Madan Lal vs State of Haryana

M.L. Singhal, J.

This is Crl. Revision No. 562 of 1997 filed by petitioner Madan Lai whereby he has prayed that part of order dated 1.5.1997 passed by Additional Sessions Judge, Jagadhari be set aside whereby he had remanded the case for fresh trial to the Court of the Magistrate. Facts of the prosecution case briefly stated are as follows :

On 29.8.1984, Shri C.J. Sikri, Government Food Inspector accompanied by Dr. T.D. Chandna inspected the premises of Madan Lai accused situated at Jaroda Gate, Jagadhari with a view to taking the sample of food articles meant for human consumption for getting it analysed. At that time, accused Madan Lai was found sitting at the business premises. Three kilograms of barfi with silver foils pasted was lying at the shop for sale to the public. After disclosing to the accused the purpose of his visit to the shop and complying with the other procedural requirements as laid down in the Prevention of Food Adulteration Act, 1954 and the Rules framed thereunder, Food Inspector purchased 750 grams barfi from the accused by way of sample against payment of Rs. 12/ to him with a view to having it analysed from the Public Analyst. Food Inspector divided the sample of barfi so purchased into three equal parts. He put each of the parts of barfi in separate containers. He sealed each of the containers separately. In each of the sealed containers, he put one form duly filled, signed by the accused and attested by the witnesses. One of the sealed samples was sent by him to the Public Analyst, Haryana for analysis. Copy of said form was sent to him separately. Remaining two samples were deposited with the Local Health Authority. Public Analyst analysed the sample and vide report Ex.PD found that silver leaves, the use of which had been banned vide notification No. 8/242 PH/4825 dated 26.7.1984 had been pasted on the upper layer of the barfi. On receipt of the report of the Public Analyst by the Local Health Authority, one copy thereof was sent to the accused together with the forwarding letter by registered post. Food Inspector instituted the complaint under Section 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 in the Court of the Magistrate in October, 1984.

Vide order dated 25.11.1994/1.12.1994, C.J.M., Jagadhri found the charge under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 proved against the accused, convicted him and sentenced him to undergo rigorous imprisonment for a period of six months and pay a fine of Rs. 1000/; in default of payment of fine, to further undergo rigorous imprisonment for three months.

Aggrieved from this order passed by C.J.M., Jagadhri, the accused knocked the door of the Court of Session through Crl. Appeal No. 50 of 1994. Additional Sessions Judge, Jagadhri set aside conviction and sentence on 1.5.1997, passed by the Magistrate upon the accused on the ground that there was irregularity in the trial and he remanded the case to Additional Chief Judicial Magistrate, Jagadhari for fresh trial.

Not satisfied with this part of the order whereby Additional Sessions Judge has remanded the case back to the Magistrate for fresh trial, the accused has come up in revision to this Court.

I have heard the learned counsel for the revision petitioner, learned A.A.G., Haryana and have gone through the record. It has been submitted by the learned counsel for the petitioner that the sample was allegedly seized on 29.8.1984 from the accused. Complaint was filed in October, 1984 and the trial commenced. Accused was chargesheeted under Section 7 of the Prevention of Food Adulteration Act, 1954 vide order dated 23.10.1986. In the beginning, trial commenced as if it was a warrant case instituted on a complaint. Later on vide order dated 21.1.1988 passed by the Magistrate, the trial was switched over from warrant case trial to a summary trial case. The prosecution took nine years to conclude its evidence. In the year 1994, the statement of the accused was recorded under Section 313 Cr.P.C. In the year 1994, his defence evidence was recorded and judgment was pronounced on 25.11.1994. Accused preferred appeal to the Court of Session which was disposed of on 1.5.1997. Petitioner thus remained before the Courts for 13 years. It would be traversity of justice if the accused is called upon to face trial denovo, although he has remained under trial for 13 years earlier. It has been submitted that right to speedy trial is an inalienable fundamental right embodied in Article 21 of the Constitution of India. This right is available for all offences irrespective of the nature of the offence. This right is not confined to serious and capital offences. The right is applicable both in a public investigation and actual trial before the trial Court or appellate Court. In Madheshwardhari Singh and another v. State of Bihar, 1990(3) RCR 302 it was observed by a Full Bench of the Patna High Court that the right to speedy trial delves deeply into the soul and spirit of our Constitution. Right to speedy trial is one of the most basic rights preserved by our Constitution. The right to speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution''s case, as is the defendant''s right, the time to meet them is when the case is fresh. The claims have never been favoured by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from and, at times in opposition to, the interests of the accused. This constitutional guarantee has universally been thought essential to protect at least three basic demand of criminal justice in the Anglo American legal system :

(1) to prevent undue and oppressive incarceration prior to trial,

(2) to minimize anxiety and concern accompanying public accusation, and

(3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.

Learned counsel for the petitioner has submitted that remanding the case back to the Magistrate for trial denovo after a lapse of more than 10 years would negate the constitutional guarantee guaranting the speedy trial as embodied in Article 21 of the Constitution. Learned A.A.G. on the other hand submitted that it may be true that the accused is entitled to a speedy trial but it cannot be true that the Court can overlook the seriousness of the offence while ensuring the guarantee as enshrined in Article 21 of the Constitution of India. It has been submitted by him that the accused who adulterate articles of food stock are enemies of the people. They enrich themselves at the cost of the health of their fellow beings. An adulterator of article of food is an enemy of the people. He deserves severe punishment and condemnation at all hands. He deserves no sympathy. In my opinion, the submission made by the learned AAG, Haryana cannot be taken to be wholly correct. It would be preposterous if the trial of a complaint under the Prevention of Food Adulteration Act has taken 13 long years and remains still pending.

In this case, trial was commenced as if it were a warrant case instituted on complaint. Later on the Magistrate ordered on 21.1.1988 that the case would be tried in accordance with the procedure prescribed for trial of summary cases. Evidence of P.W1 Dr. T.D. Chandna was recorded by one Magistrate. Statements of other two witnesses were recorded by the other two Magistrates. The case was finally decided by C.J.M., Jagadhri. Trial of the case was, thus in violation of the provisions of Section 326(3) of the Code of Criminal Procedure. Section 326 of the Code of Criminal Procedure reads as follows :

"S. 326. 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 the whole or any part of the evidence in an inquiry or a trial, cases to exercise jurisdiction therein and is succeeded by another (Judge or Magistrate) who has and who exercises such jurisdiction, the (Judge or Magistrate) so 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, crossexamination and reexamination 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 subsection (1).

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

It was observed in Amar Nath v. State of Haryana, 1996(2) RCR 655 by the learned single Judge of this Court that trial of a case under the Prevention of Food Adulteration Act, 1954 will be in violation of Section 326 subsection (3) Cr.P.C. where C.J.M. followed summary procedure of trial and recorded statement of P.W. Thereafter, C.J.M. was transferred and his successor recorded the remaining evidence and convicted the accused. It was also held that while setting aside conviction on the ground of faulty procedure, the appellate Court could not remit the case for fresh trial as it would not be conducive to justice to subject the accused to another trial after 10 years. In this case also, I feel that subjecting the accused to trial denovo after a lapse of more than 10 years of the commencement of the trial would be negating the constitutional guarantee of speedy trial as embodied in Article 21 of the Construction of India. So, this Crl. Revision is accepted and the impugned order passed by Additional Sessions Judge is set aside in so far as he has remitted the case for trial denovo.

Revision allowed