Ashwani Kumar vs State of Haryana

J. S. Sekhon, J.

Through this petition filed under Section 482 of the Code of Criminal Procedure, Ashwani Kumar accusedpetitioner seeks quashment of the complaint filed against him for offence punishable under Section 16(1)(c) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') and the charge framed against him for the above referred offences on the ground that the trial Court had no jurisdiction to try the case as summary case at the fag end of the trial especially when the case was being tried as warrant case in violation of the mandate of Section 16 of the Act.

In brief, the facts relevant for the disposal of this petition, are that on August 2, 1986 at about (sic) Ashwani Kumar accused was found carrying 80 kilograms of unindicated milk in two drums for public sale in the area of Thanesar. The Food Inspector purchased 750 milliliters of unindicated milk and after dividing it in three equal parts preserved it by adding the requisite quantity of formalin. The bottles were sealed and stoppered. One of the sealed samples was sent to the Public Analyst Haryana at Chandigarh, who found it to be deficient in milk solids not fat by 8 per cent of the minimum prescribed standard. On receipt of the said report, the above referred complaint was lodged against the accused petitioner.

The trial Court, after recording the evidence, summoned the petitioner and framed a charge for the above referred offences by treating it to be a warrant case.

During the pendency of the trial, the petitioner opted to get one of the samples tested from the Director, Central Food Laboratory, who vide his report (Annexure P3) opined that the sample is not free from the presence of foreign fat and does not confirm the standards laid down for mixed milk under the Provisions of the Act and Rules framed thereunder. On receipt of this report, the trial Court vide order dated April 1, 1987 (Annexure P5) ordered that the said report shall be deemed to be regarding analysis of unindicated milk in place of mixed due to the inadvertent mistake of the concerned Ahlmad of the Court the sample was described as that of mixed milk while referring the same to the Director, Central Food Laboratory.

Thereafter before recording the evidence, vide order dated February 10, 1988 (Annexure P4) the trial Court ordered the case to be tried as a summary case in view of the provisions of Section 16A of the Act.

Through Criminal Miscellaneous No. 12468 of 1993, the petitioner was allowed to make up fresh ground qua the report of the Central Food Laboratory having superseded the report of Public Analyst, Haryana.

This petition was ordered to be listed after the decision of Criminal Miscellaneous No. 237M of 1989. The latter petition has since been decided. This petition has been listed for disposal at motion stage.

I have heard the learned counsel for the parties besides perusing the record.

On my reference, the Division Bench of this Court in Criminal Miscellaneous No. 237M of 1989 decided on August 22, 1990, had settled the controversy whether the trial Court can order the trial of the case in a summary manner although it was earlier being tried as a warrant case or vice versa by holding that the trial Court was at liberty to do so especially when the provisions of Section 216 of the Code of Criminal Procedure clearly provide that the charge can be amended or reframed at any stage before the final order of conviction or acquittal. The Division Bench also held that in Pawan Kumar v. State of Haryana and others, 1989(II) F.A.C. 36. the Single Bench of this Court had not laid down the correct law that such a change of procedure in trying the case would vitiate the trial. Thus, there is, no force in the contention of the learned counsel for the petitioner that the change of the trial in a summary manner from the trial as a warrant case has resulted in prejudice to the accused petitioner or in vitiating the trial.

There is no force in the next contention of the learned counsel for the petitioner that protracted trial by itself depends upon the facts and circumstances of each case to hold so and no uniform standard can be laid down regarding the particular period of the pendency of the trial which would itself be sufficient to quash such proceedings. In the case in hand, the petitioner had nowhere stated that due to the fault of the complainant, the trial got unnecessarily protracted. On the other hand, the sample of milk was taken on August 2, 1986 whereas the order for trying the case in a summary manner was passed on February 10, 1988, i.e. within about one and a half years. It is noteworthy that the accused had opted to get the sample of milk tested from the Director, Central Food Laboratory and the Ahlmad of the Court, by mistake, mentioned it to be sample of mixed milk instead of unindicated milk which resulted in the trial Court passing the order on April 1, 1987, that the report shall be treated to be that of unindicated milk. Thereafter the case was adjourned for recording the evidence. Under these circumstances, it cannot be said that there was delay in disposing of the case to the extent of denying the right of speedy trial to the accused especially when the case relates to adulteration of milk, the basic food of the children. The decision of the learned Single Bench in Criminal Miscellaneous No. 1635M of 1993 (Sohan Lal v. State of Haryana,) decided on July 30, 1993, quashing the proceedings on compassionate grounds including the eye sight of the accused in that case as well as that the said case related to the presence of 1.5 per cent insoluble material in iodised salt and on the ground that the sample was taken in July 1982, has no relevance to the facts and circumstances of the present case, referred above.

There is no dispute that the report of the Director, Central Food Laboratory qua the analysis of the sample shall supersede the report of the Public Analyst, yet the trial Court is the best judge to consider the same and come to the conclusion whether the sample of food was found adulterated or not as per the report of the Director, Central Food Laboratory.

Before parting with the judgment, a note of caution is required to be sounded that the provisions of Section 482 of the Code of Criminal Procedure are to be used sparingly in quashing the proceedings pending before the trial Court because the latter is the best judge of appraising the evidence and noticing the demeanour of the witnesses. Consequently, no case for interference is made out for quashing the proceedings before the trial Court. The petition stands rejected. The petitioner through his counsel is directed to appear before the trial Court on Feb. 10, 1994. The trial Court shall dispose of the matter expeditiously.