Abdul Rashid vs State of Haryana

H. K. Sandhu, J.

The brief facts giving rise to this petition under section 482 of the Code of Criminal Procedure for quashing order dated August 20, 1986 passed by Judicial Magistrate First Class, Ferozepur Jhirka, Gurgaon, Annexure P1, charge sheet Annexure P2 and the entire proceedings initiated against the petitioner are as follows :

"On June 6, 1986 in the area of village Shah Chokha, Abdul Rashid was found in possession of two quintals of mixed milk for sale to the public. Food Inspector Shri R. R. Jindal after disclosing his identity, served a notice on the petitioner, in the presence of witnesses with intention to purchase 750 ml of mixed milk for analysis on payment of Rs. 3/. The petitioner refused to accept notice and give sample and rather threatened the Food Inspector with dire consequences. He was thus charged for an offence under sections 16(1)(c) read with (d) of the Prevention of Food Adulteration Act (Act, for short) punishable under section 16 of the Act. The petitioner alleged that the impugned orders were liable to be quashed on the ground that mandatory provisions of the Act had not been complied with according to which summary procedure was to be followed for the decision of the case. The trial Court, however, without giving notice and without affording any opportunity of hearing, ordered that warrant case procedure should be followed. The petitioner had been facing the agony of trial for the last more than five years and delay in trial itself amounted to denial of justice.

In the return filed by the respondent it was averred that the trial Court before commencing the trial formed opinion after hearing the parties and inspecting the documents on the file that the case should be tried as a warrant case, as a sentence of more than one year could be awarded to the petitioner. The orders passed by the trial. Court were quite legal and the same were not liable to be quashed on the grounds mentioned in the petition. As regards the delay in the trial it was alleged that the delay was caused due to lengthy procedure laid down for the trial of a warrant case and due to procedural technicalities and the petitioner could not claim benefit of the same.

I have heard the counsel for the parties.

The main contention of the learned counsel for the petitioner was that all offences under S. 16(1) of the Act were to be tried summarily by specially authorised Magistrates. The Magistrate who was trying the case was specially authorised to try the case summarily, so warrant procedure was wrongly adopted vide Annexure P1. There was noncompliance of the mandatory provisions of the Act which vitiated the trial and the impugned orders were liable to be quashed on this ground. This contention of the learned counsel is, however, without any merit, as in the present case there had not been any violation of the procedure. Under section 16 (A) of the Act, a case can be tried as a warrant case if the Magistrate is of the opinion that the accused deserved greater dose of sentence and makes a note to that effect in writing. In the present case, the Magistrate applied his mind and passed order, Anx. P1 in the presence of the petitioner and his counsel. It was specifically mentioned that sentence in the case of conviction of the petitioner was likely to exceed one year. The petitioner had also desired that the case may be tried as a warrant case. In view of this order it was no longer obligatory on the part of the trial Magistrate to try the petitioner summarily and the trial was being conducted in accordance with law.

It was argued on behalf of the petitioner that there had been delay in the trial of the case. Charge was framed in June, 1986 and the trial had not been completed so far. The proceedings were therefore, liable to be quashed. In support of his contention, the learned counsel placed reliance on the case of Brij Lal vs. State of Haryana 1989(1) Prevention of Food Adulteration Cases 254 and Mahabir Parshad vs. State of Haryana, 1989(1) Prevention of Food Adulteration Cases 282. These authorities are not applicable to the facts of the present case. In both these cases proper,procedure had not been followed and the trial was conducted in violation of the procedure. The petitioners had already undergone trial for more than five years, so instead of remanding the cases for retrial the petitioners were acquitted. In the present case the trial is pending and proper procedure is being followed. The learned Deputy Advocate General contended that the trial was delayed because on two occasions the petitioner absented himself from Court and some times he sought exemption from appearance. The prosecution evidence had been closed and even statement of the petitioner has been recorded. The case is now pending for evidence in defence, if any Delay, thus, cannot be attributed to the prosecution alone and the petitioner cannot get benefit of the same, when the trial of the case can be completed as soon as the petitioner closes his defence. I, there fore, find no merit in this petition and dismiss the same.