State of Haryana vs Birbhan

Dr. Sarojnei Saksena, J.

State of Haryana has filed this criminal revision against the trial Court''s order whereby the application filed by the respondent accused under section 468 Cr.P.C. was allowed and application filed by Shri D.N. Gupta, GFI, for amendment of the complaint which was earlier filed on the basis of the report of the Public Analyst on 20.12.1993 was dismissed.

Brief facts of the case are that a complaint under Section 7(16) of the Prevention of Food Adulteration Act was filed by the Food Inspector against the accused/respondent in the trial Court on 20.12.1993. Sample of Ladoo Boondi was taken by the Food Inspector on 26.10.1993. On analysis, the Public Analyst opined that sample was coloured with prohibited yellow basic coaltar dye and was unsuitable for human consumption. On the application of the accused for sending second sample to the Director, CFL, Mysore, after analysing the second sample, the Director through his report dated 31.1.1994 opined that the sample does not conform to the general standard laid down for an article of food under the provisions of PFA Act and the rules thereunder. The report of the Director, CFL was altogether different from that of the Public Analyst. There was no basis to proceed further with the complaint, hence vide order dated 7.4.1994, complaint was dismissed, accused was discharged and file was consigned to the Record Room.

Subsequently, Shri D.N. Gupta, GFI, filed an application for amendment of the original complaint on the ground that complaint was initially filed on the basis of the report of the Public Analyst dated 20.12.1993 but now after analysing the second sample, the Director, CFL Mysore has given a different report dated 31.1.1994 and has found the sample misbranded. Therefore, he be allowed to amend the complaint and on these facts, he also filed a second complaint on 23.4.1994.

Accused filed an application under Section 468 Cr.P.C. alleging that second complaint is filed beyond the period of limitation, therefore the second complaint cannot be proceeded with and is liable to be dismissed.

The learned Magistrate considered the application under section 468 Cr.P.C. as well as the fact of the presentation of the second complaint on 23.4.1994. He held that earlier when the complaint was filed on the basis of the report of the Public Analyst and the second sample was sent to Director, CFL, the Director gave a different opinion not confirming the opinion of the Public Analyst. Therefore, on that basis, the first complaint was dismissed and accused was discharged. This order amounts to acquittal. He also considered the provisions of Section 300 Cr.P.C. and Article 20(2) of the Constitution and also considered that accused was discharged under section 256 of the Code (even though it is wrongly mentioned as Section 258 of the Code) which amounts to acquittal. He also observed that two courses were open to the Food Inspector either to amend the original complaint after the receipt of the report of the Director or to get the charges amended and finalise the proceedings or to withdraw the complaint and file a fresh one on the basis of the report of Director, CFL. But the Food Inspector did not follow any of these two courses and accused was discharged vide order dated 7.4.1994. That order amounts to acquittal of the accused. Therefore, the second complaint for the same offence is prohibited and being not competent is liable to be dismissed. He also held that the complaint cannot be amended as the accused has already been discharged in that complaint case. The trial Court also observed that sample in this case was taken on 29.3.1985, while the second complaint was filed on 23.4.1994, therefore, this complaint is barred under section 468 Cr.P.C. as it is filed beyond three years i.e. on 23.4.1994.

Petitioner''s learned counsel submitted that trial Magistrate has fallen into an error in dismissing the second complaint as it was not filed on the basis of the same offence which the accused is alleged to have committed. The second complaint was based on the report of the Director, CFL, Mysore which was a distinct offence though based on the same facts. He also contended that the trial Court also fell into an error in holding that the complaint was time barred under Section 468 of the Code because even the Sub Divisional Judicial Magistrate, Narwana in his order dated 7.4.1994 has mentioned that sample of Ladoo Boondi was taken by the Food Inspector on 26.10.1993 and first complaint was filed on 20.12.1993, second, complaint was filed on 23.4.1994. Therefore, there was no reason for the trial Magistrate to hold that second complaint was beyond three years.

The respondent/accused learned counsel argued vehemently that first complaint and second complaint were filed on the same facts. The first complaint was based on the report of the Public Analyst who opined that sample of Ladoo Boondi was found to be coloured with yellow basic coaltar dye and was unsuitable for human consumption. When on the request of the accused, second sample was sent to Director, CFL, who opined vide his report dated 31.1.1994 that sample does not conform to the general standards laid down for an article of food under the provisions of PFA Act and rules thereunder. He found that the sample was misbranded as the extracted sample fat exceeded the specified range of 40.043.0 for ghee. Therefore, it was one and the same complaint and once the accused was discharged it amounts to acquittal of the said offence. Hence, second complaint was not maintainable. He also pointed out that it is settled law that no accused can be tried and convicted for the same offence more than once. He also mentioned that second complaint was filed beyond the period of limitation as prescribed under Section 468 Cr.P.C., therefore, on this count, second complaint was not maintainable.

After hearing rival contentions, in my considered view, the revision petition deserves to be allowed.

The real point for consideration is whether the second complaint was not maintainable as per the provisions of Section 300 of the Code and Article 20(2) of the Constitution and whether it amounts to double jeopardy when the second complaint, though based on same facts, was with regard to a distinct offence.

In Sadhu Ram v. State of Haryana, 1990(1) FAC 200, Sadhu Ram was tried for committing an offence under section 7 read with Section 16(1)(a)(i) of the Act for being in possession of 10 Kgs. of ground chillies powder for sale. Its sample was sent to the Public Analyst who opined that it contained 11.8% ash and 4.9% ash insoluble in dil.HCL. against the maximum prescribed standard of 8% and 1.3% respectively. Sample was containing grit to the extent of 4.5% and oil soluble red coaltar dye. During the pendency of the trial, second sample did not show the existence of oil soluble red coaltar dye or contaminated discrepant with ash soluble and dil. HCL. The ash did not contain grit. However, the sample showed the presence of dead insects and one extraneous iron part clear. In the complaint case, complainant adduced his evidence, accused gave his statement and also adduced his defence. Thereafter keeping in view the judgment in Ravi Ghai v. State of Punjab, 1985(1) FAC 273 the Magistrate dropped the proceedings. The complainant/Inspector thus filed a complaint on the basis of the report of the Director CFL. This order was passed on 22.9.1986. Thereafter, complainant/Food Inspector filed fresh complaint on December 20, 1986. Accused was summoned. Accused filed an application for quashing proceedings of the second complaint. Chief Judicial Magistrate declined the prayer and framed the charge against the petitioner. Hence, he filed a petition under section 482 Cr.P.C. The matter was referred to Division Bench in view of the judgment of Ravi Ghai''s case. The question posed was whether the particulars of adulterated foodstuff as found by Director CFL are required to be incorporated in the complaint filed by the Food Inspector initially on the basis of the report of the Public Analyst which stands superseded by the report of Director, CFL. The Division Bench held :

"As the report of the Director, Central Food Laboratory supersedes that of the Public Analyst it follows that if the prosecution of the person from whom the sample had been taken is to be launched on the basis of the report of the Director, Central Food Laboratory, then such report must form part of the complaint of the Local Health Authority and this may be done either by amending the original complaint to incorporate therein the report of the Director, Central Food Laboratory or by the withdrawal of the original complaint and the filing of a fresh complaint based upon such report of the Director, Central Food Laboratory."

When the case was again heard by the Single Bench, the learned Single Judge held that filing of the second complaint for the commission of the same offence is not prohibited by any of the provisions of the Code of Criminal Procedure but it is prohibited under Article 20(2) of the Constitution and section 300 of the Code of Cr. Procedure. The person who had been acquitted or convicted by the Court, he cannot be tried again for the same offence. In the facts and circumstances of the case in hand, it cannot be said that the petitioner was either acquitted or convicted by the order dated 22.9.1986 passed by the Chief Judicial Magistrate. Thus filing of the second complaint incorporating the particulars of the report of the Director, CFL against the petitioner was not barred. Furthermore, its trial was also not barred. The bar as provided under the Constitution or Code of Criminal Procedure, comes into play only when in one of the cases the accused is either acquitted or convicted.

The case in hand has similar facts. The distinctive feature is that in this case first complaint was dismissed and accused was discharged but the reason assigned is the same that the report of the Director CFL does not confirm the report of the Public Analyst. Therefore, there is no ground to proceed with the complaint. Thus the order dated 7.4.1994 of the learned Magistrate does not amount to order of acquittal. The complaint was consigned to Record Room. On 23.4.1994, Food Inspector filed second complaint incorporating the facts mentioned in the report of the Director CFL. Explanation of Section 300 of the Code specifically provides that dismissal of a complaint or the discharge of the accused is not an acquittal for the purpose of this Section. Further to invoke the bar of issue estoppel under Article 20(2) of the Constitution identity of the offence is a requisite condition. Previous conviction or acquittal for one offence does not bar a subsequent trial and conviction for a separate and distinct offence even though the two offences arise out of the same facts and the allegations in the two complaints are identical. What is necessary to determine whether two offences are distinct is to see whether their ingredients and contents are identical. In this case the ingredients of the offence for which second complaint was lodged are different and distinct from the ingredients of the offence of the first complaint though they arise out of the same facts. For holding the above view I take assistance from the judgments rendered in State of Bihar v. Murad Ali, AIR 1989 SC 1; State of Bombay v. S.L. Apte, AIR 1961 SC 578 and Bhagwat Swarup v. State of Maharashtra, AIR 1965 SC 682. Hence, in my considered view the second complaint was neither barred under section 300 of the Code of Criminal Procedure nor was vitiated under Article 20(2) of the Constitution.

So far as the limitation point is concerned, the trial Magistrate has fallen into an error in holding that this occurrence took place on 29.3.1985 and second complaint was filed on 23.4.1994. Therefore, the second complaint as it was filed beyond 3 years of 29.3.1985 was barred by limitation under Section 468 Cr.P.C. He was failed to consider the order passed by his predecessor on 7.4.1994 wherein he has specifically mentioned that the sample was taken on 26.10.1993. During arguments, learned A.A.G. argued that on the basis of the report of the Public Analyst, first complaint was filed on 20.12.1993 and second complaint was filed on 23.4.1994; thereby the second complaint was filed within three years from the date of sample was taken from the accused respondent. Thus, the trial Magistrate wrongly held that second complaint was barred under section 468 Cr.P.C.

Considering all the above facts, revision is allowed. Case is sent back to the Trial Magistrate to proceed with the second complaint in accordance with law.

Revision allowed.