Ramesh Kumar vs State of Haryana

V.S. Aggarwal, J.

This is a revision petition by Ramesh Kumar son of Jai Bhagan directed against the judgment passed by the learned Additional Sessions Judge, Kurukshetra dated 30.1.1995. By virtue of impugned judgment the learned Court had remanded the case to the Court of Chief Judicial Magistrate, Kurukshetra for proceeding in accordnace with law.

The relevant facts are that on 24.1.1985 Kali Ram, Food Inspector took sample of milk out of 180 Kgs. of milk. It is alleged to have been kept for public sale in a big drum. The sample was sent to the Public Analyst. He found that fat contents were 5.7% against 4% and solid not fat were 8% against 8.5.%. Complaint was filed in the Court. Notice was served on the accusedpetitioner. During trial 3 witnesses were examined and after the statement of the accused was recorded and considering the defence, learned Chief Judicial Magistrate, Kurukshetra pronounced the judgment. He held the petitioner guilty of commission of offence under Section 16(1)(a)(i) of Food Adulteration Act, 1954. He was sentenced to undergo RI for nine months and to pay a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further simple imprisonment for two months.

Before the learned Additional Sessions Judge when the appeal came up for hearing, it was urged that earlier Sh. J.B. Sharma was the Chief Judicial Magistrate. He recorded statement of one witness. Subsequently the then Chief Judicial Magistrate was transferred and two more witnesses were examined. The contention raised was that since procedure was that of summons trial, the statement recorded by the earlier Chief Judicial Magistrate could not be read in evidence. The learned Additional Sessions Judge accepted the plea and remanded the case to the learned Chief Judicial Magistrate for proceeding in accordance with law.

Aggrieved by the said judgment, the present petition has been filed.

The precise argument of the learned counsel for the petitioner was that the petitioner has since faced the agony of trial for 10 years. Now the same has been remanded again. Keeping in view that there has to be a speedy trial, the proceedings may well be quashed.

Section 16A of Prevention of Food Adulteration Act gives the power to the Judicial Magistrate to try the cases summarily. The proviso 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 provision 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 another reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record on 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."

It is apparent from the aforesaid that ordinarily all offences under subsection (1) of Section 16 shall be tried in a summary way. However, the Court may at the trial act under the second proviso to Section 16A of the Act, but an order must be passed after hearing the parties that it is undesirable to try the case summarily and sentence of more than 1 year may have to be passed. In the present case, such an order had not been passed. During the pendency of the trial, the Chief Judicial Magistrate was transferred. He had recorded statement of one witness. Since the trial was of a summary nature, subsection (3) to Section 326 of the Cr.P.C. came into play. Section 326(1) and (3) reads as under :

"326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another : (1) Whenever any (Judge or Magistrate) after having heard and recorded whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or Magistrate) who has and who exercises such jurisdiction, the (Judge or Magistrate) so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by this predecessor and partly recorded by himself:

Provided that if the succeeding (Judge or Magistrate) is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re summon any such witness, and after such further examination, crossexamination and reexamination, if any, as he may permit, the witness shall be discharged.

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325.

It is apparent from the aforesaid that evidence recorded by one Chief Judicial Magistrate in a case that was being tried summarily could not be read by the other. The learned Additional Sessions Judge, therefore was justified in passing the order holding that evidence of the witness already recorded by the earlier Chief Judicial Magistrate could not be considered by the Chief Judicial Magistrate who convicted the petitioner.

No doubt there has been a delay in this regard. The obvious question, therefore, that seeks an answer is: as to whether proceedings should be quashed or not ?

The attention of the Court was drawn towards the decision of this Court in the case of Dharam Pal v. State of Haryana, 1990(2) Chandigarh Criminal Cases 287. In the cited case the complaint was filed under the Prevention of Food Adulteration Act. The trial was of a warrant case. Suddenly it was changed to summary trial. Keeping in view the delay, the proceedings were quashed. Somewhat different was the view expressed by this Court in the case of Lila Krishan v. State of Haryana, 1989 Criminal Law Times 39. The facts of the case were more akin to the present case. A similar argument had been advanced. Repelling the said arguments in paragraph 5, following findings were arrived at:

"5. It has been argued that the retrial in this case should not have been directed on the ground that the petitioner has been sufficiently harassed since September 23, 1985. The counsel for the respondent has on the other hand vehemently argued that the harassment was not because of any mistake on the part of the Court but it was the statements of both the parties that the trial Court did not adopt the procedure for summary trial. Moreover, it is not a case of adulteration in an article which does not become unfit for human consumption even after the adulteration. Rather it is a case where in a sample of 200 grams i.e. 1/3rd of 600 grams taken as sample, nine living weevils, 5 living meal worms and one living spider were found to be present in the Atta and it was on this ground that the sample was found to be not fit for human consumption."

The same view as in the case of Lila Krishan (supra) prevailed with this Court in the case of Suresh Kumar v. State of Haryana, 1995(2) Recent Criminal Cases 189 . The Single Judge of this Court repelling the argument held that in all cases where there is a delay, proceedings need not be quashed. It was held :

"In my view, there cannot be any inflexible rule that whenever any delay occurs in the trial of case, the accused would be entitled to acquittal. The matter is to be determined depending upon the facts and circumstances of each case. Here the accused was found carrying two drums each containing 20 kgs. of milk. On examination it was found to be adulterated. This type of case is an offence against the Society and deserves to be dealt with seriously. I have noticed earlier that even Supreme Court declined to acquit the accused on the ground that there had been delay in the trial of the accused. Therefore, relying on decision of the Supreme Court as aforesaid, I find no merit in the revisional application, which is bound to fail. I order accordingly."

What might appear to be that some difference of opinion cannot be taken now to be so. The decision of the Supreme Court clinches the issue in the case of K. Krishna Iyer v. State of Kerala, 1993(3) Recent Criminal Reports 289 (SC) : 1993 Prevention of Food Adulteration Cases 119 . Therein also there was a delay of more than 6 years when the appeal was pending. A similar prayer was made for quashing the proceedings. Supreme Court repelled the argument and held:

"The appeal has remained pending in this Court ever since and as the appellant had obtained an order of bail, he, obviously was not interested in an early disposal of the appeal and took no steps in that behalf. The pendency of the appeal in this Court for about six years does not by itself render the conviction bad or raise any other equity in his favour. We can take even a judicial notice of the fact that the type of adulterated article sold by the appellant is the one generally consumed by children and it is not only illegal but even immoral to serve them with articles containing artificial sweeteners use whereof has been prohibited by the statute. Just because the appeal has remained pending here since 1985 the society cannot be made to suffer for this delay by letting the criminal go unpunished as a crime of this nature being a crime against the society at large, cannot be ignored. Sympathy in such cases is totally misplaced."

Therefore, keeping in view the ratio of K. Krishna Iyer (supra), it must be held that merely on the ground of delay, proceedings cannot be quashed. Delay herein occurred because of the fact that one Chief Judicial Magistrate who recorded part of the evidence was transferred. It was not taken care of by the other Judicial Magistrate, who had succeeded the earlier Chief Judicial Magistrate. The said inadvertent omission occurred on the part of the trial Court. The petitioner indeed cannot take the benefit of the fault of the Court. The nature of the crime against the Society in such like matters does not permit that on account of delay the proceedings should be quashed.

Consequently, for the reasons given above, the petition being without merits, must fail and is dismissed.