.11.1981, Ex. Ka-5 opined that the sample was adulterated as it contained more than five per cent of the insect damages matter. After receipt of the public analyst report sanction for prosecution was applied for and was granted by Local Health Authority/C.M.O. on 20.2.1982. Pursuant it the complaint was filed in the Court of Judicial Magistrate, 1st Jhansi by the Food Inspector on 19.3.1982 against the revisionist. Notice under Section 13(2) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, was sent to the revisionist accused on 25.3.1982 by Food Clerk and the same was received by him. Charge was framed, against accused, on 4.9.1982 under Section 7/16 Prevention of Food Adulteration Act, which was denied by him and hence he was tried.
3. In the trial, the prosecution examined Food Inspector, O.S. Sengar as P.W. 1 and food clerk, J.B. Singh as P.W. 2. No other witness was produced by the prosecution.
4. The plea of the accused was that of denied and his defence was that he had gone to the School and while returning from there the Food Inspector, on the pretext of renewal of license, got his signatures on papers and no sample was taken from his possession. The accused revisionist examined Hari Kishan D.W. 1 in his defence.
5. The trial Court believed the prosecution case and finding the accused guilty of the offence under Section 7/16 of the Act, convicted him for six months R.I. and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo three months further R.I. vide his judgment and order dated 30.7.1984. The conviction was challenged in appeal and the lower Appellate Court, First Additional Sessions Judge, Jhansi vide his impugned judgment dated, 17.4.1985 allowed the appeal, set aside the order of trial Magistrate and directed the case to be reheard and fixed 17.5.1985 for the presence of the parties. Challenge has been thrown to the appellate Court's order in the instant revision.
6. I have heard Sri V. Shandilya in support of the revision and learned A.G.A. in opposition.
7. The Counsel for the revisionist submitted that the order passed by the lower appellate Court is illegal, perverse and there was not reason for it to remand the case back for rehearing. He submitted that the grounds on which the rehearing was ordered are not tenable in law and therefore the impugned judgment deserves to be set aside. He submitted that incomplete examination of accused under Section 313 Cr.P.C., which has not caused any prejudice to him, can't be a ground for remand, as the lower Appellate Court itself was competent to cure the defect. He further contended that the remand of the case for consideration of various rulings, which were cited before trial Court and which had not been considered by it, on the point that whole turmeric cannot be said to be adulterated on the basis of public analyst report is not legal and justified. Thus, he contended that the impugned appellate Court's judgment is wholly perverse and illegal and deserves to be set aside and the instant revision deserves to be allowed.
8. Learned A.G.A. on the contrary submitted that the defect in Section 313 Cr.P.C. prejudiced the case of the accused and therefore, the impugned order of remand for rehearing by the lower Appellate Court was fully justified.
9. In view of the rival submission, I have perused the original record of the lower Court and have gone through the judgments of both the Courts below.
10. A glimpse of law on the subject will be fruitful for a proper decision of the controversy raised in the revision. It is to be noted that the Act is not a self-content code. For the procedure of trial and hearing of the appeal, it has to fall back upon the Code of Criminal Procedure, 1973. The lower Appellate Court derived its power of deciding the appeal from Section 386 Cr.P.C. It can remand the case for rehearing when either the whole trial is illegal or none-curable defect has occurred during it, which has caused prejudice to the accused and/or to the prosecution. Remand on mere technicalities cannot be ordered. Such a course, if adopted, would open the flood-gate for Courts and prolong the litigation to endless period, which will be hazardous to the justice delivery system. It has been reiterated by the Apex Court that the 'remand is an exception and not a rule and ought, therefore, to be avoided as far as possible in the interest of expeditious through fair disposal of the cases.' The practice of remanding the case back on mere technicalities, which does not prejudice the case of either side, should be deprecated. A reference may be made to the cases reported in State of Bengal v. Liasal Haq : 1989CriLJ865 v. Mohinder Singh v. State of Punjab : 1986CriLJ834 .
11. Applying the said principle when I cogilated over the facts of the present case it transpired that insect infested food was added within the purview of Act and Prevention of Food Adulteration Rules, 1955 through category A.05.20 and was enforced vide notification on GSR-1417 dated 20.9.1976 with effect from 2.10.1976.
12. The charge framed against the revisionist reads thus:
Yah ki dinank 29.9.1981 ko 2 baje din aapki dukan sthit qasba Garotha ka nirikshan Shri Onkar Singh Sengar Khadya Nirichhak ne kiya aur aapse 450 gram haldi sabut rangin 1.60 paise nagad dekar kharid jiski janch Jan Vikshleshak U.P. Lucknow dwara karai gayi to namune me keet bhachhit haldiki matra nirdharit seema 5 pratikshat se adhik payee gayee aur praka namune ko Kilawat ghoshit kiya. Aapka yah apradh Khadya Up Mikshran Nivaran Adhiniyam Ki Dhara 7/1 ke saathpathit dhara 16/1-A-1 ke antergat dandniya apradh hai tatha mere sangyan me hai.
13. Transliterated in means that on 29.9.1981 at 2.00 P.M. your shop situated in Qasba Garotha was inspected by Food Inspector, Onkar Singh Sengar and he purchased 450 grams of coloured whole turmeric after paying Rs. 1.60 in cash, which was got analysis by the Public Analyst, Lucknow and it was found that the same was insect demand in more than permissible limits of five per cent and consequently the sample was found to be adulterated. This offence is punishable under the Prevention of Food Adulteration Act, section 7/16 read with Section 16(1-A-1) and is cognizable by me.
14. Thus, it is clear that the adulteration mentioned in the Public Analyst report was specifically explained to the accused in the charge. The said charge was read out to the accused who denied the same after being understood the same and then he claimed to be tried. Further from his own admission it is clear that the accused revisionist had received by the Public Analyst report, which was in Hindi. He being a literate man must have read the Public Analyst report and thus was fully aware of its contents. Even during the evidences he had cross examined P.W. 1 and it was asked that the sample of turmeric was got sealed at the place of incident itself and he had suggested him that the sample of turmeric was not taken from him and he was made to sign of blank papers. Thus, all these facts unerringly show that the accused was fully aware of the nature of adulteration in Haldi and consequently the offence for which he was prosecuted. In view of these facts, the accused was never prejudiced in his defence and he was well aware of the nature of adulteration alleged. The Public Analyst report was gravemen of the evidence and the same was put to the accused as has been mentioned by the lower Appellate Court itself. Mere technically of not putting word insect infestation under Section 313 Cr.P.C., when the accused had knowledge of adulteration was of no consequence as it did not prejudice his case and in his defence. Consequently, it cannot be said that there was an illegal trial or miscarriage of justice. Thus for mere technicalities the remand of the case for rehearing could not have been ordered by the lower Appellate Court.
15. The other submission of the learned Counsel for the revisionist that the case cannot be remanded because certain decisions were cited by the accused for the submission that the offence of adulteration is not made out which has not been referred in the trial Court's order is also well founded. The lower Appellate Court being a Court of facts itself could have decided it on the basis of the various rulings cited before it, which were not mentioned in the judgment vis-a-vis with the evidence adduced in the case. In fact, appellate Court would have done well if it would had taken up this submission first and examined it before adverting to other submissions. If the analyst report did not make out any adulteration under the Act then the prosecution was found to fail. This question goes to the very root of the charged offence and the lower Appellate Court by not examining the same had eschewed its responsibility. If no adulteration in food (Haldi) was made out there was no question of any remand, as the charge against the revisionist would have failed. The ruling relied upon by the lower Appellate Court Abdul Shamim v. State of U.P. is clearly distinguishable from the facts of the present case. In that case sample was adulterated with Coaltar dye Rhodamine B and the accused was never informed about the same. The lower Appellate Court did not advert to the fact that in the said judgment nothing has been said regarding the charge framed and receiving of analyst report. It is mentioned in the judgment-'It was not put to the applicant as to what was in adulteration for which he was being charged.' That was a judgment on the facts of that case only. Thus the ruling relied upon by the lower appellate Court does not help at all the respondents state in the present revision.
16. Consequently, in my opinion, there was no justification for the lower Appellate Court to remand the appeal back for rehearing.
17. In view of the discussion made above, the revision deserves to be allowed and the impugned order passed by the lower Appellate Court deserve to be set aside. The matter is very old but it will not be appropriate for this Court to decide the same on its merit, under the revisional jurisdiction, when the appeal has not been decided on its merit. Consequently, the revision is allowed. Lower Appellate Court is directed to rehear the appeal on its merit and decide the same within a period of two months from the date of the receipt of the record. Let the record of the trial Court, which has been sent to this Court be retransmitted to the lower Appellate Court within a period of ten days from today.