Mahabir Parshad vs State of Haryana

S.S. Grewal, J.

This revision petition is directed against the order ofAdditional Sessions Judge, Karnal, dated 22nd April. 1985, whereby the order of conviction and sentence passed against the present revision petitioner under section 16(1)(a)(i) of the Prevention of Food Adulteration Act was maintained.

Briefly stated the facts of the case are that Shri Kali Ram, Government Food Inspector, companied by Dr. Om Pal, and, Charan Singh Peon in the Public Health Laboratory, Karnal, inspected the business premises run by the petitioner, under the name and style of Goel Provision Store. The petitioner was found in possession of 4 kgs. of chillies, which were meant for public sale. After disclosing his identity, the Food Inspector purchased 600 grams of powdered chillies on payment of Rs. 6/. The sample of chillies so purchased, Was divided into three equal parts, an( transferred into three dry and clean bottles, which were stoppered, corked labelled and sealed. One of the sample bottles, along with memo. inform VII, was sent to the Public Analyst, Haryana Chandigarh, for analysis in a sealed cover, whereas the other two sample bottles were deposited with the Local Health Authority. After receipt of the report of the Public Analyst, it was found that the sample was adulterated, inasmuch as, it gave ash insoluble in dilute Hydrochloric at 1.84% against the maximum prescribed standard of 1.3% and, the grit 1.42%. Copy of the report of the Public Analyst was also sent by the Government Food Inspector to the revision petitioner on 4.6. 1981, through registered post. Thereafter prosecution was launched against him.

On being summoned, the revision petitioner put in appearance in the Court, as an accused. After recording precharge evidence, charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, was framed against him, to which he pleaded not guilty. Thereafter, the petitioner was tried according to warrant procedure, instead of being tried summarily, as required by Amending Act 34, which came into force in the State of Haryana from Ist April, 1976 onwards. Notification giving summary powers to the Judicial Magistrates for the purpose of Section 16A of the Act to try all the offences under subsection (1) of Section 16 of the said Act, according the summary procedure, was issued on 20th October, 1977.

The petitioner, when examined under Section 313 of the Code of Criminal Procedure, denied the prosecution allegations appearing in evidence against him, and pleaded false implication. According to him, Dr. Om Pal, and other employees of the Civil Hospital used to take goods summarily on credit. The payments were not made by them on demand, and, ultimately, he refused to supply them the goods, hereupon, Dr. Om Pal threatened him with dire consequences. One day Dr. Om Pal brought the Food Inspector to his shop. I he Food Inspector took chillies from his shop without his permission, and without making any payment. He made verbal complaints to the authorities. In defence, he examined Charan Singh as D. W. 1.

I have heard the learned counsel for the parties and perused the evidence on record with their help.

Learned counsel for the revision petitioner submitted that the learned trial Magistrate had erred in law in trying the present revision petitioner by warrant procedure, instead of trying him summarily, warranted by law and procedure. Reliance in this respect has rightly been placed by the learned counsel for the revision petitioner on a Full Bench authority of this court in Budh Ram v. State of Haryana, 1985(2) CLR 29 : 1985(1) Recent Criminal Report, 510 , wherein dealing with this aspect it was held as under:

"It is quite clear that the Legislature intended that all offences under section 16(1) of the Act be tried summarily by specially authorised Magistrates, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code."

It was further held in the aforecited authority :

"Once the judicial Magistrates are specially go empowered, then they cannot discriminate between one case and the other and they shall have to try every offence under section 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 an offenders in accordance with the procedure prescribed by the Code for the given offence."

The aforesaid authority in Budh Ram''s case was followed by a Single Bench in Nand Lal v. State of Haryana, 1987 Criminal Law Times 119. It was held that the trial held as a warrant case was not in accordance with law.

Admittedly, in the present case the trial Magistrate neither applied his mind that greater sentence was to be awarded to the offender than could be awarded as a result of the summary procedure, nor any such order was passed in writing. It was, thus, obligatory on the part of the trial Magistrate to try the accused summarily, and follow approapriate procedure in that regard. Thus, in the instant case, the trial, which was held as a warrant case, was not in accordance with law.

Faced with this situation, it was contended on behalf of the State that no such objection was taken before the trial Court, or before the appellate Court, and such an objection cannot be permitted to be raised for the first time in revision petition.

Failure on the part of the trial Court to follow procedure meant for. summary trial in the instant case, goes to the root of the case. Thus, the trial, which is held in violation or the procedure would be illegal, and not merely irregular, as contended on behalf of the State. This aspect of the case constitutes substantial point of law, which can certainly be permitted to be raised for the first time in revision petition. The objection raised on behalf or the State in this respect hardly seems tenable in the circumstances of the case.

In the instant case trial of the petitioner commenced in August 1983. The revision petitioner has already undergone agony of trial for more than five years. In these circumstances, I do not find it necessary to remand the case for retrial.

For the foregoing reasons, I accept this revision petition, set aside the order of conviction and sentence passed by the Courts below and, giving the benefit of doubt, hereby acquit the revision petitioner. Fine if paid be refunded to the revision petitioner after the period of appeal.