Brijesh Tiwari and Another vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 33830 of 2025

Brijesh Tiwari And Another

.....Applicant(s)

Versus State of U.P. .....Opposite Party(s) Counsel for Applicant(s) : Harsh Vardhan Shastri, Ram Ashish Pandey Counsel for Opposite Party(s) : G.A. Court No. - 77

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HON'BLE SAURABH SRIVASTAVA, J.

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Heard learned counsel for applicants and learned AGA for State.

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Present application has been preferred with prayer to quash the order dated 04.07.2025 passed by learned Additional Chief Judicial Magistrate, Court no. 1, Etawah in Case no. 22 of 2011 i.e. State vs. Brijesh Tiwari and order dated 22.07.2025 passed by learned revisional court of Session Judge, Etawah in Criminal Revision no. 150 of 2025 i.e. Brijesh Tiwari and another vs. State of U.P. under Section 7/16 of Prevention of Food Adulteration Act, 1955, PS- Kotwali Etawah, District Etawah.

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Learned counsel for applicants submitted that on dated 1.11.2010, Food Inspector, District Etawah while random checking at the shop of applicants collected sample of ' khoya ' for analysis which was alleged to be sold by the applicants. The sample was sent to State Laboratory for analysis on dated 4.11.2010 and the analysis report was received on dated 11.12.2010 wherein it has been found that sample is adulterated. Thereafter, applicants were extended opportunity by City Magistrate/Local Health Authority, Etawah for getting the sample analysed by Central Laboratory, Mysore. However, meanwhile criminal complaint case has already been preferred by the concerned Food Inspector, Etawah against the applicants before the court of learned Additional Chief Judicial Magistrate, Etawah under section 7/16 Prevention of Food Adulteration Act, 1954. Applicants availed the opportunity for getting the sample analysed by Central Laboratory, Mysore and in this regard they deposited amount of Rs. 1000/- through demand draft before learned court concerned whereupon vide order dated 21.05.2011 it was directed to sent the sample again for analysis but the

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Food Inspector, concerned flouted the order dated 21.05.2011 passed by learned court below and sent the sample to the Central Laboratory Mysore in the month of December, 2011 pursuant to which report dated 04.01.2012 has been received wherein it has been mentioned that due to fungal growth sample was found unfit for analysis.

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Thereafter, applicants submitted application dated 09.12.2024 before learned court of Additional Chief Judicial Magistrate-I, Etawah with the prayer that since applicants are not responsible for the delay caused at the behest of concerned Food Inspector and once the sample has not been found fit for analysis, the complaint case registered against the applicants is liable to be rejected. Over the application dated 09.12.2024, learned Additional Chief Judicial Magistrate-I, Etawah, passed the impugned order dated 04.07.2025 by way of rejecting the said application. Being aggrieved with the order dated 04.07.2025, applicants preferred revision before learned court concerned but the same has also been rejected vide impugned order dated 22.07.2025.

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Learned counsel for applicants contended that both the learned courts below have not considered the facts and circumstances of the case and arbitrarily passed the orders impugned. For substantiating his arguments, learned counsel for applicants relied upon judgement rendered by Hon'ble Apex Court in case of Municipal Corporation of Delhi vs. Ghisa Ram reported in 1967 AIR (SC) 970 .

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Per contra, learned AGA vehemently opposed the prayer sought through instant application.

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After hearing the rival submissions advanced by learned counsels for the parties and perusing the records, this Court finds that impugned order dated 4.7.2025 has been passed by way of observing that the argument raised at the behest of applicant is subject matter of trial and can only be adjudicated at the stage of leading evidences. The finding recorded by learned court of Additional Chief Judicial Magistrate, Court no. 1, Etawah while passing impugned order dated 4.7.2025 which has been upheld by learned Revisional Court vide order dated 22.7.2025 is highly justified and requires no interference by this Court. Moreover, learned counsel for the applicants relied upon judgment rendered by Hon'ble Apex Court in case of Municipal Corporation of Delhi (supra) wherein the determination whatsoever has been drawn in favour of the appellant was the outcome of the trial through which the person named in the appeal

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mentioned in the judgment rendered by Hon'ble Apex Court has been acquitted over which the appeal has been preferred but in the instant matter, it is a very pre-mature stage for consideration of the determination drawn by Hon'ble Apex Court since the matter is still to be tried by learned concerned court and as such none of the grounds are convincing for seeking interference in shape of seeking quash of impugned orders as prayed through instant application hence the application under Section 528 BNSS is devoid of merits and is accordingly dismissed .

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(Saurabh Srivastava,J.)

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September 15, 2025 Shaswat

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Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad

Brijesh Tiwari and Another v. State of U.P.

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Brijesh Tiwari and Another v. State of U.P.

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