Suresh Kumar vs State of Haryana

S.C. Dutta, J.

This is a revisional application against order dated 15.12.1994 passed by the learned Additional Sessions Judge, Hisar setting aside the order of conviction and sentence dated 6.2.1992 passed by the learned Sub Divisional Judicial Magistrate, Fatehabad under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

The facts relevant to the present case are that on 26.12.1988 accused Suresh Kumar (petitioner herein) was apprehended by Himat Singh, G.F.I. in the presence of Dr. P.L. Verma and one Ghansham Dass while the former was carrying two drums each containing 20 Kgs. of milk purchased the sample for analysis, put it into three clean and dry bottles as required under the law. As per report of the Public Analyst, the sample was found to be adulterated as it was deficient in milk solids not fact by 3.5%.

On being summoned, the petitioner put in appearance in the Court as an accused. After recording precharge evidence, charge under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 was framed against the petitioner, to which he pleaded not guilty and thereafter, the petitioner was tried according to warrant procedure case instituted on a complaint instead of being tried summarily as required. After conclusion of the trial and hearing the learned counsel for the parties, the accused was found guilty and convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/. In default of payment of fine he was also ordered to undergo imprisonment for a further period of three months.

Aggrieved by the order of conviction and sentence, the petitioner preferred an appeal and the learned Additional Sessions Judge, who heard the appeal, remanded the case to the trial Court for fresh trial in accordance with law on the ground that the learned Magistrate had committed an error in not following the procedure of summary trial as is required under the law. According to the learned Additional Sessions Judge, the learned Magistrate recorded the statement of the accused about his desire to be tried his case as a warrant case, but the learned Magistrate himself did not apply his mind as required under Section 16(A) of the P.F. Act. Consequently, the learned Additional Sessions Judge observed that the trial was vitiated. In coming to his conclusion, the learned Additional Sessions Judge relied upon some authorities, viz. Sikander v. State of Haryana, 1991 Criminal Law Times, page 531 and Deepak Kumar v. The State of Haryana, 1994(1) Recent CR 92. Consequently, the appeal was allowed and the case remanded to the trial Court for fresh trial in accordance with law and the accused was directed to appear before the trial Court for further proceedings.

Being aggrieved by the decision of the learned Additional Sessions Judge sending the case back to the trial Court on remand, the petitioner has come up before this Court for setting aside the order of remand passed by the learned Additional Sessions Judge and for acquittal of the petitioner. The petitioner supports the findings of the learned Additional Sessions Judge to the effect that the judgment of the learned trial Court is not sustainable in the eyes of law because of noncompliance of the mandatory provisions of Section 16(A) of the P.F. Act. However, he contends that the learned Additional Sessions Judges has erred gravely in reminding the case for retrial instead of acquitting the petitioner of the charge. It is submitted that the petitioner has undergone the agony of trial for a long period and as such, he should not be made to suffer due to lapse on the part of the prosecution. According to the petitioner, the right to speedy trial is well recognised fundamental right under Article 21 of the Constitution of India. According to the petitioner, the incident originally occurred in the month of December, 1988 and since then the petitioner is undergoing the agony of trial. Therefore, it is submitted that he should be acquitted of the charge.

It is evident from the record that the learned trial Magistrate tried the case as under warrant procedure instituted on a complaint. In the course of trial, learned Magistrate recorded the statement of the accused to the effect that he did not want his case to be tried in a summary manner, but wanted a regular trial as a warrant case. The Food Inspector also raised no objection to the regular trial of the accused as a warrant case. The trial proceeded and on conclusion of trial, the learned Magistrate convicted and sentenced the petitioner as aforesaid.

It would appear that the trial held by the learned Magistrate was wholly unwarranted. It was held in a Full Bench decision of this Court in Budh Ram and another v. State of Haryana, 1985(1) RCR 510 (FB) : 1984(2) FCI 179 , that the Legislature intended that all offences under Section 16 (1) of the Act be tried summarily be specially authorised Magistrates unless such a Magistrate in writing opines that the accused deserves better doze of sentence, so he be tried in accordance with the procedure prescribed by the Criminal Procedure Code. It appears that in view of the above noted Full Bench decision, the trial conducted by the learned Magistrate was wholly unwarranted and not according to law. So, it must be held that the learned Additional Sessions Judge was justified in setting aside the order of conviction and sentence passed on the petitioner. In fact, the petitioner does not challenge the observations of the learned Additional Sessions Judge in this regard, but what he contends is that the learned Additional Sessions Judge ought to have acquitted him of the charge on the ground that he has been undergoing the trial for the last long six years. The learned lawyer appearing for the petitioner has relied upon the decision of this Court in Kuldip Singh v. State of Punjab and another, 1990(1) F.A.C. 22; Nand Lal v. State of Haryana, 1987(II) FAC 95 and Daya Ram v. The State of Haryana, 1988(I) FAC 143 to contend that the petitioner has already been under harassment for about six years and, therefore, interest of justice demands that he should be acquitted instead of facing a fresh trial and thereafter, an appeal or revision, if any. He contends further that for the mistake in the procedure, the petitioner cannot be held responsible in any manner.

Learned lawyer appearing for the State submits that the fact the petitioner is facing the trial for the last six years cannot be a ground for setting aside, the order of conviction and sentence. He submits that it is an offence against the Society and as such, the petitioner should not go unpunished. He submits further that the petitioner should not be shown any sympathy in the matter. He submits that even the Apex Court declined to set aside a conviction under Section 16(1)(a)(i) of the P.F. Act on the ground that the appeal has come out after six years before it. In this connection, he cited a case Krishna Iyer v. State of Kerala, 1993(1) F.A.C. 119. It is true that the petitioner was apprehended in December, 1988 and the trial before the learned Magistrate was concluded on 6.2.1992. The appeal therefrom was decided on 15.12.1994. In my view, there cannot be any inflexible rule that whenever any delay occurs in the trial of a 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 cases 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.

Accordingly, the revisional application fails. Let the trial proceed as directed by the learned Additional Sessions Judge, Hisar. The learned trial Magistrate is directed to complete the trial as expeditiously as possible preferably within a period of three months from the date of receipt of this order in this Court. The petitioner is directed to appear before the learned trial Court on 5.4.1995 positively.