Daulat Ram vs State of Haryana

S.K. Jain, J. (Oral)

On inspection by Government Food Inspector on 5.2.1983 Umed Singh Servantvendor on the shop of M/s. N. Dass and Company of which Daulat Ram was a partner, was found in possession of 10 kg of cow milk for public sale. Sample of 660 ML of the milk was purchased by the Government Food Inspector. The Public Analyst gave his report in the following terms :

"Milk fat is 4.5% and milk solids not fat is 6.9%. Thus milk solids not fat is 19% the deficiency of the minimum prescribed standard."

The Government Food Inspector on the basis of the said material filed a criminal complaint No. 57 on December 8, 1983 in the Court of Chief Judicial Magistrate, Gurgaon, who charged the petitioner on 4.9.1990 alongwith his servant and the firm under Section 7 of the Prevention of Food Adulteration Act, 1954 punishable under Section 16(1)(a)(i) of the Act.

Vide application Annexure P2 dated 14.11.1990, the petitioner sought his acquittal on the ground that the case could not be tried as a warrant case without giving notice and recording the evidence of the prosecution and hearing the parties, whereas in the instant case, neither such notice was given to the petitioner nor any evidence was recorded before framing of the charge. This application was dismissed by the Subordinate Court vide its order dated 24.1.1992 (Annexure P3). Thereafter, the case has been adjourned from one date to other for prosecution evidence but not even single witness has been examined on behalf of the prosecution. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint.

On being served, written statement has been filed on behalf of the State.

Learned Counsel for the petitioner has firstly argued that the case had to be tried as a summary trial and in case it was intendant to be tried as a warrant case, the accused has to be notified and then the preliminary evidence had to be recorded as required under Section 16A of the Act ibid. The complaint was filed on December 8, 1983 and since then not even a single witness has been examined during this period by the prosecution. It was only on July 7, 1990, when the case was directed to be tried as a warrant case and the charge was framed on September 19, 1990 and since then the trial has not proceed further. In support of his argument, the learned Counsel for the petitioner has cited at the bar (i) Madan v. The State of Haryana, 1992(1) Recent Criminal Reports 41 ; (ii)Sham Sunder v. State of Haryana and another, 1992(1) Recent Criminal Reports 491, judgment dated 31.7.1992 delivered in Criminal Miscellaneous No. 1760M of 1992, Tarlok v. State of Haryana.

On the other hand, Mr. Sullar, learned Assistant Advocate General, Haryana has argued that if at the commencement of the trial or in the course of it, it appears to the Court that the nature of the case was such that a sentence of imprisonment for a term of exceeding one year might have to be passed or that it was, for any reason undesirable to try the case summarily, the Magistrate would after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in any manner provided by the said Court. He further submitted that the proviso of Section 16A of the Act makes it clear that it is open to the Magistrate in the course of trial to switch over from summary procedure to a warrant procedure in terms the said provision. In support of his argument, he relied on Sham Lal v. State of Haryana and others, 1991(1) Punjab Law Reporter 361.

On the point of delay, he has argued that the proceedings cannot be quashed on this ground alone. In support of his argument he has placed great reliance on Roshan Lal v. State of Haryana, 1992(1) Recent Criminal Reports 430 .

I have given my thoughtful consideration to the rival contention. The following facts are admitted on both ends and rather borne out from the record :

(i) Sample was taken on May 22, 1983;

(ii) Complaint was instituted on 8th of December, 1983.

(iii) On 7th of July, 1990 procedure of warrant case was directed to be followed;

(iv) Charge was framed on 4th of September, 1990;

(v) Petitioner moved an application on 14th November, 1990 for dismissing the complaint on the ground that before switching over to the warrant procedure, notice had not been served on him and that preliminary evidence had not been recorded.

(vi) The above said petition was dismissed vide order dated 24th of January, 1992.

Thereafter, no further step in the prosecution of the trial was taken.

Now on to the argument of the learned Counsel for the petitioner, Section 16A of the Act reads as under :

"16A. Power of Court to try cases summarily. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Section 16 first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial :

Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year :

Provided further that when at the commencement of, or in the course of, a summary trial under this Section, it appears to the Magistrate that the nature of the case in such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to the effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."

From the analytical examination of the above said provisions in general and second proviso thereof in particular it is evident that before switching over to the warrant procedure, the trial Magistrate had to hear the parties and examine the preliminary evidence but in this case perusal of order dated 24.1.1992 would show that in para No. 5 thereof, the trial Magistrate has after discussing the judgment in Sham Lal v. State of Haryana and others, 1991(1) Punjab Law Reporter 361 proceeded to record as under :

"Herein the present case also the then learned ACJM started the trial of the case as a warrant case. Lateron when the defect came to the knowledge of the court, the Court recorded its opinion after giving full opportunity to Daulat accused and after recording his statement that he did not want to get the case tried in a summary manner, ordered that the case cannot be tried summarily and the same be tried as a warrant case."

The above said portion of the order of the learned Magistrate shows that no precharge evidence was recorded and it was only after recording the statement of the accused that he did not want his case to be tried summarily, the learned Magistrate ordered that the case be tried as a warrant case.

Identical situation arose in Madan v. The State of Haryana, 1992(1) Recent Criminal Reports 41 , where the Magistrate without forming his opinion for holding the warrant trial, directed the trial as a warrant case and had adopted the procedure of a warrant trial as the petitioner wanted that he should not be tried in a summary manner. Under those circumstance, it was held by this Court that was an incorrect procedure adopted by the Magistrate and that the law required him to form his own judicial opinion for following the procedure. On this ground, the complaint was quashed in the said case. Ratio of Sham Lal''s case (supra) cannot be grafted on the facts of this case.

In view of the above discussion, I find force in the first argument of the learned Counsel for the petitioner.

Now on to the second argument regarding delay. As mentioned in the earlier part of this judgment the complaint was instituted on December 8, 1983 and the Magistrate followed a wrong procedure. It was only on 7th of July, 1990 that he ordered that the case should be tried as a warrant case but even thereafter not even a single witness of the prosecution was examined till date. There is a delay of about nine years. A Full Bench of Patna High Court in Madheshwardhari Singh and another v. State of Bihar, 1990(3) Recent Criminal Reports 302 : 1986 Criminal Law Journal 771 , held that the right to a speedy public trial is now an inalienable Fundamental Right of the citizen under Article 21 of the Constitution of India and that a delay of seven years in an investigation and trial in a criminal case is the outer limit for concluding the proceedings in cases which are not punishable with imprisonment for life or death. This was followed by a single bench of this court in Madan v. The State of Haryana (supra). Again, in Balwant Singh v. State of Haryana, 1990 PAP 101 and Dharam Pal v. State of Haryana, 1990 PAP 140, procedure were quashed due to inordinate delay in completion of trial. The same principle applies to the case in hand.

Moreover, the milk regarding which the sample was only 10 kg. which will indicate that the petitioner herein was only a petty shopkeeper.

For the foregoing reasons, this criminal petition is accepted and the complaint as well as the proceedings pending before the trial Court are quashed.