Ashok Kumar vs State of Haryana

S. S. Grewal, J.

This revision petition is directed against the order of Additional Sessions Judge, Karnal dated May 7, 1985, whereby the order of conviction and sentence passed against the present revision petitioner under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, was maintained.

In brief facts of the case are that Shri Kali Ram, Government Food Inspector inspected the premises of the revision petitioner known as `Ashoka Grinding Mills'', Kunjpura Road, Karnal, in the presence of Dr. J.S. Sohi and L.K. Sharma 7 Kgs. of powdered chilies were found to be in possession of the revision petitioner which were meant for public sale. After disclosing his identity the Food Inspector purchased 600 grams of powdered chilies on payment of Rs. 12/ and revision petitioner issued a receipt in respect thereof. The powdered chilies so purchased were divided into three equal parts and the same were transferred in three dry and clean bottles which were stopped, labelled and scaled. One of the sample bottles alongwith memo in form VII was sent to the Public Analyst for analysis in a sealed cover whereas, the other two sample bottles wore deposited with the Local Health Authority. Report of the Public Analyst Ex. PD, dated March 30, 1982, was received whereby, the said sample was found to be adulterated, in as much as it had ash insoluble in dilute Hcl 1.58% against the maximum prescribed standard of 1.3%, and grit 1.14%. The Local Health Authority also sent one copy of the report of the Public Analyst to the revision petitioner by registered post giving him intimation that if he so desired he could get the second sample examined from the Director, Central Food Laboratory, Ghaziabad, within a period of ten days of its receipt. Thereafter, prosecution was launched against the revision petitioner on 551982.

On being examined, the revision petitioner put in appearance in the court, as an accused. After recording precharge evidence, charge under section 16 (1)(a)(i) of the Prevention of Food Adulteration Act was framed against the revision petitioner to which he pleaded not guilty and thereafter the petitioner was tried according to warrant procedure case instead of being tried summarily as required by Amending Act 84 which came into force in the State of Haryana from 141975. Notification giving summary powers to the Judicial Magistrate for the purpose of section 16A of the Act to try all the offences under subsection (1) of Section 16 of the Act, according to the summary procedure, was issued on 20th of October, 1977.

The accused in his statement under section 313 Cr.P.C. denied the allegations appearing in evidence against him and pleaded that the powdered chilies from which the sample was taken was not meant for sale. The sample was taken under threat and that he does not indulge in sale of powdered chillies. He further stated that he only had engaged himself in grinding work for which he had obtained a licence. In his defence Ram Chand was examined as DW 1.

I have heard the learned counsel for the parties and perused the evidence on record with their help.

The learned counsel for the revision petitioner submitted that the learned trial Magistrate had erred in law in trying the present revision petitioner by warrant procedure instead of trying him summarily, warranted by law and procedure. Reliance in this respect has rightly been placed by the learned counsel for the revision petitioner on Full Bench authority of this Court in Budh Ram v. State of Haryana, 1985(1) RCR(Crl.) 510 (P&H) : 1985(2) CLR 29 , wherein dealing with this aspect of the case, it was held as under :

"It is quite clear that the Legislature intended that all offences under section 16 (1) of the Act be tried summarily by specially authorised Magistrates, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code."

It was further held in the afore cited authority

"Once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other and they shall have to try every offence under section 16 (1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result of summary trial then in that case after passing such an order in writing, would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence."

The aforesaid authority in Budh Ram''s case was followed by a Single Bench in Nand Lal v. State of Haryana, 1987 Criminal Law Times 119, and it was held that the trial held as a warrant case was not in accordance with law.

Admittedly, in the present case the trial Magistrate neither applied his mind that greater sentence was to be awarded to the offender, than could be awarded as a result of the summary procedure, nor any such order was passed in writing. It was thus, obligatory on the part of the trial Magistrate to try the accused summarily, and follow appropriate procedure in that regard. Thus, in the instant case, the trial, which was held as a warrant case was not in accordance with law.

Faced with this situation, it was contended on behalf of the State that no such objection was taken before the trial Court, or before the appellate Court, and, such an objection cannot be permitted to be raised for the first time in revision petition.

Failure on the part of the trial Court to follow procedure meant for summary trial in the instant case, goes to the root of. the case. Thus, the trial, which is held in violation of the procedure, would be illegal, and not merely irregular, as contended on behalf of the State. This aspect of the case constitutes substantial point of law, which can certainly be permitted to be raised for the first time in revision petition. The objection raised on behalf of the State in this respect is hardly tenable in the circumstances of the case.

In the instant case trial of the petitioner commenced in May, 1982. The revision petitioner has already undergone agony of trial for more than six years. In these circumstances, I do not find it necessary to remand the case for retrial.

Another important aspect of the case is that only a general question about the report of the Public Analyst (Ex. PD) was put to the revision petitioner when he was examined under section 313, Code of Criminal Procedure, by the learned trial Court. The extent of adulteration which was found in the report of the Public Analyst, was not put to the accused in so many words, and, this, to my mind, would cause material prejudice to the accused as far as facts and circumstances of the present case are concerned.

For the foregoing reasons, I accept this revision petition, set aside the order of conviction and sentence passed by the Courts below and hereby acquit the revision petitioner. Fine, if paid, shall be refunded to the revision petitioner after the period of appeal.