State of Haryana vs Tek Chand

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 6.9.1989, was dismissed.

Brief facts of the case are that sample of Kali Mirch was taken from the shop of the accused respondent by the complainant on 25.2.1989. Sample was sent to Public Analyst for analysis. He found that it contained 40 iron pieces the weight of which was 540 PPM. When the complaint was presented in the court and the accused was summoned, exercising his right under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short the Act), he applied that second sample be sent to Director CFL, Mysore for the purposes of analysis. Second sample was sent for analysis to Director CFL Mysore who vide his report dated 13.9.1989 opined that the sample does not contain iron pieces but it does not conform to the standard laid down for black pepper (Kali Mirch) whole under the provisions of PFA Act, 1954 and the rules thereof, in that it is "misbranded" and contrary to the provisions of section (ix)(c) of PFA Act 1954 and Rules thereof as the sample is white pepper. This report of the Director was altogether different from the report of the Public Analyst as the presence of white pepper in the sample of Kali Mirch was not a ground taken in the complaint for prosecution of the accused. Thus in view of the report of the Director CFL Mysore, the learned Magistrate vide his order dated 7.4.1994 held that the complaint has become infructuous and there is no provision for amendment in the complaint; the complaint was dismissed and the accused was discharged. Thereafter, on 23.4.1994, second complaint was filed by Himat Singh, Food Inspector on the basis of the report of the CFL. With regard to this second complaint, the accused filed an application under section 468 Cr.P.C. alleging that this second complaint is beyond the period of limitation; therefore, no cognizance can be taken of this second complaint. Shri D.N. Gupta, GFI filed an amended application on 7.1.1993 which was ignored by the Court and first complaint was dismissed but subsequently this second complaint was filed on 23.4.1997.

The learned Magistrate considered the application under Section 468 of the Code 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 different opinion not confirming the opinion of the Public Analyst. Therefore, on that basis the first complaint was dismissed and accused was discharged. This discharge order amounts to acquittal. Therefore, second complaint cannot be filed. He also held that this second complaint was filed on 23.4.1994 whereas the sample was taken on 26.7.1989. The complaint should have been filed within 3 years, therefore, it is beyond limitation as well, the Court cannot take cognizance of this complaint keeping in view the provisions of Section 468 Cr.P.C. Thus the petition filed by the accused was allowed and second complaint was dismissed on the ground that it is not maintainable for the same offence.

Learned AAG argued that the report of the Director, CFL which is reproduced above, shows that the sample was misbranded; therefore, this was not the same offence for which first complaint was filed on the basis of the report of the Public Analyst. Hence, complainant was competent to file second complaint on the basis of the report of the Director CFL. Thus according to him, the learned Magistrate fell into an error in holding that second complaint is not maintainable as with regard to the first complaint the accused was discharged which amounts to acquittal. He contends that second complaint is based on different report and therefore it cannot be said that it is the same offence for which the first complaint was lodged.

Learned AAG also contended that even the second complaint was not liable to be dismissed on the ground that it is beyond limitation. The facts under which the complaint was lodged after three years were apparent before the lower Court. Immediately after the first complaint was dismissed on 7.4.1994, without losing much time second complaint was filed on 23.4.1994. Such like offences are not to be treated lightly. Under Section 473 Cr.P.C., the lower Court should have taken cognizance of the offence even after the expiry of the period of limitation. Such like offences are against the health and safety of the citizens and their effects are farreaching; therefore on this technical ground complaint ought not to have been dismissed.

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. Public Analyst opined that it contained forty iron pieces the weight of which was 540 PPM but when on the request of the accused, second sample was sent to Director, CFL, he opined that the sample was misbranded under section 2(x)(c) of the Act. 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. It is settled law that no accused can be tried and convicted for the same offence more than once. He also contended that this second complaint was filed beyond the period of limitation as prescribed under Section 468 Cr.P.C.; therefore, on this count also second complaint was not maintainable.

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

In M/s. Mittal Spices v. State of Punjab, 1991(1) FAC 111, relied on by the respondent''s learned counsel, it was held that the delay of more than two years in launching the prosecution is fatal but in that case it was also observed that there is no justification for launching prosecution after more than two years from the date the sample was taken and after obtaining the report of the Public Analyst, the delay is fatal. It is also observed that to launch a prosecution at such a belated stage may result in causing harassment to accused in some cases and may also result in genuine offenders escaping punishment.

In State of Punjab v. Bakhtawar Lal, 1993(1) RCR 319, sample of tea leaves was sent to Public Analyst for analysis who opined that it contains iron nails. Prosecution was launched on the basis of that report. When second sample was sent to CFL, no iron nail was found in the sample by the CFL but it found that the sample contained extraneous matter of chaff. On these facts the accused was acquitted in that complaint. No doubt the facts of this case are somewhat identical but in that case on the basis of the second report, second complaint was not launched. When the same complaint was being prosecuted by the prosecution, the court rightly held that since the very basis of the complaint is negated by the report of the CFL, the accused cannot be held guilty for the offence for which the complaint was lodged. But in this case, second complaint was filed on 23.4.1994 on the basis of the report of Director, CFL.

In Ravi Ghai v. State of Punjab, 1985(1) FAC 273 the facts were somewhat identical. In that case sample of Ice Cream was taken. On analysis, Public Analyst found that it contained 5.6% milk fat as against the minimum prescribed standard of 8%. When second sample was sent to Director, CFL, it opined that it contained 8.5% milk fat but it found that starch was also present. On these facts, it was held that the presence of starch was not one of the grounds in the complaint launched against the accused Ravi Ghai and, therefore, complaint and the proceedings were quashed by the High Court. This case is also distinguishable on facts.

Dharam Chand v. State of Haryana, 1994(2) FAC 131 simply lays down that there should be speedy trial in such cases and inordinate delay in the disposal of the case itself causes sufficient agony to the accused and thus on these facts it was found that no useful purpose will be served in sending the accused to undergo the sentence of imprisonment awarded to him by the trial Court.

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 was sent to Director CFL who opined that the 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 of Ravi Ghai''s (ibid) 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, definitely the complaint was filed after three years of the date on which sample was taken but considering the above facts, the trial Magistrate ought to have condoned the delay under Section 473 of the Code.

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

Revision allowed.