Chander Bhan vs State of Haryana

G.S. Chahal, J.

Chander Bhan, by means of this petition under Section 482 Cr P.C. seeks quashing of the order dated November 7, 1986 (Annexure P1) and order dated May 9, 1988 (Annexure P2), passed by the SDJM 1st Class, Kaithal.

The petitioner is being tried for offence under Section 16(1)(i) of Prevention of Food Adulteration Act on the allegations that on March 23, 1983, Government Food Inspector Hukum Singh, in the company of Dr. R.C. Mittal, Medical Officer, inspected the shop of the petitioner. He was found to be in possession of 24 kg. of chilly powder for sale. A sample weighing 600 gms. was purchased. One of the samples was sent to the public analyst, who certified the same to be adulterated. A second sample having been sent to the Director, Central Food Laboratory, Ghaziabad, was also declared to be adulterated by the Director. On November 7, 1986 charges were framed against the petitioner and trial was started as a warrant trial. On May 9, 1988 the CJM found that the trial was to be started as a summary trial and the warrant case had been started without assigning any reason as such he adopted the summary procedure.

The petitioner urges that once a trial having been initiated as a warrant trial, the Magistrate was not competent to change the procedure to that of summary trial and the case could only end in acquittal. Further that the petitioner had a right for speedy trial, but the trial has not been concluded so far.

I do not find merit in the first contention of the learned counsel. The fact that wrong procedure was adopted and charge sheet had been framed, it did not necessarily mean that the case must end in acquittal. The Magistrate was within this powers to rectify the mistake and to proceed with the case as if it was one of summary trial. If any authority is needed reference be made to D. B. judgement reported as Shamlal v. State of Haryana and others, 199(1) PLR 361.

I, however, find force in the contention of the learned counsel that the petitioner was entitled to a speedy trial and he being not the cause for delaying the same, the proceedings should be dropped. The sample was drawn on March 23, 1983 and the complaint was field on May 9, 1983. Thereafter, the case has continuously being adjourned without concluding the evidence. Even Hukum Singh, Government Food Inspector was not examined till January 20, 1986 and on that also his cross examination was adjourned. The charge sheet was framed only on July 4, 1986 and thereafter the case is being adjourned and we are in the year 1992. In Abdul Rehman Atulay etc. v. V.R.S. Nayak and anr. etc., 1992(1) All India Criminal L.R. 1, their lordships of the Supreme Court formulated the following propositions as guidelines, though they were not to be exhaustive :

"1. 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 societal interest also does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this court has understood this right and there is no reason to take a restricted view.

The concerns underlying the right to speedy trial from the point of view of the accused are :

(a) The period of remand and preconviction detention should be as short as possible. In other words the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation inquiry or trial should be minimal and

(c) undue delay may well result in impairment of the ability of the accused to defend himself. Whether on account of death, dis appearance or non availability of witnesses or otherwise."

Their Lordships further observed that while determining whether undue delay has occurred resulting in violation of right to speedy trial, one must have regard to all the attendant circumstances including nature of offence, number of accused and witnesses, the work load of the Court concerned, prevailing local conditions and so on.

In the present case, the delay in the prosecution has not been caused by the petitioner. The number of witnesses to be examined were not large. It is only the prosecution which is at fault in not producing the witnesses and making the progress in the case. It is one of those cases where there has been a delay and the case has not been concluded for a period of more than 8 years.

I hereby accept the petition and quash the complaint and consequent proceedings including orders Annexure P1 and P2.