Vijay Kumar vs State of Haryana

P.K. Jain, J.

This revision is directed against the judgment dated April 9, 1996 passed by the Additional Sessions Judge, Sirsa whereby the conciction and sentence of the petitioner for an offence under section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (for short the Act) recorded by the Sub Divisional Judicial Magistrate, Dabwali vide his judgment/order dated February 20, 1991 has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1200/ and in default of payment of fine to further undergo imprisonment for two months.

The facts necessary for the disposal of this petition are that on 6.10.1985, Food Inspector purchased a sample of cow''s milk curd from the petitioner who was found to be in possession of 3 kilograms of such curd meant for sale, in accordance with the provisions of the Act and rules made thereunder. On an analysis of the sample, the same was found to contain milk fat 0.7 per cent and milk solids not fat 10.8 per cent and accordingly the milk fat was found to be 82.5 per cent deficient of the minimum prescribed standard. After completing the necessary formalities under the Act read with rules thereunder, a complaint was filed against the petitioner on 4.12.1985.

The Sub Divisional Judicial Magistrate, Dabwali summoned the petitioner and proceeded with the trial in a summary manner. However, vide order dated 19.4.1989, the Sub Divisional Judicial Magistrate after giving an opportunity to the petitioner to be heard, ordered de novo trial of the case as a warrant case. Precharge evidence was recorded and thereafter a charge under section 16(1)(a)(i) read with Section 7 of the Act was framed against the petitioner to which he pleaded not guilty and claimed trial.

In support of its case, prosecution examined two witnesses i.e. O.P. Kalra, Food Inspector (PW.1) and Doctor M.R. Bishnoi (PW.2). In his examination under section 313 of the Code of Criminal Procedure, the petitioner denied all the allegations of the petitioner and pleaded false implication. In his defence, the petitioner examined Bahadur Chand (DW.1) who was given up by the prosecution as having been won over, who deposed that no sample was taken from the petitioner by the Government Food Inspector in his presence.

5 On an appraisal of the evidence produced by the parties, the Sub Divisional Judicial Magistrate Dabwali under section 16(1)(a)(i) read with Section 7 of the Act, convicted and sentenced him as stated above. His appeal against conviction and sentence did not find favour with the Additional Sessions Judge and the same was rejected by the impugned judgment dated April 9, 1996. The petitioner has approached this court under section 401 of the Code of Criminal Procedure.

It may be stated that since there was a concurrent finding of facts recorded by the two courts below and no illegality or irregularity could be be pointed out at the motion hearing, notice qua sentence was issued to the State.

I have heard the learned counsel for the parties and have perused the record.

Shri G.S. Bawa Advocate learned counsel for the petitioner has argued that the prosecution against the petitioner was launched on 4.12.1985 and ultimate conviction was recorded in the year 1991 which was confirmed by the Appellate Authority in the year 1996. It is thus contended that the petitioner has already faced the agony of a criminal trial for more than 10 years and has also undergone some part of the sentence awarded to him. It has been argued by the learned counsel that under the circumstances the sentence imposed upon the petitioner may be reduced to the imprisonment already undergone. In support of this plea the learned counsel has placed reliance upon a decision of this court rendered in Chander Bhan v. State of Haryana, 1996(1) RCR 125 . On the other hand Shri K.S. Malik Advocate while appearing on behalf of the respondent State has argued that the Act prescribes a minimum sentence to be imposed upon a convict and the court has no power to impose sentence below the minimum prescribed sentence.

The respective arguments have been considered carefully. It is not disputed by the learned State counsel that the prosecution in this case was launched in the year 1985 and the petitioner was convicted for the first time in the year 1991. His conviction and sentence have been affirmed in the year 1996. In other words it is evident that the petitioner has been facing a criminal trial for the last about more than 10 years.

In Chander Bhan''s case (supra) I had the occasion to consider the effect of an inordinate delay in concluding the trial against the accused for an offence under the Act, qua the sentence to be imposed upon him. In para 7 of the judgment it was observed as under:

"Now it cannot be disputed that the right to speedy and expeditious trial is one of the most valuable and cherished right guaranteed under the Constitution. Fundamental rights were not a teasing illusion to be mocked at. These were meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it anytheless the right of the accused. Right to speedy trial flowing from Article 21 encompasses all the stage, namely the stages of investigation, inquiry, trial, apeal, revision and retrial. This is how, the court shall understand this right and have gone to the extent of quashing the prosecution after such inordinate delay in concluding the trial of an accused keeping in view the facts and circumstances of the case. Keeping a person in suspended animation for 10 years or more without any reason at all cannot be with the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution by this Court in the exercise of its extraordinary jurisdiction."

This view finds affirmation in a decision of the Apex Court in Braham Dass v. The State of Himachal Pradesh, 1988(2) RCR 184 (SC) : 1988(II) F.A.C. 13 and two other judgments of this court rendered in Nand Lal v. State of Haryana, 1992(1) Recent C.R. 82 and Ishwar Singh v. State of Haryana, 1994(1) Recent C.R. 160 . The present case is fully covered by the views expressed by me earlier in Chander Bhan''s case (supra) duly supported by the authority of the Apex Court and the earlier decisions of this Court. It is also not disputed that the petitioner has also undergone a part of the sentence imposed upon him.

For the reasons mentioned above, this revision succeeds in part. The conviction of the petitioner for an offence under section 16(1)(a)(i) read with Section 7 of the Act is hereby affirmed. However, keeping in view the facts and circumstances of the case and the fact that the petitioner has already faced the agony of protracted prosecution and suffered mental harassment for a long period of more than 10 years, his sentence is reduced to the period of sentence already undergone. Sentence of fine is, however, maintained alongwith its default clause. If the fine has already been deposited, the petitioner shall be released from the custody forthwith if not wanted in any other case.