Amaresh Roy, J.
1. This appeal is on behalf of the State and is directed against an order passed by the Sub-Divisional Magistrate of Midnapore (South) on 23-12.1961 in a case in which the respondent Is war Chandra Jana was prosecuted for an alleged offence Under Section 7 (1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 on a complain t filed by the Food Inspector, Sabang, P. H'. Centre in Midnapore. The allegation in substance was that accused Iswar Chandra Jana had sold, exposed and stored for sale Cocoanut oil at Khagrageriahat on 15.5.1961. A sample of the Cocoanut oil was taken and the Public Analyst found it to be adulterated and also to contain mineral oil.
2. The case was being tried before the Sub. Divisional Magistrate by folio wing a Summons Procedure under Cbap. XX of the Criminal P.C. after cognisance was taken on 28.ll. 19Gl. On the very next date fixed in the case tlufc is on 23.127196l the learned Magistrate examined the accused Under Section 242 of the Criminal P.C. He pleaded not guilty. Instantly in the same order the Magistrate proceeded to record an order in these terms :
The place of occurrence is in some muffosil of Sabang P, 8. I cannot accept that Cocoanut oil in muffosil of Bengal cannot (sic) be accepted as an article of food to which the Prevention of Food Adulteration Act, 1954 applies.
Henoe I struok off the case and release the accused.
3. Against that order which tan tamo unta to an order of acquittal present appeal has been preferred by the Superintendent and Be. membrancer of Legal Affairs for the State of West Bengal Under Section 417 (1) of the Criminal P.C. It has been contended on behalf of the appellant before us that in a trial by Suraraons Procedure, after the plea of the accused was taken Under Section 242 of the Criminal P.C. and the plea was one of not guilty, it was the duty of the Magistrate to proceed to hear the complainant and take evidence in support of the prosecution. He had no juris iiotion to acquit an accused person without taking evidence in the case, far less to strike oS the case at that stage.
4. The respondent Iswar Chandra Jana has not appeared before us either in person or by any lawyer appointed by him. State appointed Mr.' S. K. Palit to appear on behalf of the re's. pondentin this appeal. Mr. Palit has appeared before us and argued the case for the res. pondent; but the learned Advocate in his knowledge of the law could not justify the order that has been made by the Magistrate in this case. Section 244 (1) of the Code clearly provides as follows :
If the magistrate does not convict the accused under the preceding Section or if the accused does not make such admission, the Magistrate shall proofed to hear the complainant if any, and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence:Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
The other sub-sections in that Section are not relevant for the purpose of this appeal. But it bas to be noticed that power to acquit has been given by Section 245 (1) and the provisions there also are clear. Section 245 (1) runs as follows:-
If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence if any as he may of his own motion, cause to be produced, and if he thinks fit examining the accused, finds the accused not guilty, he shall record an order of acquittal.
It is astonishing to gee that a First Class Magistrate who was also the Sub-Divisional Magistrate could disobey the provisions in the Code to a degree which appears loudly on the records of this oase and could have made the order in the terms in which it has been made.
5. It is not the notion of the Magistrate whether Cocoanut Oil is used as edible oil in any part of the country that is material, but what is material is that in the Prevention of Food Adulteration Act, 1954 oocoanut oil has been mentioned in the category of edible oil in Appendix B as -Item A. 17 which is the heading of edible oil and Item A. 17.01 is oocoanut oil. Whether the facts alleged would bring the case within the penal provision in the Act could only be decided upon evidence. If the learned Magistrate had'cared to acquaint himself with that provision in the Schedule of the Act and had applied his mind to the Analyst's Report that was appended with the complaint itself for hia own understanding, he could not have made suoh an order which on the face of it is appearing to be a flippant order. The learned Magistrate has not only endeavoured to make a law for himself but he has created a prooedure of criminal trial unknown to. Criminal Procedure Code. His performance deserves severe condemnation and more so when it is a matter relating to food of the people.
6. There is no doubt therefore that this order which tantamounts to an order of acquittal is not only illegal and without jurisdiction, but also is one that has denied justice. We would have set aside.this order unhesitatingly; but the feature of the case is that the offence alleged was an offence committed in 1961. The State appealed and although the appeal was ready for hearing in 1964 neither the State nor the respondent, who was re. arrested and released on bail, took any step for early hearing of the appeal. The respon dent also has not appeared through any lawyer appointed by him. These features taken along with the fact that more than seven years have elapsed from the date of occurrence lead us to, the view that it will not be conducive to justi to order a retrial of the case upon taking denoe which order in the circumstances of th: case must have to be made if the order of the Magistrate is set aside. The case having been disposed of in that way by the Magistrate without taking evidence, in this appeal we are not enabled to dispose of the case upon evidence.
7. For that reason alone, we do not set aside the order of the Magistrate although we have condemned it as illegal and without jurisdiction. The point taken in the appeal on behalf of the State has suceeeded but the appeal ia dismissed in the circumstances mentioned above.
8. I agree.