State of Maharashtra Vs. Annappa Balappa Vanjele - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].a.d. tated, j.1. this appeal is directed against judgement and order dated 19th december, 1983 passed by the learned chief judicial magistrate, sangli, in regular criminal case no. 76 of 1982, whereby he acquitted the respondent of the charge under section 7 read with section 16 of the food adulteration act.2. we have gone through the judgment of the trial magistrate and also heard the learned counsel for the parties. in this case permitted colour tartrazine sunset yellow f.c.f. has been used as flavouring agent. rule 30 of the prevention of food adulteration rules provides that the permitted colour shall not exceed 0.2 gram per kilogram of the final food or beverage for consumption. in the present case, the public analyst in his report, does not state as to the percentage of tartrazine sunset yellow f.c.f. found in the sample of kiwam. in the absence of proof that the permitted colour in excess of the quantity mentioned in rule 30 has been used by the respondent, the respondent cannot be held guilty for selling the adulterated food article in question. consequently, the learned trial magistrate was right in acquitting the respondent. there is therefore, no substance in this appeal.3. in the result, this appeal fails and the same is dismissed. bail bonds shall stand cancelled.