B.K. Behera, J.
1. Arising out of the same judgment and order of the appellate Court dismissing the appeal preferred by the petitioners and maintaining the orders of conviction passed against them, these two rivisions have been heard together and will be governed by this common order.
2. The petitioners' firm M/s. Rohit and Company of which the petitioner Sk. Jahir Muhammad was the Manager had sold Besan as per the receipt ( Ext. 7 ) dated 23, 3. 1978 to the shop of M/s. Sukaran Das Purusottam Das at Jaipur Road, as alleged by the prosecution. The Food Inspector ( P. W. 1 ) chose April 1, 1978, to visit the shop at Jaipur Road in the company of P. W. 2 and on finding Besan exposed for sale for human consumption to be adulterated, took sample and after observance of formalities sent it for examination by the Public Analyst and it was found to be adulterated. On obtaining the order of sanction to prosecute the petitioners and the partners of the shop at Jajpur Road, a criminal prosecution was launched. Two witnesses were examined for the prosecution. On a consideration of the evidence, the trial Court found the petitioners to be guilty under Section 16(1)(a) of the Food Adulteration Act and the Manager-petitioner Sk. Jahir Muhammad was sentenced to . undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000-and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months. The partners of the shop at Jajpur Road. were also convicted by the trial Court, but were acquitted on appeal after accepting their case that they had purchased Besan from the firm of the petitioners. The appeal preferred by the petitioners was dismissed.
3. Appearing on behalf of the petitioners, Mr. Mund has contended that the statement of Banwarilal Musakara of M/s. Sukaran Das Purusottam Das that Besan of which sample had been taken from that shop had been purchased from the firm of the petitioners was inadmissible and could not be relied on. It has been Submitted by him that the receipt ( Ext. 7 ) had duly been proved and, therefore, no question could be put to the petitioners with regard to the receipt and consequently the answer of the petitioner Sk. Jahir Muhammad admitting the issue of the receipt to a question improperly put could not be utilised; against the petitioners. It has also been urged on behalf of the petitioners that in the absence of ;proof that Beson exposed for sale in the shop at Jaipur Road was the same article which had allegedly been sold by the firm of the petitioners, no conviction could lie. Mr. Rath, the learned Additional Standing Counsel, has supported the order of conviction against the petitioners. .
4. Coming first to the statement of Banwarilal Musakara before P. W. 1 in the presence of P. W. 2 that the article in question had been purchased from the firm of the petitioners, the. contention raised on behalf of the petitioners shall prevail for the reasons to follow.
5. Section 30 of the Evidence Act is the only provision permitting the reception of the statement of a co-accused person which is not a substantive piece of evidence and cannot sustain a charge against another accused, but can only be pressed into service to lend assurance to the conclusion of guilt which can be rested on the other evidence against him. Section 30 related to a confessional statement of an accused person implicating himself and the co-accused made prior to and proved at the trial. In the instant case, the person making the statement had not implicated himself. The statement of Banwarilal Musakara could not, therefore, be availed by the prosecution in support or its case against the petitioners.
6. As provided in Section 313 of the Code of Criminal Procedure. the statement made by an accused is to be considered by the Court which may draw such inference from the answer or refusal to answer as it thinks fit. But the Court is not entitled to draw any inference against a co-accused from the answer of one accused in response to a question put at the trial. A statement made by a co-accused admitting his guilt wholly or partially while being examined by the Court cannot be taken into consideration under Section 30 of the Evidence Act against the other accused.
7. Neither the statement made by Banwarilal Musakara Before P. W. 2 nor his statement at the trial to the effect that the article in question had been purchased from the firm of the petitioners could be considered as legal evidence against the petitioners and the trial and appellate Courts went wrong in relying on such statements in support of the case of the prosecution.
8. Coming next, to the question of admissibility of Ext. 7 which was said to be the receipt showing the alleged sale of Besan by the firm of the petitioners to the shop at Jaipur Road to which the notice of the petitioner Sk. Jahir Muhammad had been draw while the trial Court examined him under Section 313 of the Code of Criminal Procedure which, as would be discussed presently, had been done improperly, this petitioner had admitted the sale as per Ext. 7. Now the question arises as to whether the admission of an accused person in answering to a question improperly put can be considered against him. It has rightly been submitted by the learned counsel for both the sides that Ext. 7 had not duly been proved. The writer of Ext. 7 had not been examined. P. W. 1 had not duly proved this document for which it was marked as M. O. I. while he was under examination. P. W. 2 had merely stated 'this is the said cash memo.' and this document was marked during his evidence as Ext. 7. This witness had not stated that he had been acquainted with the handwriting of the person who had written out Ext. 7. Thus, Ext. 7 had not duly bean proved and admitted in evidence. While examining an accused person, the Court is to give an opportunity to him to explain the circumstances appearing in the evidence against him. No question can be put with regard to a circumstance not appearing in the evidence. Evidence within the meaning of Section 313 would mean legal and admissible evidence, An improper question had been put by the trial Court while examining the petitioner Sk. Jahir Muhammad regarding Ext. 7 and consequently, the answer of this petitioner to a question improperly put was not to be considered as evidence against him.
9. For the aforesaid reasons, the trial and appellate Courts illegally and unjustifiably relied on Ext. 7 in coming to a conclusion that the article in question had been sold by the petitioners.
10. The contention raised on behalf of the petitioners that no case could be said to have been established against the petitioners even assuming that Beson had been sold by the petitioners as per Ext. 7 in the absence of evidence that the same article which had been sold by the petitioners had been exposed for sale for human consumption in the shop at Jaipur Road on the day of the visit of the Food Inspector (P. W. 1) is not without substance. But in view of the findings recorded by me on the other questions raised, it would not be necessary to record a finding thereon.
11. For the foregoing reasons the order of conviction recorded against the petitioners is unfounded and illegal and calls for interference by this Court in its re visional jurisdiction.
12. In the result, the revisions are allowed. The orders of conversation recorded against the petitioners and the sentences passed against the petitioner Sk. Jahir Muhammad are set aside.