Ashok Kumar vs State of Haryana

S.C. Datta, J.

This revisional petition is directed against the order of the learned Additional Sessions JudgeIV, Rohtak, dated 16.7.1987 whereby the learned Additional Sessions Judge allowed the appeal preferred by the present petitioner and set aside the judgment and order of the conviction and sentence passed by the learned trial Magistrate. Learned Additional Sessions Judge remanded back the case to the trial Court for fresh decision after sending the second part of sample to the Director, Central Food Laboratory, for test in accordance with law. He, however, observed that the right of the appellant (Present petitioner) to have the sample sent to the Director is unqualified and it would be for the Director to say whether the sample was or was not fit for analysis and that if it was not, whether the delay for sending it to him was attributable to the laches of the appellant. He also observed that it will then be for the trial Court to see what value it would attach to the Director''s report.

The facts of the case may be noticed. On 18.6.1984 at about 2.50 P.M., Shri Sube Singh, G.F.I. alongwith Dr. S.K. Wadhwa and one independent witness Ram Nath inspected the premises of the present petitioner situated at old bus stand, Jhajjar and found the appellant exposing for about 21/2 kgs. of unindicated milk contained in a patila. The G.F.I. took sample of the said milk for the purposes of analysis on payment of Rs. 3/ and put it into three dry and clean bottles equally for purposes of examination. One of the sealed bottles was sent to the Public Analyst, Haryana, Chandigarh for analysis and report. On receipt of the report from the Public Analyst, the L.H.A. forwarded a copy of the same to the G.F.I. for lodging a complaint and accordingly a complaint was lodged on 28.7.1984. The L.H.A. was informed to comply with the provisions of Section 13(2) of the Prevention of Food Adulteration Act.

The petitioner appeared before the trial Court for the first time on 12.9.1984 and filed an application alleging that he did not receive a copy of the report from the Public Analyst or from L.H.A. Jhajjar. He challenged the report of the Public Analyst and prayed that the second part of the sample may be sent to the Director, Central Food Laboratory, Ghaziabad at his own risk and responsibility for examination. The learned Magistrate rejected his application on the ground that the said application was not filed within ten days from the date of receipt of the copy of the report of the Public Analyst. The trial proceeded and the petitioner was convicted under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and was ordered to undergo RI for two years and to pay a fine of Rs. 2,000/ in default of payment of fine, to undergo further R.I. for four months.

During arguments before the learned Additional Sessions Judge, the only argument advanced by the petitionerappellant was that the accused had been deprived of his valuable right of getting the second part of the sample analysed from the Director, Central Food Laboratory as enumerated under Section 13(2) of the Act as his application made thereunder had been rejected by the learned Magistrate. It appears the learned Additional Sessions Judge on the authority of cases cited at the bar upheld the contention of the petitionerappellant and held that the learned Magistrate was not justified in rejecting the application of the petitionerappellant under Section 13(2) of the Act only on the ground of delay. Accordingly, the learned Additional Sessions Judge remanded the case back to the trial Court for fresh decision after sending the second part of the sample to the Director, Central Food Laboratory for test in accordance with law.

Learned counsel appearing for the petitioner submits during arguments that the learned Additional Sessions Judge was perfectly justified in holding that the rejection of the application of the petitioner under Section 13(2) of the P.F.A. Act was wholly unjustified. He submits that the delay in making the application is no ground for rejecting the petition of the petitioner. It is admitted case of the prosecution that the report of the Public Analyst was sent to the petitioner through a Peon, but the said Peon has not been examined by the prosecution nor the prosecution had produced any Peon Book or any other Register to show that the said report has, in fact, been received by the petitioner. This being the position and having regard to the assertion made by the petitioner that no copy of the report of Public Analyst was served upon him previously, it could be said that the copy of the report was, in fact, served upon the petitioner earlier to his filing the petition praying for examination of the second part of the sample. In support of his contention, learned lawyer for the petitioner refers to Ram Kumar v. The State of Punjab, 1982 (1) F.A.C. 68. The view which the learned Additional Sessions Judge took also finds support from 1978 (1) F.A.C. 61, Brij Mohan v. State and Municipal Committee, Amritsar v. Babu Lal, 1974 F.A.C. 432. Considering the law on the subject and the judicial pronouncements, I find nothing wrong in the findings of the learned Additional Sessions Judge in this regard.

Learned lawyer for the petitioner assails the order of remand passed by the learned Additional Sessions Judge directing retrial of the present case after examination of the second part of the sample by the Director, Central Food Laboratory. He submits that in the present case, the petitioner was found in possession of about 21/2 kgs. of milk. The said milk was seized as far back as on 18.6.1984 and the proceedings continued till these days and the petitioner had to bear the worry, anxiety, expense and disturbance to his vocation resulting from an unduly prolonged trial and as such, he should not be burdened further with the trouble of facing trial again. He further submits that speedy trial is the essence of justice and inordinate delay in the trial itself constitutes failure of justice. In this connection he refers to a Full Bench judgment of Patna High Court reported as 1990(3) RecentC.R. 302, Madheshwardhari Singh v. State of Bihar. He submits that the right to speedy trial is a fundamental right enshrined under Article 21 of the Constitution of India. In this connection, he also refers to a case reported as 1992 (2) F.A.C. 3, Chander Bhan v. State of Haryana wherein observations of the Lordships of the Supreme Court were quoted. It would appear therefrom that undue delay in trial vitiates the trial itself. I have already noticed that the trial is pending since 1984 and during all these years, the petitioner had to suffer worry, anxiety, expense and disturbance for exposing only 21/2 kgs. of milk stated to be adulterated. I have also earlier noticed that the sample was taken in June, 1984. It is nowhere stated that the samples are intact and available for test. It is also nowhere stated that the samples are in a fit condition to be tested or they have been spoiled. If the result of the Chemical Analysis goes in favour of the accused/petitioner, then there would be no foundation for his prosecution. There being no certainty about the availability of the samples and their fitness for test, it would be a useless exercise to order examination of the sample by the Central Food Laboratory at this stage. Therefore, in my view, it would be really unjust to order retrial of the case after getting the sample examined by the Central Food Laboratory. Consequently, the order of retrial by the learned Additional Sessions Judge cannot be upheld.

As observed above, the trial is continuing for the last more than ten years and that too for exposing only 21/2 kgs. of alleged adulterated milk. I think that it would be in the interest of justice to quash the entire proceedings pending before the learned Magistrate, which I hereby do.

Hence the revision petition is allowed and the order of the learned Additional Sessions Judge, dated 16.7.1987 so far as it directs retrial of the case of the petitioner is set aside and the proceedings now pending before the learned Sub Divisional Judicial Magistrate, Jhajjar are quashed.

The petitioner be discharged from the bail bonds and the fine, if any realised, be refunded, if not already done so.