Hari Ram vs State of Haryana

Harbans Lal, J.—This revision is directed against the judgment dated 7.3.1998 passed by the Court of learned Additional Sessions Judge, Faridabad whereby he dismissed the appeal preferred against the judgment/order of sentence dated 19.2.1996 rendered by the Court of learned Sub Divisional Judicial Magistrate, Palwal vide which he convicted and sentenced Hari Ram accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment of the same to further undergo rigorous imprisonment for one and a half months u/s 16(1)(a)(i) of the Prevention of Food and Adulteration Act 54 (for short, `the Act'').

Shortly put, facts of the prosecution case are that the accused was in possession of 70 kg of wheat atta contained in a gunny bag for public sale. On 8.2.1991, the Food Inspector accompanied by Dr. G.M. Mittal took the sample of wheat atta from the possession of the accused. On analysis, the same was found adulterated and unfit for human consumption due to the presence of four living, one dead weevil and three living meal worms. After observing usual formalities, the complaint was lodged in the Court for trial of the accused. The accused was charged u/s 7 of the Act punishable u/s 16(1)(a)(i) ibid to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 Dr. G.L. Shukla, PW2 Dr. J.C. Mittal, PW3 Daya Kishan and closed its evidence.

When examined u/s 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He did not adduce any evidence in defence. After hearing the learned Government Food Inspector, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he went up in appeal, which was dismissed. Being undaunted and dissatisfied with the judgment recorded by both the Courts below, he has preferred this revision.

I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.

Learned counsel for the petitioner eloquently urged that here in this case, initially the summary procedure was adopted in the case and later on without recording reasons in writing and without forming judicial opinion, the learned trial Magistrate switched off the procedure of a warrant case in utter violation of the mandatory provisions of Section 16(A) of the Act. To gloss over this submission, the learned State Counsel pressed into service that the petitioner has not demonstrated that by resorting to the procedure of warrant, he has been prejudiced in any manner. This contention merits rejection.

Section 16(A) ibid 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 sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 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 is 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 that 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.

The order-sheet dated 26.9.1994 reads as under :-

Notice u/s 16(l)(a)(i) of PFA Act served upon the accused. He pleaded not guilty. Keeping in view the fact that sentence of more than one year is likely to be passed in case accused is ultimately held guilty. Thus, the case is ordered to be tried as warrant case. Therefore, the case is adjourned to 9.11.1994 for pre-charge evidence of the complainant.

It is abundantly clear from this order that the petitioner was served with a notice for being tried summarily. Simultaneously, the procedure of warrant case was switched over. The simple reason apportioned for doing so, is that the sentence of more than one year is likely to be passed if the accused is ultimately held guilty. It is to be seen as to whether this order is in tune with the letter and spirit of Section 16(A) ibid. The legislature has made use of the words "the Magistrate shall after hearing the parties, record an order to that effect." The order referred to above nowhere mentions that the same has been passed after hearing the parties. The afore-quoted order does not disclose any reasons whatsoever as to whether he was satisfied from the facts of this case that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it was for any other reason, undesirable to try the case summarily. If he had decided to try the case as a warrant case merely by saying that since the punishment for committing the offence u/s 16(l)(A) of the Act can be more than one year and in that event he did not think it proper to try the case in a summary manner, then palpably he has violated the mandatory provisions of Section 16(A), ibid, which specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under sub-section (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the 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. It is provided u/s 16(A) ibid itself, under what circumstances, the Magistrate could depart from a summary procedure and could resort to the procedure of a warrant case. In re: Ram Kumar v. State of Haryana, 1995 (2) RCR 89, the Magistrate had switched over to the procedure of warrant case without hearing the parties and without recording reasons. It was held that the order is invalid. It is mandatory for the Magistrate to hear the parties and record the order and thereafter, recall the witnesses who might have been examined and proceed to hear and rehear the case in the manner provided in Cr.P.C. Further in re: Ram Phal v. State of Haryana, 1990 (1) RCR 5, also the trial Court had erred in framing charge against the petitioner and trying the case by warrant procedure instead of trying it summarily. The proceedings were quashed. In re: Budh Ram (Deceased) v. State of Haryana, 1985 (1) RCR 510, the Full Bench of this Court ruled as under :-

However, once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other and they shall have to try every offence u/s 16(1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result, of summary trial, then in that case after passing such an order in writing, would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence.

It can be reasonably culled out from these observations that, if on application of mind to the facts of the case, the learned trial Magistrate forms the opinion that the given offence is such that the offender requires to be awarded greater sentence, in that eventuality, the case of such an offender is to be tried as a warrant case. It is obligatory upon Magistrate to express such an opinion in writing. Order dated 26.9.1994 referred to hereinbefore, nowhere says that the given offence is such that the offender requires to be awarded greater sentence. Thus to say the least of it, this order is not in consonance with the provisions of Section 16(A) ibid.

Learned counsel for the petitioner further canvassed at the bar that according to the prosecution, the sample was sent on 9.2.1991 through railway parcel, which was received by the public analyst on 15.2.1991 and the same was analysed on 18.3.1991, i.e., after a long delay of about 38 days and thus formation of worms within this interregnum cannot be ruled out. That there is nothing on the record to suggest even remotely that the Food Inspector has suggested any living or the dead worm at the time of taking sample. Thus, possibility of the sample being free from worm at the time of taking of the same cannot be ruled out. Admittedly, the Government Food Inspector did not add any preservative whatsoever to the sample in question which was analysed after a gap of 38 days. So, the possibility of the sample having got infested with the meal worms cannot be ruled out. The learned State Counsel could not reconcile these submissions in a successful manner. I have considered these submissions, in extenso. In re: Anil Kumar and another v. State of Himachal Pradesh, 1995 (2) Prevention of Food Adulteration Cases 87, the Director, Central Food Laboratory opined that there were three living insects and 11 dead insects larva, alcoholic acidity which was above the prescribed limit. There was nothing on the record to suggest, even remotely, that the Food Inspector had noticed any living or dead insects at the time of taking of the sample. It was held that the likelihood of insects having been cropped up during the transit period and the sample being insect free at the time of its seizure cannot be ruled out.

A meticulous perusal of the evidence tendered by PW Daya Kishan, Government Food Inspector would reveal that he has nowhere stated that he had noticed the presence of living/ dead weevils and living meal worms in the Atta (flour) at the time of seizure. So, the possibility of the weevils or meal worms having been born during the transit period of 38 days cannot be ruled out. There can be every possibility that at the time of seizure, the sample was free of these insects. In case State of Haryana v. Jagdish, 1992 (1) Prevention of Food Adulteration Cases 192, the sample of jeera was taken. It was held by the Division Bench of this Court that during the gap of 14 to 15 days in taking the sample and its analysis, the possibility of the sample having got infested with meal worms cannot be ruled out, especially when the Food Inspector had not stated having put any preservative in the sample of jeera. Rule 19 of the Prevention of Food Adulteration Rules, 1955 lays down that "Any person taking a sample of any food for the purpose of analysis under the Act may add preservative as may be prescribed from time to time to the sample for the purpose of maintaining up in a condition suitable for analysis." Rule 21 ibid contemplates that "Whenever any preservative is added to a sample, nature of quantity of a preservative added shall be clearly noted on the label to be affixed to the container.

The next argument having been raised on behalf of the petitioner is that the mandatory provisions of Section 13(2) read with Rule 9 (b) of the Act have been given a total go-by as the report of the public analyst has not been supplied to the petitioner, thereby depriving him of his valuable right to get the second part of the sample analysed from the Director of Central Food Laboratory, the report of which supersedes that of the public analyst.

The learned State Counsel half heartedly argued that as per the testimony of Dr. G.L. Shukla PW1, on 21.3.1991, the copy of the report of the Public Analyst was supplied to the petitioner to enable him to get the second part of the sample analysed. It is hard to swallow this argument. Section 13(2) ibid runs as under :

13(2) On receipt of the report of the result of the analysis under sub- section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

Rule 9 B of the Prevention of Food Adulteration Rules, 1955 read as under :

9B. Local (Health) authority to send report to person concerned. -- The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed u/s 14A of the Act.

On a combined reading of the afore-quoted Section as well as rule, it transpires that on receipt of the public analyst''s report, the Local Health Authority is obligated to forward a copy of the same to the accused within 10 days after the institution of prosecution against him. Herein this case, it is in the evidence of Dr. G.L. Shukla PW1 that "on 21.3.1991, I received report of the Public Analyst, Karnal. I asked the GFI to launch the case. After launching the case, he informed me and I sent the copy of Public Analyst Karnal with my forwarding letter Ex.PW1/A to the address given by the accused at the time of taking sample. The AD is Ex.PW1/B. Receipt Ex.PW1 /C is here on the record." As per Ex.PW1/A, the copy of Public Analyst''s report was dispatched to the accused on 1.4.1991 whereas according to Dr. G.L. Shukla such report was received by him on 21.3.1991. It clearly indicates that such report was forwarded to the accused on expiry of the mandatory period of 10 days. The legislature has employed the words in the afore-quoted Section as well as Rule "within a period of ten days". It imports that such report should have been sent within ten days. Thus the provisions of the afore- mentioned Section as also the Rule have been given a go by.

In view of the infirmities enumerated above, this petition is accepted setting aside the judgments recorded by both the Courts below. The petitioner is hereby acquitted of the charged offence.