The particulars of the offence must be stated to the accused as required by S. 242 of the Criminal Procedure Code, and the omission to do so may occasion a failure of justice.

JUDGMENT

MISRA, J. :- The petitioner is a shop-keeper at the daily market, Unit No. 1, New Capital, Bhubaneswar. At 9-50 a.m. on 30-11-1965, Sri B. Biswal, Food and Sanitary Inspector in the company of one D. S. Misra, Vigilance Sub-Inspector and R. K. Pal, A. S. I. of Police arrived at the shop of the petitioner. No independent witnesses were present. Sri V. S. Rao, Magistrate, 1st Class, Bhubaneswar went on mobile duty, followed the raiding party and remained at a distance. In presence of the Vigilance S. I. and the A. S. I., the Food and Sanitary Inspector seized 60 kg. of Motor (peas) and 10 Kgs of mustard oil. He submitted a prosecution report to the Magistrate Sri V. S. Rao giving the description of the offence thus :

"The accused is selling the food article such as Motor, Mustard Oil which is insect infested and the mustard oil is adulterated by mixing foreign matters. Hence is noxious and unfit for human consumption. So the accused is liable for prosecution under S. 273, Penal Code-Motor-60 kg. Mustard oil-10 kg."

2. The accused was produced before the Magistrate by the Food and Sanitary Inspector. The learned Magistrate stated the particulars of the offence under S. 273, Penal Code thus:

"Q. That on 30-11-65 you were selling the Motor and mustard oil ?

A. Yes. I am guilty."

3. Thereafter, the Magistrate convicted the petitioner on his own plea and sentenced him to pay a fine of Rs. 100/-. in default to undergo S. I. for one month. The seized articles were directed to be destroyed after the appeal period was over.

4. There was a summary trial and hence a revision has been filed in the High Court. Mr. Rath for the petitioner advanced the following contentions :

(i) The accused asked to be defended by a lawyer. The learned Magistrate refused the prayer in violation of Art. 22 of the Constitution and as such the entire proceeding is illegal.

(ii) The Magistrate did not comply with the provisions of S. 242, Criminal P.C. as the particulars of the offence were not stated.

On that ground alone the trial was vitiated. At any rate it has occasioned failure of justice and the accused is entitled to benefit of doubt.

(iii) Even on the particulars stated to the accused, no offence is made out.

5. The first contention is that the raid of the shop, seizure of the article, production of the petitioner before the Magistrate and the examination by him were done within a short period. The Magistrate refused the assistance of an advocate and as such Art. 22 of the Constitution is infringed.

Article 22 confers a right on the accused to be defended by a legal practitioner if he demands it. The petitioner asserted that he wanted time for engagement of a counsel. In his explanation, the Magistrate refuted it. The order-sheet does not show that the petitioner made such a prayer. Prima facie the order-sheet would be taken as representing the correct state of affairs. On the facts of this case, I hold that the petitioner did not make a prayer for engaging a counsel and the Magistrate did not refuse such a prayer.

Unless the accused insists on the exercise of his right to get the assistance of a legal practitioner, Art. 22 is not violated. See Vol. (1966) 32 Cut lt 396 : (air 1967 Orissa 37), Hadu Sahu v. State and air 1965 SC 247, Ram Sarup v. Union of India. The first contention has no merit and must be rejected.

6. The other two contentions may be noticed. Section 273, Penal Code reads thus :

"Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

It is not disputed that the petitioner had exposed the article seized for sale. The petitioner was not given a copy of the prosecution report and thus did not kn