Mange vs State of Haryana

S.D. Bajaj, J.

Sample of milk obtained by Government Food Inspector from the petitioner, Mange on 22nd June, 1983 was found deficient in milk solids not fat to the extent of 9 per cent below the minimum prescribed standard and therefore, adulterated. On prosecution for it learned Chief Judicial Magistrate, Sonepat, vide judgement dated 23rd April, 1988 convicted accusedpetitioner of the commission of offences under section 7 and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced him to undergo rigorous imprisonment for a period of six months and to pay Rs. 1000/ as fine. In default of payment of fine, accusedpetitioner was ordered to undergo rigorous imprisonment for a further period of three months.

Vide appellate judgment dated 16th April 1990 passed in Criminal Appeal No. 5 of 1998 learned Sessions Judge, Sonepat held that summary procedure having not been followed by the learned trial court, impugned judgment of conviction and sentence passed by the learned trial court was vitiated. Accordingly the case was remitted back to the learned trial court for fresh decision according to law; after following summary procedure within four months from the date of remand. Against the order of remand accused petitioner has filed Criminal Revision No. 341 of 1990 in this Court urging that on account of his having undergone the agony of prosecution for over seven years by now learned appellate court ought to have ordered his acquittal instead of remanding back the case to learned trial court.

This Court has repeatedly held in Budh Ram v. State of Haryana, 1985 Criminal Law Times 372; Brij Pal v. The State of Haryana, 1989(1) Chandigarh Law Reporter 568 and Mahabir Parshad v. The State of Haryana, 1989(1) RCR 182 : 1989 Cri. Law Times 21 , "From the above, 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 P.C. But the judicial Magistrates can hold summary trial only if they are specially so empowered. So, unless they are specially so empowered the question of their holding summary trial would not arise. However, once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other; 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 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."

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 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 appropriate procedure in that regard. Thus, in the instant case, the trial, which was held as a warrant case, was not in accordance with law.

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 of the procedure, would be illegal, and not merely irregular.

In this case sample was taken from the petitioner on 22nd June, 1983. The petitioner has, therefore, been undergoing agony of the trial for more than 7 years already. 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 orders of conviction and sentence passed by the Courts below and giving the benefit ofdoubt, hereby acquit the revision petitioner. Fine, if paid, be refunded to be revision petitioner after the period of appeal.