(1) CRI.WP. 572.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 572 OF 2010 Tajappa Shankarappa Hawile, Age : 56 years, Occu.: Agri., Proprietor and Vendor of M/s. Mahadev Kirana Stores, R/o Main Road, Jewali, Tq. Lohara, Dist. Osmanabad .. Petitioner (Orig. Accused) VERSUS The State of Maharashtra, Through the Food Inspector, Food and Drugs Administration, M.S. Osmanabad (Copy to be served on Public Prosecutor, High Court, Bench at Aurangabad) .. Respondent (Orig. Complainant) ... Mrs. Anjali Bajpai Dube, Advocate for the Petitioner Mr. V.D. Godbharle, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 27TH OCTOBER, 2010 ORAL ORDER:- 1. The learned Advocate for the petitioner submits that the amount has been deposited as directed vide order dated 13.10.2010. 2. Heard learned Advocate and learned APP. (2) CRI.WP. 572.2010 3. The petitioner challenges order dated 15.2.2010 rendered by the learned Judicial Magistrate (Lohara). 4. The petitioner is accused in R.C.C. 72 of 2009. He has been chargesheeted for offence punishable under section 16 of the Prevention of Food Adulteration Act, 1954. It appears that the prosecution was initiated after issuance of consent letter by the Joint Commissioner Shri Satpute. The consent letter (Ex. 41) is admitted in evidence during course of the statement of the Food Inspector. The petitioner alleged that there was no evidence adduced by the prosecution in respect of the material which was considered while granting the consent. Therefore, the petitioner sought cross-examination of the Joint Commissioner Shri Satpute. The Application was rejected on the ground that it was moved at a belated stage when the matter was fixed for final arguments. It appears that the petitioner did not name the witness for examination as defence witness and, therefore, the learned Magistrate held that it was impermissible to allow the Application. (3) CRI.WP. 572.2010 5. Let it be noted that the petitioner did not wish to examine himself or any witness in his defence. He did not apply for examination of Shri Satpute as defence witness. In fact, his Application was to call Shri Satpute, Joint Commissioner, only for the purpose of cross-examination. It is true that mere cross-examination of witness is not contemplated under the relevant provisions of the Evidence Act. So, if the witness is called then the learned Prosecutor will be required to take examination in chief and, thereafter he could be cross-examined by the petitioner. The examination- in-chief may be of formal nature or a detailed one as the prosecutor may deem it proper. In order to show his bonafides, the petitioner has deposited amount of Rs.10,000/- as directed vide order dated 13.10.2010. The rejection of his Application would amount to denial of proper and fair opportunity to the petitioner. 6. In this view of the matter, the impugned order deserves to be interferred with in the interest of justice. (4) CRI.WP. 572.2010 7. In the result, the Petition is allowed. The impugned order is set aside. The Application filed by the petitioner shall be allowed and after examination-in-chief of the witness named in the Application, he may be allowed to be cross-examined. The necessary T.A. and D.A. shall be paid to the witness from the amount deposited by the petitioner, as per the rules which may include the charges of vehicle allowance as permissible to the witness as if he is on Official duty. The summons to the witness shall be issued immediately after receiving copy of the order which shall be immediately sent by the learned APP and he may act on authentic copy of this order, duly certified by the Sheristedar of this Court. The Petition is accordingly disposed of. Sd/- [V. R. KINGAONKAR, J.] arp