Shri Durga Prasad vs The State of Bihar

Ram Nandan Prasad, J.—The prayer in this application is to quash the order dated 17.10.1982 passed by the Chief Judicial Magistrate, Gaya in case No G.O. 377 of 1982, whereby cognizance has been taken against the Petitioner for an offence u/s 16(1) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). Prayer has been also made to quash the entire proceedings of the case.

The learned Counsel for the Petitioner first raised the question of competence of the Chief Judicial Magistrate, Gaya in dealing with the case and passing the order of cognizance. It has been submitted by him that u/s 16(A) of the Act the Magistrate has to be especially empowered to (sic) if in summary way in accordance with procedure laid down under Sections 260 to 265 of she Code of Criminal Procedure. He has pointed out that there was no such notification empowering the Chief Judicial Magistrate to take cognizance in respect of the cases under the Act. He has also taken the stand that in any view of the matter since the case related to Jehanabad Subdivision (thereafter Jehanabad has become a district) and the Subdivisional Judicial Magistrate, Jehanabad was empowered to take cognizance of and try the case of the subdivision and the Chief judicial Magistrate, Gaya, did not have the Jurisdiction for dealing with the case and passing the impugned order of cognizance.

When the hearing of this case was taken up, information was called for by me from the Administrative Office of this Court to indicate who was the Officer duly empowered to take cognizance and try cases under the (sic) the relevant time. The office pointed out that the empowering had teen done under Notification No. 80A dated 28th March 1930 issued by the High Court. This notification is to the following effect:

Notification The 28th March, 1989

No. 80A: The courts of the Subdivisional Judicial Magistrates named in column 2 of the table given below, are vested with the powers u/s 260(i)(c) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) in connection with summary trial of offences, arising generally within the Subdivision noted against each court in column 3 of the table to try offences u/s 16(A) of the Prevention of Food Adulteration Act, 1976.

Thus under this notification the Sub-divisional Judicial Magistrate at each station was empowered by the High Court to try summarily offences arising generally within the subdivision under the Act. It may be noted that Section 16A was inserted in the Act by Section 15 of the Amending Act 34 of 1976. Prior to the insertion of Section 16A, the general provision u/s 20 of the Act empowered a Judicial Magistrate 1st class, to try the, case under the Act. However, by insertion of Section 16A trial by summary procedure by specially empowered magistrate was introduced. It is unfortunate that the provisions of Section 16(A) of the Act were overlooked because Section 16A clearly states that it is Oily the State Government which can issue the notification empowering the Magistrate to try offences under the Act. Section 16(A) of the Act is as follows:

16-A power of Court to try Cases summarily:

Notwithstanding anything contain in the Code of Criminal Procedure, 1973 (Act 2 of 1974), all offices under Sub-section (1) of Section 16 shall be tired 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 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial.

Admittedly no notification of the Stale Government undo Section 16(A) of the Act, was in existence at the time of occurrence or when the impugned order of cognizance was passed. Since the High Court was not competent to issue any notification u/s 16(A) of the Act notification No. 80A could not validly empower the S.D.J.M. to deal with the offence under the Act in any manner including me taking of cognizant. It appears that this mistake was ultimately detected in 1987 and the High Court requested the State Government to issue the relevant Notification u/s 16(A) of the Act. The State Government issued first notification No. 830/15 dated 16.5.989 (Department of Health) empowering all Judicial Magistrates to try cases under the Act and subsequently on the recommendation of the High Court, modified it and issued notification No. 1278(15) Swa. Health Department dated 26.8.1989 empowering all Subdivision Judicial Magistrates by designation to try case under the P.F.A. Act. Thus it was forth first time on 16.5.1989, when the first notification was issued by the Government that any judicial magistrate become competent to deal with and try cases under the Act. Under the subsequent Notification dated 26.8.89 only the divisional Judicial Magistrate remained latent to deal with and try cases under the Act. The unfortunate result of this legal lacuna is that all proceedings and trials in sender the Prevention of Food Adulteration prior to 16.5.1989 are Illegal and without jurisdiction and therefore invalid. In fact in Cr. Appeal 60 and 61 of 1982 decided on 29th July 1988 this High Court has held that the empowering of magistrates u/s 16A of the could be done by the State Government and by the High Court and as such trial held by the Magistrates without being empowered by the State Government are void (sic) and invalid.

In the context of what has been discussed above, the Petitioner�s contention that the cognizance had been taken by an officer who is not empowered to do so is correct and must be upheld and on that ground the impugned order has to be quashed and it is so done.

At first I had thought that the case may remanded to the Sub-divisional Judicial Magistrate, Jehanabad to now proceed from the stage of cognizance and dispose of the case in accordance with law but it appears that the whole exercise will turn out to be futile, The report of the prosecuting inspector does not at all indicate that he had followed the proper legal procedure in taking the sample and giving receipt of the same to the accused. There is nothing to show that signature of any witness was taken on the sample in question. Further, there is nothing to indicate if the sample was actually sent for analysis and whether after analysis any adverse report has been received. However, even if an adverse report has been received that would riot be of much significance in as much as the whole procedure in taking the sample was faulty and, therefore, the remand of the case will be of no use. In this view of the matter the entire criminal proceedings are quashed and the application is allowed.