Naresh Kumar vs State of Haryana and anr.

S. D. Bajaj, J.

Sample of `Balushahi'' collected from the petitioner by the Food Inspector on 25th June, 1984 was found to contain unpermitted coaltar dye therein and, therefore, complaint under section 16 of the Prevention of Food Adulteration Act was filed against the petitioner by the Food Inspector in the court of learned Chief Judicial Magistrate, Hissar. Charge in this case was framed by the learned trial court against the petitioner on 10th October, 1985. On 10th November, 1988 more than three years after the framing of the charge learned trial court made the following order :

"Present : G.F.I. for the State.

Accused on bail.

In view of the judgment dated 28.10.1988 passed by ld. Additional Sessions Judge, Hissar, the trial of the case should be conducted afresh and hence the case be registered in the summary register. Now the case to come up on 15111988 for giving notices of the offence to the accused.

Sd/

C.J.M. Hissar.

10111988

Criminal Misc. No. 5547M of the 1990 has been filed by the accused petitioner for quashing the charge and subsequent proceedings taken by the learned trial court against the petitioner an its basis on the ground that the learned Additional Sessions Judge could order acquittal of the petitioner and not retrial on account of the legal infirmity detected by him in the proceedings taken by the learned trial court on the complaint filed by the Food Inspector against the petitioner.

I have heard Shri Atul Lakhanpal, Advocate for the petitioner, Shri R.N. Lohan, Advocate, for the State and have carefully perused the relevant record.

In Budh Ram and another v. State of Haryana, 1984(II) Prevention of Food Adulteration Cases 179 a Full Bench of this Court observed, "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 Magistrate, 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. 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 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 offenders in accordance with the procedure prescribed by the Code for the given offence."

Interpreting the Full Bench decision this Court again observed in Mahabir Prasad v. State of Haryana, 1989(1) Recent Criminal Reports 182 : 1989(1) Prevention of Food Adulteration Cases 282 and Ram Phal v. State of Haryana, 1989(2) RCR(Crl.) 512 (P&H) : 1989(II) Prevention of Food Adulteration Cases 160 as follows :

"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 aforesaid authority that once the Judicial Magistrates are specially so 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 he entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence.

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, trial, which is held in violation of 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 of the State in this respect hardly seems tenable in the circumstances of the case."

6.For the reasons given above Criminal Misc. No. 5547M of 1990 succeed and is allowed. Charge framed against the "petitioner and subsequent proceedings taken in the complaint filed by the Food Inspector against him are all quashed. Accused petitioner is acquitted.