2025 (4) TMI 1672

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....Authority, respondent no. 2, Food Safety and Security Act, Prayagraj, according to him, he has full instructions in the matter and he does not propose to file any response. Learned counsel for the applicant submits that the application be decided on the basis of the documents available on record. 4. The case of the applicant is that the applicant is running a medical store by the name of M/s Hind Medical Store in Saharanpur. The applicant claims to have purchased some medicines on 24.02.2024 bearing batch no. IGN-2630, D/MJUN.2023, D/E- MAY.2025 manufactured by M/s I.G. Pharma Ltd. On 15.03.2024, an inspection team under the supervision of the opposite party no. 2 who conducted a raid at the applicants medical store and had taken sample ....

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....024 (Prateek Agarwal Vs. State of U.P. thru. Addl. Chief Secy. Deptt. Home Lko. and another) decided on 26.11.2024 as well as the judgment of Hon'ble Karnataka High Court in Criminal Petition No. 7526 of 2024 (Sri Basanagouda R. Patil (Yatnal) vs. Sri Shivananda S. Patil) decided on 27.09.2024. Submission is that apart from the merits of the matter once the statute itself provides for grant of opportunity before taking cognizance then in the circumstances, the summoning order cannot be sustained and the same is liable to be set aside while granting opportunity to the applicant is to be heard. 7. Learned AGA, on the other hand, submits that though the offences are made out but in view of the provisions contained under proviso to ....

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.... given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received." " 9. This Court in Prateek Agarwal (supra) in para 8 and 9 observed as under.- "8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of th....

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....ted before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter. 11. The proviso indicates that an accused should have an opportunity....