Ramakant v. The State of Maharashtra, Through Shri N.M.Acharaya, Food Inspector, Office of Food

Mr.Amit Mukhedkar, Adv., for the petitioner. Mr.N.B.Patil, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE:15/2/2011 *** PER COURT :

Heard Mr.Mukhedkar, learned Counsel for the petitioner/accused. The accused is facing prosecution vide RCC No.71/2009( Old RCC No. 97/1999) on the file of learned Judicial Magistrate, First Class, Lohara, taluka Omarga, dist. Osmanabad. 2 CR.WP NO.579/2010

In the said proceedings an application below Exh.57 was moved by the accused/petitioner dt.3rd April, 2008, urging to call the sanctioning authority, the Joint Commissioner Mr. Satpute as the Court has marked at Exh.36 the consent recorded by Mr. Satpute. According to the accused/petitioner, the material aspects were not considered by the sanctioning/consenting authority while granting consent and since it was without application of mind, necessary details are to be extracted. It was also informed, it was obligatory for the prosecution to have examined the Joint Commissioner Mr.Satpute who has issued consent letter ( marked Exh.36).

Learned Judge declined to entertain the application basically recording that main purpose of the accused/petitioner is to protract the proceedings and, taking recourse to Section 243(2) of Cr.P.C., the learned Judge did not yield to his request.

Mr.Mukhedkar invites my attention to order dt.13th Oct.,2010 and 27th Oct.,2010, in a similarly placed situation in Criminal Writ Petition No.572/2010. It was arising out of RCC No.72/2009, pending before the same learned Judge, arising out of infraction of Section 16 of 3 CR.WP NO.579/2010 Food Adulteration Act, 1954. In the said case, again, identical issue of sanction/consent by the Joint Commissioner Mr. Satpute crept in and consent letter dt. Exh.41 was questioned. This Court directed examination or calling of Mr. Satpute and for that purpose said petitioner was directed to deposit Rs.10,000/- (Rs. ten thousand).

4. It is imperative that the learned Judge should have allowed the application to examine the sanctioning/consenting authority Mr. Satpute. For that purpose, formal proof, in the form of examination in chief, was imperative and then the cross examination. Though record rebels against the accused/petitioner, as he has successfully protracted the matter, however, his defense and the rights should not have been foreclosed. Consequently, the order refusing Exh.57 is set aside. Following arrangement is made. ORDER (a) Application allowed. The order below Exh.57 set aside. The accused/applicant shall deposit an amount of Rs.10,000/- before the learned Judicial Magistrate, First Class, on or before 24th Feb.,2011. From the amount of Rs. 10,000/- (Rs. ten thousand), expenses incurred by the witness shall be deducted and paid to the witness. Upon such deposition, the learned Judge shall issue summons to the learned Joint 4 CR.WP NO.579/2010 Commissioner Mr. Satpute as prosecution witness, and after his formal examination in chief, opportunity be given to the accused/applicant to cross examine him in context with consent letter Exh.36 which has been marked by the learned Judge. Writ Petition allowed to the extent only as above. (K.U.CHANDIWAL) JUDGE agp/579-10crwp