Ashwani Kumar vs The State of Haryana

Surinder Singh, J.—Ashwani Kumar petitioner was convicted by the Chief Judicial Magistrate, Ambala, u/s 16(1)(a) (i) of the Prevention of Food Adulteration Act, and was sentenced to Rigorous Imprisonment for six months and a fine of Rs. 1,000/-. In default of payment of fine, he was ordered to undergo further Rigorous Imprisonment for two months He appealed. The learned Sessions Judge Ambala, who was seized of the appeal, after hearing the parties set aside the order of the trial Court and remanded the case to that Court for a fresh trial. While doing so, he also afforded both the parties further opportunity to lead evidence on certain points which are noticed in the judgment of the learned Sessions Judge. It is against this order of the Sessions Judge that the present revision Petition has been filed.

The order of the learned Sessions Judge is unsustainable. During the course of the judgment, the learned Sessions Judge observed that the prosecution had failed to assert and prove a basic ingredient as envisaged by the rules framed under the Prevention of Food Adulteration Act, this being that a copy of the report of the Public Analyst had been sent to the accused within ten days of the receipt thereof. It was also observed that by acting on a mere vague admission of the accused in his statement u/s 313, Code of Criminal Procedure, "It was only the defence theory which was relied upon by the trial Court for basing the conviction." The Learned Sessions Judge further remarked that "it was necessary for the prosecution to establish that the sample phials as also sample of the seal used were both forwarded by the Public Analyst to the Chemical Examiner separately." The third point favourable to the petitioner which was considered is that even though the petitioner had moved the trial Court for the examination of Ashok Kumar PW (Who was given up) as a Court Witness, the application in this behalf remained un-decided. In the wake of all these observations, the trial Court held that a "clarification" was called for.

It is a well established canon of criminal jurisprudence that the benefit of any doubt which may arise in the case is to be conferred upon the accused and it is not the function of the Court to enable the prosecution to fill in the lacunae in its evidence by affording it opportunity to do so, unless of course the Court finds it impossible to pronounce an effective judgment, on account of lack of some vital information. The mere fact that the prosecution had failed to produce all the necessary material to establish the culpability of the petitioner, does not justify the remand of a case, even though while doing so, the Court may have afforded opportunity to both the parties to lead evidence afresh. The learned Sessions Judge appears to have ignored these fundamental principles. The petitioner is, therefore, well within his rights to pray that the judgment of the lower appellate Court be quashed and he be acquitted of the charge framed against him.

The Revision Petition succeeds. The Judgment of the learned Sessions Judge dated June 7, 1978, is set aside and the petitioner is acquitted of the charge for which he was prosecuted. He is on bail and his bail bonds stands discharged.