In a warrant case, the accused does not have a right to cross-examine witnesses examined by the prosecution before the charge stage, and the evidence of such witnesses can be used against the accused, even if the accused did not have the opportunity to cross-examine them.

( 1 ) THE petitioner is hereby assailing correctness, propriety and legality of the order passed by the Chief-Judicial Magistrate, Dhar, in the matter of Criminal Case No. 1041/78 which has been confirmed by the Second Additional Sessions Judge, Dhar in Criminal Appeal No. 108/94. The learned CJM Dhar had convicted the petitioner for offences punishable under Sections 7 (1) read with Sections 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'adulteration Act' ). The learned CJM had sentenced the petitioner with RI for six months and fine of Rs. 1,000. 00, in default further RI for three months, for the above mentioned offences.

( 2 ) THE prosecution case, in brief, can he stated as mentioned under :on 5-9-1978 Food Inspector purchased 660 ml. of milk form the petitioner for the purpose of analysis. The said milk was stored by him in dry and clean bottles as per procedure. One bottle was sent to the office of the, Public Analyst and two other bottles were sent to local authority. The Public Analyst found that the said milk was adulterated and was not confirming the standard prescribed for buffalo milk. The said milk was containing fat 6. 1 per cent and solids non fat 7. 872 per cent.

( 3 ) AT the time of trial, the prosecution had examined FInspector Shri Chandrakant Karandikar on 24-7-1979 before the stage of framing of charge against the accused (present petitioner ). The prosecution had also examined Vijay Singh Onkar as well as Baboolal Naryan as prosecution witnesses before framing of the charge stage. The present petitioner did not cross-examine any of the witnesses. After the petitioner (accused) was examined under Section 313 Cr. P. C. 1973 (hereinafter referred to as 'code') can 6-11-1984, Shri Karandikar was not available for cross-examination because he had died.

( 4 ) THE learned CJM pronounced the judgment on 29-11-1984 in which he convicted and sentenced the petitioner as mentioned above. In the said judgment the learned CJM held that no prejudice was caused to the petitioner (accused) because of non-availability of Shri Karandikar. Food Inspector, for cross-examination because when he had opportunity to cross-examine him, he did not cross-examine him. The learned CJM held that in view of Section 33 of the Evidence Act, if the witness is dead or otherwise not available, the result of not recalling the witness for cross-examination is not that his previous evidence can be expunged because the evidence which he gave before the charge continues to be relevant under Section 33 of the Evidence Act. In view of that, he accepted the evidence of Shri Karandikar, Food Inspector, against the petitioner and passed the order of conviction and sentence against the petitioner solely relying on it. It is to be mentioned here that the panch-witnesses had not supported the evidence of Food Inspector Shri Karandikar.

( 5 ) THE act of the learned CJM accepting the evidence of Karandikar, Food Inspector, and holding that by his evidence prosecution had proved the guilt against the accused (present revisioner-petitioner) and thereby convicting and sentencing the applicant for the offences mentioned above is the subject matter of challenge in this revision-petition.

( 6 ) BEFORE the learned ASJ Dhar, it was contended on behalf of the present petitioner that no advocate named Joshi was appearing for the present petitioner in the said criminal case which was before the learned CJM Dhar. Therefore, the mention of Shri Joshi Advocate in the order-sheet, below, the evidence of Food Inspector Chandrakant Karandikar, was totally incorrect. It was contended on behalf of the petitioner, that Shri Joshi Advocate had not filed Vaklatnama for the present petitioner in the said proceedings. The learned ASJ while dealing with this contention held that there was no substance in that contention because it was not necessary for an Advocate to file Vakalatnama on behalf of the accused for appear