Parmanand vs State of Haryana

B.S. Nehra, J.

This is a petition under Section 482 of the Code of Criminal Procedure for quashing the order dated 4.9.1991, copy Annexure P1, passed by the Chief Judicial Magistrate, Gurgaon, dismissing the petitioner''s application for acquittal on the ground that he had been facing prolonged prosecution and also for quashing the notice dated 4.9.1991 copy Annexure P2, served upon the petitioner under Section 7/16(1)(a)(i) as `the Act'') and the entire proceedings against him.

The petitioner is a Karyana dealer. On 25.11.1986, Mr. Ram Singh, Government Food Inspector, accompanied by Dr. O.P. Sarwal and PW Diwan Chand inspected the petitioner''s shop in Gurgaon and found him in possession of about 15 packets of Mirch Kutti of 100 grams each for sale. After serving notice Exhibit PA, the Food Inspector purchased six packets of Mirch of 100 grams each against payment, for analysis. The packets were labelled, stoppered, wrapped and sealed in accordance with the rules on the spot. One sealed packet was sent to the Public Analyst for analysis and the other samples were handed over to the Local Health Authority, Gurgaon. The Public Analyst, after analysing the sample, vide his report Exhibit PD opined that the same contained six living weevils, three dead weevils and four living meal worms. Thereafter, the complaint under Section 16(1)(a)(i) of the Act was filed against the petitioner for possessing adulterated Mirch.

It is alleged that the petitioner that on 21.9.1988, the Chief Judicial Magistrate, Gurgaon, without giving any notice to him and without affording any opportunity or recording any evidence, ordered the case to be tried as a warrant case instead of a summary case. On 16.11.1988, charges were framed against the petitioner by the trial Court. He (petitioner) being aggrieved by the order dated 21.9.1988 whereby warrant trial procedure was followed by the trial Court, moved an application under Section 16A of the Act for quashing the proceedings. The learned Chief Judicial Magistrate rejected the application vide order dated 4.9.1991, copy Annexure P.1. The petitioner has alleged that the trial Court has been acting illegally inasmuch as it has followed the procedure of a warrant case in trying him instead of following summary procedure as envisaged under the Act. Since, according to the petitioner, the trial Court has subsequently changed the procedure of trial from warrant case to summary case vide order dated 4.9.1991, copy Annexure P.2, he (the trial Judge) has gravely erred in ordering fresh trial after a gap of nearly five years. He has added that the perusal of the report of the Public Analyst shows that no offence is made out against the petitioner inasmuch as the Public Analyst has not opined that the sample is insect infested or worm infested. On these grounds, inter alia, the petitioner has sought the quashing of the order, copy Annexure P1, and notice, copy Annexure P.2, and the proceedings launched against him as a result thereof.

In the reply filed by the respondent, it has been stated that initially, the learned trial Judge was of the opinion that sentence of more than one year has to be passed. As such he had proceeded to try the case as a warrant case. It has been added that the learned trial Court rightly rejected the petitioner''s application for quashing the proceedings in view of the latest Division Bench judgment of this Court in Shyam Lal v. State of Haryana and others, 1999(1) Punjab Law Reporter 361. According to the respondent, the trial Court has not committed any error in doing so and that no procedural delay has been caused in conducting the trial. It has further been added that the presence of the dead worms in the sample is tantamount to it being insect infested.

Three contentions have been raised by the learned Counsel for the petitioner during the course of his submissions. His first contention is that the proceedings before the trial Court are liable to be quashed on the ground that the learned trial Judge has changed the procedure of the trial against the petitioner from warrant case to summary case. The second contention of the learned Counsel is that the case against the petitioner has been pending since 1986 and since the petitioner has been subjected to protracted prosecution, the proceedings are liable to be quashed. It was lastly submitted by the learned Counsel that the report of the Public Analyst in this case does not say that the sample of Mirch taken from the business establishment of the petitioner was worm or insect infested and, therefore, the prosecution against the petitioner is illegal.

Undoubtedly, the trial court had initially proceeded to try the petitioner by adopting the procedure of warrant case. The contention of the learned Counsel for the petitioner is that it was obligatory on the part of the trial Court to try the petitioner in a summary way as envisaged by Section 16A of the Act. This provision, in so far as it is relevant, reads as under :

"10A. 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) 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 26to 26B (both inclusive) of the said Code shall, as far as may be, apply to such trial."

The learned Counsel for the petitioner relied upon a judgment of the Punjab and Haryana High Court in Jaswant Singh v. U.T. Chandigarh, 1991(1) Prevention of Food Adulteration Cases 98, wherein a learned Single Judge of this Court held that the trial under the Act as a warrant case is not in accordance with law and further that failure on the part of the trial Court to follow the procedure meant for summary trial goes to the root of the case. There can be no dispute with the proposition of law enunciated in this judgment, for the provision of Section 16A of the Act itself unambiguously requires that the trial against the petitioner was to be held in a summary way. In the instant case, the learned trial Judge vide order dated (sic), copy Annexure P1, passed orders for holding de novo trial against the petitioners in view of the provisions of Section 16A of the Act. Accordingly, the petitioner was served with the notice under Section 16(1)(a)(i) of the Act, to which he pleaded not guilty and claimed trial. The contention of the learned Counsel for the petitioner is that the trial Court was not justified in changing the procedure from warrant to summary trial and, therefore, the proceedings against the petitioner are liable to be quashed. This contention is untenable. It has been held in Shyam Lal''s case (supra) that offences under the Act, though punishable with higher punishment, have been expressly made triable according to summary procedure by enacting Section 6A in the Act, which mandates that all offences under the Act shall be tried in a summary way. The second proviso of this Section further lays down that if at the commencement of the trial or in the course of it, it appears to the Court 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 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. The proviso makes it abundantly clear that it is open to the Magistrate in the course of the trial to switch love from summary procedure to a warrant procedure and in terms of the said provision. It is well settled that no one has a vested right in any one procedure and it cannot be laid down that on the passing of an order being vitiated. The ratio of this judgment is directly applicable to the instant case before this court, the only difference being that in Shyam Lal''s case (supra), the procedure trying the accused had been changed by the trial Court from summary to warrant case while in the case before this Court, the procedure has been changed by the trial Court from warrant to the summary case. Since the trial Court has now proceeded to try this case as a summary case, in view of the requirement of Section 16A of the Act, the contention of the learned Counsel for the petitioner that the trial Court should have quashed the proceedings against the petitioner is without any merit.

Regarding the second contention of the learned Counsel for the petitioner, it may be observed that though the business premises of the petitioner were raided by the Food Inspector on 25.11.1986, the charges against the petitioner were framed on 16.11.1988. The learned Counsel for the petitioner contended that the petitioner has been subjected to protracted prosecution and, therefore, the proceedings against him are liable not be quashed.

The learned Assistant Advocate General, appearing for the respondent on the other hand contended that a delayed trial is not necessarily an unfair trial and there are no circumstances entitling the court to raise a presumption that the accused had been prejudiced in appeal against conviction. There will be no justification for the appellate Court to quash the conviction on the ground of delayed trial only. He placed reliance on the judgment of the Apex Court in State of Maharashtra v. Champalal Punjaji Shah, AIR 1981 Supreme Court 1675, in support of his contention. In Champaal''s case (supra), their Lordships held that a fair trial implies a speedy trial. But in deciding the question whether there has been a denial of the right to a speedy trial, the Court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The right to a speedy trial is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Aritlce 21 of the Constitution. Repelling the contention of the learned Assistant Advocate General, the learned Counsel for the petitioner argued that, in the instant case, there is no material whatsoever to show that the petitioner was responsible for delaying the trial against him. This contention appears to be well founded inasmuch as the learned Assistant Advocate General has not referred to any material on the record to even remotely suggested that the petitioner was responsible for the delay in his prosecution. The learned Counsel for the petitioner relied on a Full Bench judgment of the Patna High Court in Madheswardhari Singh and another v. State of Bihar, 1986 Criminal Law Journal 1771, wherein it was held that in all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen and it is available in al criminal prosecutions irrespective of the nature of offence involved. It applied equally to trial and appeal against acquittal and where delay in the trial has not occurred due to accused''s fault, he is entitled to unconditional release. A similar view was taken by the Punjab and Haryana High Court in Madan v. The State of Haryana, 1992(1) Recent Criminal Reports 41 . Keeping in view the principle of law laid down by the Bihar High Court in Madheswardhari''s case (supra), it may be observed that no effective steps appear to have been taken by the prosecution in the instant case by examining any evidence, except the statement of Dr., O.P. Serwal on 4.9.1991 as indicated in Annexure P, since the launching of the prosecution against him in 1987. It is true that this Court had stayed the proceedings against the petitioner before the trial Court on 27.11.1991. Even so, a period of nearly five years had already passed since the initiation of criminal prosecution against the petitioner. The State having not taken any effective steps in examining the prosecution witnesses during this period, the petitioner was apparently prejudiced in preparation of his defence by the reason of delay. In the opinion of this Court, the second contention of the learned Counsel for the petitioner is wellfounded.

Coming to the last contention of the learned Counsel for the petitioner, it may be mentioned that all that the Public Analyst has said in his report, copy Annexure P3, is that the sample of Mirch taken from the petitioner''s shop, contains six living weevils, three dead weevils and four living meal worms. The learned Counsel for the petitioner maintained that this opinion of the Public Analyst does not conform to the requirement of Section 2(i)(a)(f) of the Act, which provides the definition of the term "adulterated". It lays down that an article of food shall be deemed to be adulterated if the same consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or, vegetable substance or is insecticide or in otherwise unfit for human consumption. The learned Counsel for the petitioner vehemently urged that this report of the Public Analyst does not show that the sample of Mirch taken from the petitioner''s shop was worm or insect infested and, therefore, so argued the learned Counsel, the prosecution his the petitioner is liable to be quashed on the ground. In support of his contention, he relied on a single Bench judgment of this Court in State of Haryana v. Om Parkash, 1992(3) Recent Criminal Reports 489 , wherein it was ruled that where the Public Analyst did not report that Zira was unfit for human consumption, presence of worms in Zira does not prove the sample as insectinfested. There appears to be considerable merit in the contention of the learned Counsel for the petitioner and relying on the ratio judgment of this court in Om Parkash''s case (supra), I hold that the report of the Public Analyst, copy Annexure P3, against the petitioner cannot be taken to mean that the sample of Mirch taken from the petitioner''s shop was found to be insect infested or that the same unfit or human consumption.

To conclude, it is held that though the notice, copy Annexure P2, dated 4.9.1991 served upon the petitioner by the trial Court for holding proceedings against him in a summary way is not illegal, yet it has been rendered infrustuous inasmuch as the petitioner has been subjected to protracted prosecution without there being any fault on his part and the prosecution has failed to establish, on the basis of the report, copy Annexure P3, of the Public Analyst that the sample of Mirch taken from the petitioner''s shop was insect infested or unfit for human consumption as required by Section 2(ia)(f) of the Act. In the result, this petition is allowed and the impugned order, copy Annexure P1, and notice, copy Annexure P2, passed by Chief Judicial Magistrate, Gurgaon, against the petitioner on 4.9.1991 as also the proceedings following therefrom are quashed.