Roshan Lal vs State of Haryana

S. S. Grewal, J.

This petition, under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of complaint, Annexure P1 filed by the'' Food Inspector under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) in the Court of Chief Judicial Magistrate, Ambala on 7th of July, 1981, and consequent proceedings taken thereunder.

According to the allegations in the complaint on 9th of May, 1981 at 9 a m. Natha Singh, Government Food Inspector along with Dr. H. R. Goyal found Roshan Lal having in his possession 7 litres of cow''s milk meant for public sale contained in a drum. After giving him notice in writing on form VI prescribed under the Rules, the Food Inspector purchased milk for sample on payment of Rs. 1.65. The milk so purchased was divided and put into three dry and clean bottles. 18 drops of formal in were added in each bottle as preservative. The bottles were duly stoppered, labelled and wrapped in a strong thick paper. Paper slip was pasted around each bottle which bears the singnatures of the local health authority. Signatures/thumb impression of the accused were taken on the outer cover of the sample bottles. The paper cover on the bottles was further secured and fastened and twined with thread and sealed with two distinct seals of the Food Inspector and Dr. H. R. Goyal. One of the sample bottles along with copy of memorandum in form VII was sent for analysis to Public Analyst, Haryana, whereas the remaining two bottles were sent to the Local Health Authority. As per report of the Public Analyst, the sample of milk was adulterated as it was found deficient in milk solids not fat by 5 per cent of the minimum prescribed standard.

Initially charge was framed against the petitioner on 25121982 and the trial proceeded according to warrant procedure. Later on the trial Court vide its order dated 29th July, 1988 issued notice of allegations to the petitioner and proceeded to try him summarily.

Comments of the trial Court were obtained concerning the delay in completion of the trial. According to the comments of the trial Court the case could not be decided earlier due to strike of the members or the Bar at Ambala for a continuous period of 21/2 years and on various dates later on, transfer of Presiding Officer; absence of the accused; personal accused exemption sought by the accused and on account of adoption of different procedure by the trial Court.

The learned counsel for the parties were heard.

The quashment has been sought by the petitioner firstly on the ground that after framing of the charge as far back as on 241282 and its modification on 8.4.83 the trial Court proceeded to try the case by adopting warrant procedure and later on vide its order'' dated 171988 proceeded to try summerely because or observations of the Full Bench of this Court in Budh Ram v. State of Haryana, 1985(1) Recent Criminal Reports 511 (FB) : 1985 Cr. LJ 311 , wherein it was observed that the Legislature intended that all offences under Section 6((i) 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. 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.

Procedural defects would not vitiate the trial as such errors or defects in procedure amount to mere irregularity and do not amount to an illegality. I find support in my view from the authority of the apex Court in Gopal Dass v. State of Assam, AIR 1961 SC 986 wherein it was observed as follows :

"It is true that after the amendment of the Criminal Procedure Code an offence under Section 448 is triable as a summons case and Mr. Goswmi adopted the procedure prescribed for a case triable as a warrant case, we are, however, of the opinion that this irregularity does not vitiate the proceedings and is curably by the provisions of Section 537, as no prejudice to the accused has been established in the case."

It seems that the afore cited authority in Gopal Dass''s case was not brought to the notice of the Full Bench which decided Budh Ram''s case (supra) in which one of the questions posed and answered was as to whether the provisions of Section 16A envisages trial under Section 16(1) in the first instance in a summary way is mandatory in character. The question about rectification of procedural defects during the trial was neither posed nor considered by the Full Bench in Budh Ram''s case (supra).

The question about the rectification of a procedural defect was considered by Division Bench of this court in Sayam Lal v. State of Haryana and others, Vol. XCIX 1991(1) PLR 361, wherein it was observed as follows :

"The rule that at once charge is framed the case must end either in acquittal or conviction is subject to well recognised exceptions. Rectification of a procedural mistake is in our view one such exception. There might be cases, depending on their own facts and circumstances in which the High Court may in its wisdom quash the proceedings in exercise of its inherent power, it cannot be laid down that on the passing of the order changing one procedure for another would by itself result in the proceeding being vitiated."

The Division Bench after dealing with second proviso to Section 16A of the Act observed that "it is open to the Magistrate in the course of the trial to switch over from summary procedure to a warrant procedure in terms of the said provisions. It is well settled that no one has a vested right in any one procedure. It is equally well settled that power to alter the charge at any stage vesting in the Court under Section 216 of the Code is very wide. The rule that once charge is framed the case must end either in acquittal or conviction is subject to well recognised exceptions. Rectification of a procedural mistake is in our view out such exception". It was also observed that "the proposition laid down in Pawn Kumar''s case, 1989(2) F.A.C. 36, in so far as the same lays down that such an order vitiates the whole trial resulting in acquittal is too wide to be accepted as a correct statement of law." It was further observed in Shyam Lal''s case (supra) that it cannot be laid down that on passing of the order changing one procedure for another would by itself result in the proceedings being vitiated.

Thus the omission to follow summary procedure in the initial stage of the present case instead of following procedure meant for warrant trial would at best may, amount to a mere irregularity and not an illegality which would vitiate the entire proceedings in the trial or would entitle acquittal of the accused. Thus, the submission made on behalf of the petitioner for quashment of the proceedings because of adoption of different procedure is hardly tenable.

Secondly, it was contended on the basis of the authority in Madhesh wardhari Singh and another v. State of Bihar, 1986 Cr. LJ 1771, that the right of a speedy trial inalienable fundamental right of a citizen under Article 21 of the Constitution of India and that delay of 11, years in not concluding the trial in the present case was sufficient to quash, the criminal proceedings pending against the petitioner. There is no dispute that the right of speedy trial is now an inalienable fundamental right of the petitioner as guaranteed under Article 2 1 of the Constitution of India. The main question which remains to be considered is as to whether undue delay in completion of the trial was mainly or partly due to the fault of the accused petitioner or not. From the perusal of the comments of the trial Court concerning delay in completion of the trial it is quite evident that from 2331985 till 691985 the personal presence of the accused was dispensed with at his own request. On 1891987 the accused absented himself and for securing his presence nonbailable warrants were ordered to be issued. On 171988 the trial Court adopted summary procedure in view of the Full Bench authority of this Court in Budh Ram''s case (supra). The members of the Bar at Ambala remained on strike for a continuous period of two years and for another period of six months on this score. After the strike of the members of the Bar at Ambala was over, the trial Court completed the complainant''s evidence on 2381991. After recording the statement or the accused the case was fixed for recording defence evidence on 691991. Since then several opportunities have been granted to the petitioner for production of the defence evidence but he has failed to avail any such opportunity. It is quite apparent that the completion of the trial was delayed for a long time also because of the conduct of the accused in getting his personal presence exempted, then because of his absence from the Court and seeking unnecessary adjournments either on personal grounds or because of the nonavailability of the counsel due to strike of the members of the Bar at Ambala for a period of two years. Since the accused too was responsible for delay in completion of the trial, proceedings pending against him in the trial Court cannot be quashed on that account.

The Full Bench authority of Patna High Court in Madeshwardhari Singh''s case (supra) or Single Bench authorities of this Court including that of Krishan Lal v. State of Haryana, Criminal Misc. No. 4934 of 1991 decided by G. S. Chahal, J. on 110 1991 would not in any manner help the case of the present petitioner because the considerable delay, in completion of the trial is due to his own fault or that of his counsel.

For the foregoing reasons, there is no cogent reason or good ground to quash the impugned complaint or subsequent proceedings taken thereunder against the petitioner. This petition is accordingly dismissed. The trial Court is however, directed to dispose of this case expeditiously. The copy of the order be sent to the trial Court for compliance.