Chander Bhan vs State of Haryana

P.K. Jain, J.—This revision is directed against the judgment dated 17-7-1995 passed by the Additional Sessions Judge, Hissar whereby the sentence and conviction of the petitioner for an offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) recorded by Shri S. C. Goel, Sub Divisional Judicial Magistrate, Fatehabad vide his judgment and order dated 19-10-1992 has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of payment thereof to further undergo rigorous imprisonment for three months.

The facts in brief are that on 17-6-1985, Government Food Inspector Shiv Dayal accompanied by Dr. S. P. Mimani intercepted the petitioner at Rattia Octroi Post, Fatehabad while carrying two drums of cow milk each containing 18 litres meant for public sale. A public witness was joined in the party. After expressing his desire to take sample of cow milk from the petitioner, a notice was served. After the milk was made homogeneous, the Food Inspector purchased 660 mililitres of milk for analysis which was divided into three parts and after adding preservative as per rules the same was sealed in three dry and clean bottles in equal quantity. One of the samples was sent to the Public Analyst and the same was found to be adulterated as it contained milk fat and milk solids not fat deficient of the minimum prescribed standard. After complying with the necessary formalities the said Food Inspector filed a complaint for an offence u/s 16(1)(a)(i) read with Section 7 of the Act against the petitioner. By order dated 19-5-1991, the petitioner was convicted and sentenced. He challenged his conviction and sentence and the Additional Sessions Judge, Hisar vide order dated 9-5-1992 accepted appeal and set aside sentence and appeal and remanded the case to the trial Court to be tried in accordance with the provisions of the Act. Thereafter the case was ordered to be tried as warrant case. After recording the evidence and believing the prosecution evidence the Sub Divisional Judicial Magistrate again convicted and sentenced the petitioner as stated above. The appeal of the petitioner against his conviction and sentence did not find favour with the Appellate Court and the same was dismissed by the impugned judgment.

I have heard the learned counsel for the petitioner and learned State counsel and have gone through the record of the trial Court which has been summoned at the motion stage with the consent of the counsel for the parties. It may be stated that since the finding of facts recorded by the two Courts below is concurrent and no illegality or irregularity could be pointed out, notice qua sentence only, was issued to the State.

Shri R. K. Jain, Advocate learned counsel for the petitioner has argued that the petitioner is not a previous convict and he is only bread earner of the family and he ought to have been released on probation of good conduct. In support of this contention reliance has been placed by the learned counsel upon the judgment of the Apex Court reported as Ishar Das Vs. The State of Punjab, . This was also a case under the provisions of Food Adulteration Act and their Lordships were pleased to order release of the appellant in that case, on probation. But this contention raised by the learned counsel appears to be misconceived. The Prevention of Food Adulteration Act, 1954 was amended by Act No. 34 of 1976 and Section 20AA was inserted.

This section provides as under:-

"Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to a person convicted of an offence under this Act, unless that person is under eighteen years of age." From a bare perusal of this section it is evident that the question of the applicability of the Probation of Offenders Act, 1958 or provisions of Section 360 of the Code of Criminal Procedure is relevant only in the case of a convict who is below the age of 18 years. Admittedly, in the present case, the petitioner is about 50 years of age and as such the question of releasing him on probation does not arise. Therefore, this contention being without any merit is hereby rejected.

Then the learned counsel for the petitioner has argued that the prosecution against the petitioner was launched in the year 1985 and the ultimate conviction was recorded in the year 1992 which was confirmed by the Appellate Authority in the year 1995. It is thus contended that the petitioner has already faced agony of trial for more than 10 years and has also already undergone sufficient sentence and as such the sentence imposed upon the petitioner may be reduced to the imprisonment already undergone. In support of this contention the learned counsel has placed reliance upon a judgment of this Court in Ishwar Singh v. State of Haryana (1994) 1 Rec. Cri. 160 (161) which in turn is based upon a judgment of the apex Court rendered in Braham Dass Vs. State of Himachal Pradesh, ). On the other hand the learned State counsel has vehemently argued that the Act prescribes a minimum sentence to be imposed upon convict and the Court has got no power to impose sentence below the minimum prescribed sentence. It has further been contended that the petitioner has not undergone even the minimum prescribed sentence and as such his sentence cannot be reduced to the sentence already undergone.

The respective arguments have been considered carefully. It is not disputed by the learned State counsel that the prosecution in this case was launched in the year 1985 and the petitioner was first convicted in the year 1991. Conviction and sentence were set aside in appeal by judgment dated 5-6-1992 and the case was remanded for retrial. After the remand the trial Court adopted the procedure of a warrant case for the trial of the petitioner and after recording the evidence, again convicted and sentenced the petitioner as stated above. In other words, it cannot be disputed that the petitioner is facing agony of the prosecution for the last about 10 years.

Now it cannot be disputed that the right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Fundamental rights were not a teasing illusions to be mocked at. These were meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any-the-less the right of the accused. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. This is how the Court shall understand this right and have gone to the extent of quashing the prosecution after such inordinate delay in concluding the trial of an accused keeping in view the facts and circumstances of the case. Keeping a person in suspended animation for 10 years or more without any case at all cannot be within the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution by this Court in the exercise of its extraordinary jurisdiction.

An identical question had arisen before the apex Court in Braham Dass Vs. State of Himachal Pradesh, ), wherein their Lordships were pleased to observe as under:- (at p. 1818 of Tax LR)

"Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and High Court while reversing the judgment of acquittal made by the appellate judge has not made clear reference to Clause (f). The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment. We do not find any useful purpose would be served in sending the appellant to jail at this point of time for undergoing the remaining period of the sentence, though ordinarily in an antisocial offence punishable under the Prevention of Food Adulteration Act the Court should take strict view of such matter."

This view was followed by this Court in Nand Lal v. State of Haryana (1992) 1 Rec. Cri R. 82 and Ishwar Singh v. State of Haryana 1994(1) RCR 160. The present case is fully covered by the view expressed by the apex Court and by this Court in the judgments cited above and I have no reason to differ therewith.

For the reasons mentioned above, the conviction of the petitioner for an offence u/s 16(1)(a)(i) read with Section 7 of the Act is hereby maintained. However, keeping in view the facts and circumstances of the case and the fact that the petitioner has already faced the agony of the protracted prosecution and suffered mental harassment for a long period often years his sentence is reduced to the period of sentence already undergone. Sentence of fine, is, however, maintained along with its default clause.