Lila Krishan vs State of Haryana

Ujagar Singh, J.—On 23rd of September, 1985, at 10 P. M. at Parkhas Adda, Sonepat, Shri A. R. Nehra, Government Food Inspector, had taken sample of Atta from the Petitioner contained in a gunny bag for public sale at his shop and when the sample was analysed by the Public Analyst, it was reported to contain nine living weevils, five living meal worms and one living spider and, therefore, on that ground it was found to be not fit for human consumption. The complaint against the Petitioner was filed before Shri B. K. Aggarwal, Additional Chief Judicial Magistrate, Sonepat. In exercise of the right to get the other sample analysed u/s 13(2) of the Prevention of Food Adulteration Act, from the Central Food Laboratory Gaziabad, an application was filed and the sample was sent to that Laboratory. Report received from that Laboratory indicated that alcohol acidity was above the maximum prescribed limit and, therefore, the sample did not conform to the standard of Atta laid down in item A. 18 01 of the Prevention of Food Adulteration Rules, 1955. It was also reported that the sample showed live and dead insects. The case was posted for pre-charge evidence and when it was concluded, case was put for examination of the accused and he was thus examined u/s 313 of the Code of Criminal Procedure and thereafter it was adjourned for defence evidence and arguments.

It so happened that at that stage, Shri B R. Aggarwal, Additional Chief Judicial Magistrate, was transferred and Shri D. R. Yadav came as his successor and finding that neither charge had been framed nor any notice had been given to the Petitioner, he directed on 19th of May, 1987, to give a notice to the Petitioner and actually notice was given and the Petitioner pleaded guilty to the charge. At that stage. Government Food Inspector gave a statement that he did not want to lead any fresh evidence and the evidence already recorded be read for the prosecution Counsel for the Petitioner also made a statement that the statement of the accused already recorded u/s 313 of the Code of Criminal Procedure be adopted and that the Petitioner had no objection if the evidence already led by the prosecution was read against him. The same day Shri D. R. Yadav convicted the accused-Petitioner u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months.

The Petitioner filed an appeal and relying upon the provisions of Section 326 of the Code of Criminal Procedure, it was argued that in a summary trial, evidence recorded by the predecessor could not be taken into consideration by the successor Magistrate. Section 326 is reproduced as under:

Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.-(1) Whenever any (Judge or Magistrate), after having heard and recorded whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or Magistrate) who has and who exercises such jurisdiction, the (Judge or Magistrate) as succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:

Provided that if the succeeding (Judge or Magistrate) is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may resummon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code (from one Judge to another Judge or from one Magistrate to another Magistrate), the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of Sub-section (1)

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed u/s 322 or in which proceedings have been submitted to a superior Magistrate u/s 325.

This section clearly lays down that ordinarily evidence recorded by a Magistrate during trial can be used by a Magistrate who succeeds the Magistrate who recorded the evidence but Sub-section (3) thereof is an exception which lays down that so far as summary trials are concerned, evidence recorded by a predecessor cannot be used by the successor. Relying upon this principle as also on a judgment in Ramadas Kelu Naik Vs. V.M. Muddayya and Another, the Additional Sessions Judge held that the conviction and sentence of the Petitioner were illegal and, therefore, set aside the same and vide his order dated February 4, 1988, remanded the case to the trial Court for trial by the Additional Chief Judicial Magistrate according to the procedure of summary trial.

It has been argued that the retrial in this case should not have been directed on the ground that the Petitioner has been sufficiently harassed since September 23, 1985. The counsel for the Respondent has on the other hand vehemently argued that the harassment was not because of any mistake on the part of the Court but it was the statements of both the parties that the trial Court did not adopt the procedure for summary trial. Moreover, it is not a case of adulteration in an article which does not become unfit for human consumption even after the adulteration. Rather it is a case where in a sample of 200 grams i.e. 1/3rd of 600 grams taken as sample, nine living weevils, 5 living meal worms and one living spider were found to be present in the Atta and it was on this ground that the sample was found to be not fit for human consumption.

In view of the discussion above, I do not agree with the counsel for the Petitioner for quashing the proceedings pending in the trial Court. Therefore, this petition is dismissed and the Petitioner is directed to appear in the trial court on January 2, 1989.