Mahinder Singh Yadav vs State of Haryana

Jai Singh Sekhon J. (Oral)

Heard. On 11111982, Shri Balwan Singh invested with the powers of the Food Inspector and Dr. J. Chanda took samples of unindicated milk from a container having 10 liters of milk from the shop of Mahinder Singh, located at Jhajjar. The sample of milk was found to be deficient by 30% in milk fat and 1% in milk solids not fat by the Public Analyst vide his report Exhibit PD, which resulted in launching the prosecution against the petitioner on 2711983. The petitioner pleaded guilty to the charge on 11101984, which resulted in his conviction and sentence. On appeal, however, the learned Additional Sessions Judge vide his order dated 5.10.1985 remanded the case back for retrial by holding that the accused had not voluntarily pleaded guilty to the charge. The trial court after holding trial again convicted the petitioner of the charge punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act'') vide its judgment dated 11.12.1987 and awarded six months rigorous imprisonment besides imposing a fine of Rs. 1,000/ and in default of payment thereof, to further suffer three months rigorous imprisonment. Feeling aggrieved against that order, the petitioner again when in appeal which was accepted by the learned Additional Sessions Judge, Rohtak, vide his judgment dated 121989 and the case was remanded for retrial on the ground that since the evidence of DW1 Shri R.C. Chopra was not completed, it has resulted in vitiating the trial. Aggrieved against that order the petitioner has come up before this Court on the revisional side.

The grouse of the petitioner mainly is that he having suffered agony and pangs of the pendency of the trial of this case for a period of more than six years, the appellate court should not have remanded the case for retrial. The other grouse of the petitioner pertains to the illegality of trying this case as a warrant case by the trial court and not in a summary manner as provided under Section 16A of the Act.

The provisions of Section 16A of the Act were inserted in the Act w.e.f. 1st of April, 1976, by the amending Act No. 34 of 1976. This section 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 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."

A bare glance through the above referred provisions of Section 16A of the Act leaves no doubt that the cases under Section 16(1) of this Act shall be tried in a summary manner by the Judicial Magistrate 1st Class unless during the pendency of the trial the Magistrate feels that under the circumstances of the case, a sentence of more than one year is warranted. In that contingency, the Magistrate had to record an order to that effect and thereafter start trying the case as a warrant case. In the case in hand, the trial court has not recorded any such order of trying this case as a warrant case. On the other hand, the perusal of the trial Court file reveals that the case was tried as a warrant case because a regular charge was framed and the plea of the accused petitioner was recorded. Thus in view of the ratio of the judgment of the Full Bench of this Court in Budh Ram and another v. State of Haryana, 1984 (II) Prevention of Food Adulteration Cases 179, the trial stands vitiated on this score alone. No doubt, the accused had not taken any such objection before the first appellate Court, yet all the same the trying of a case under Section 16(1)(a)(i) of the Act as a warrant case being an illegality, it cannot be said that as no prejudice has been caused to the accused for trying the case, as a warrant case, the trial is not vitiated.

The next question then arises whether a protracted trial for a period of more than six years would justify in not remanding the case for retrial as Avas done by the first appellate Court. In this regard, it is noteworthy that the accused. petitioner appears to be petty milk vendor or teastall holder as only ten litres of milk was found on the premises of his shop. Thus it cannot be said to be a case of that type where the accusedpetitioner had indulged in selling of adulterated article at a mass scale. Under Art 21 of the Constitution of India, the person accused of an offence has inherent or fundamental right for expeditious trial as held by the Full Bench of the Patna High Court in Madheshwardhari Singh and another v. State of Bihar, 1990(3) RCR(Crl.) 302 (Patna) : AIR 1986 Patna 324 , after elaborate discussion of Article 21 of the Constitution. However, in that case, no hard and fast guidelines were laid down regarding the actual period of trial which would result in vitiating the proceedings. Moreover, in the case in hand, the accusedpetitioner had not in any way contributed to this delay of more than six years in the disposal of the case.

Mr. Justice S. C. Grewal of this Court in Mahabir Prasad v. State of Haryana, 1989(1) Prevention of Food Adulteration Cases 282, has quashed the proceedings for offence under Section 16(1)(a)(i) read with Section 7(1) of the Act in not trying the case in a summary manner and had not sent the case back for retrial on the ground that the accusedpetitioner had been facing trial in that case since the month of August, 1983. Mr. Justice S. D. Bajaj has taken a similar view in Brij Lal v. State of Haryana, 1989(1) Prevention of Food Adulteration Cases 254.

In view of the above referred circumstances, there is no option but to quash the impugned order of the learned Additional Sessions Judge in remanding the case for retrial by accepting this petition and quashing the entire proceedings due to the above referred illegality in trying this case as warrant case in view of the provisions of Section 16A of the Act. It is ordered accordingly. The fine, paid by the petitioner, shall be refunded.

JUDGMENT accordingly