Bhagat Stores and ors. Vs. State - 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].orderk.m. mishra, actg. j.c.1. the petitioners nos. 2 and 3, partners of petitioner no. 1, which is a partnership firm dealing in foodgrains, were each convicted and sentenced to nine months' rule i. and a fine of rupees 1,000/- under sections 7 and 16 of the prevention of food adulteration act, 1954, to be hereafter referred as 'the act'. the firm was also convicted and sentenced to pay a fine of rs. 1,000/-under the aforesaid sections. in appeal that was preferred the learned sessions j judge merely reduced the sentence imposed on petitioners nos. 2 and 3 from nine months to six months. being aggrieved by the aforesaid decision, the petitioners have now filed this present revision.2. the following facts are not in dispute. on 17-2-l975 shri purshottam sinari, foodinspector, pw 1, attached to the directorate of health services, panaji, visited the shop of the petitioners and purchased 750 gms, of jawar from petitioner no. 2a. all th legal formalities were duly observed in the matter of purchase and seizure of the goods. the public analyst analysing the sample sent to him reported that it contained damaged grains in excess of the permissible limit. after obtaining sanction from the drugs controller, p.w. lodged a written complaint and this is how the petitioners were placed on trial and finally convicted and sentenced as stated above.3. at the forefront of his argument, the learned counsel for the petitioners has submitted that the prosecution of the accused was without proper sanction in the sense that there is nothing on record to show that the sanctioning authority had applied its mind which is a basic requirement under section 20 (1) of the act. it is not in dispute that the drugs controller of the directorate of health services, panaji, is the authority to sanction prosecution. exh. p-6 which is a copy of the order sanctioning the prosecution reads as follows:-no. dhs/d-c-pfaa-76/89,govt. of goa, daman and diu,directorate of health services,office of the drugs controller,panaji-goa.dated : 23rd april, 1975.3 vaisakha, 1897.

Judgment:
ORDER

K.M. Mishra, Actg. J.C.

1. The petitioners Nos. 2 and 3, partners of petitioner No. 1, which is a partnership firm dealing in foodgrains, were each convicted and sentenced to nine months' Rule I. and a fine of Rupees 1,000/- Under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, to be hereafter referred as 'the Act'. The firm was also convicted and sentenced to pay a fine of Rs. 1,000/-under the aforesaid Sections. In appeal that was preferred the learned sessions J Judge merely reduced the sentence imposed on petitioners Nos. 2 and 3 from nine months to six months. Being aggrieved by the aforesaid decision, the petitioners have now filed this present revision.

2. The following facts are not in dispute. On 17-2-L975 Shri Purshottam Sinari, FoodInspector, PW 1, attached to the Directorate of Health Services, Panaji, visited the shop of the petitioners and purchased 750 gms, of Jawar from petitioner No. 2A. All th legal formalities were duly observed in the matter of purchase and seizure of the goods. The Public Analyst analysing the sample sent to him reported that it contained damaged grains in excess of the permissible limit. After obtaining sanction from the Drugs Controller, P.W. lodged a written complaint and this is how the petitioners were placed on trial and finally convicted and sentenced as stated above.

3. At the forefront of his argument, the learned Counsel for the petitioners has submitted that the prosecution of the accused was without proper sanction in the sense that there is nothing on record to show that the sanctioning authority had applied its mind which is a basic requirement Under Section 20 (1) of the Act. It is not in dispute that the Drugs Controller of the Directorate of Health Services, Panaji, is the authority to sanction prosecution. Exh. P-6 which is a copy of the order sanctioning the prosecution reads as follows:-

No. DHS/D-C-PFAA-76/89,

Govt. of Goa, Daman and Diu,

Directorate of Health Services,

Office of the Drugs Controller,

Panaji-Goa.

Dated : 23rd April, 1975.

3 Vaisakha, 1897.