Ram Kishan vs State of Haryana

Surinder Singh, J.—Ram Kishan son of Gurditta Mall, the Petitioner, was convicted by the Judicial Magistrate Ist Class, Safidon, for an offence u/s 7(1) punishable u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and was sentenced to undergo 6 months'' rigorous imprisonment and a fine of Rs. 1,000/- in default of payment of fine, the Petitioner was ordered to undergo further rigorous imprisonment for two months. His appeal was partly accepted by the Additional Sessions Judge (1), Jind, to the extent that although the conviction and sentence of the Petitioner were set aside, the case was remanded to trial Court with the direction that it should record the statement of the Petitioner afresh in accordance with the provisions of Section 313 of the Code of Criminal Procedure by specifically putting to him the extent of alleged adulteration as evidenced by the report of the Public Analyst and then to decide the case afresh The present revision petition is directed against this order of the learned Additional Sessions Judge.

On facts there is no dispute that according to the report of the Public Analyst, the article recovered from the Petitioner, i.e Bura, was, on analysis, found to be not conforming to the prescribed standard in that the Sulphur Dioxide contents were found to be 89.5 p.p.m. as against the maximum prescribed ratio of 70 p.p m. It is also apparent that this specific allegation of adulteration was not put to the Petitioner during the course of his examination u/s 313 of the Code of Criminal Procedure

The contention raised by the learned Counsel for the Petitioner is that it was the duty of the trial Court to put all the allegations in respect of the prosecution case to the Petitioner in his examination u/s 313 of the Code of Criminal Procedure and if the prosecution was not vigilant enough to ensure compliance of this necessary formality they should not be allowed to fill in the lacuna by remand of the case. On the other hand the accused should get the benefit of such default The learned Counsel has, in this behalf, placed reliance on Bhim Singh v. State of Punjab 1980 (2) P. F. A. C. 346, an authority of this Court, wherein it was held that where the Public Analyst''s report showing diflciency in the milk solids not fat content was not put to the accused u/s 313 of the Code of Criminal Procedure, the conviction was set aside In the same sequence reliance is also placed on an unreported decision in Chander Bhan v. The State of Haryana Cr. K(sic) 1019 of 1984, Criminal Revision No. 1019 of 1984, decided by a learned Single Judge on 1st August, 1985 on the same proposition The facts is the later authority are on all fours with those in the present case. The leaned Single Judge allowed the revision petition and set aside the conviction of the Petitioner in that case.

As against the above authorities, the learned Counsel for the State has referred to State of Haryana v. Sawan Rem (1982) 9 Cr. L. T. 358, decided by a Division Bench of this Court A perusal of this authority reveals that the same is distinguishable on facts What was held in this case is that the benefit of a technical ground like those referred to in the authority, should not be allowed to the accused in a case involving an anti social crime The technical grounds referred to in the said authority are quite different and they do not relate to the default committed by the Court in not putting the essential ingredients of adulteration to the accused in his examination u/s 313 of the Code of Criminal Procedure. This authority has, therefore, no application to the present case.

The result is that this revision petition is allowed and the judgment of the lower appellate Court, ordering the remand of the case to the trial Court, with the direction that it should retry the same from the stage of examination of the accused u/s 313 of the Code of Criminal Procedure, is set aside. It is material to note that in the present case the sample in question was taken on 23rd December, 1982, i e, about three years ago. In such a situation the retrial of the case would result in prolonging the agony of the Petitioner for no fault of his. The Petitioner is consequently acquitted of the charge framed against him.