Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 526 (RAJ)

Bal Kishan v. State of Rajasthan

1997-04-22

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the record of the case. (2). This petition under Section 482 of the Criminal Procedure Code is directed against the order dated 1st October, 1991 passed by the learned Additional Chief Judicial Magistrate, Shahapura in criminal case No. 327/76 (146/91). By the afore- said order charge under Section 7 read with 16 of the Prevention of Food Adulteration Act was framed against the accused-petitioner. (3). The facts relevant for the disposal of this petition may be summarised as under : (4). On 6th May, 1975 at about 4.30 P.M. Food Inspector, Shahapura went to Shanker Ice Factory. He found Bal Kishan selling Ice-candy. 100 gms. ice candies were purchased by the Food Inspector from the accused Bal Kishan for the purpose of chemical examination. After purchasing ice candies and mixing formaline in the same, in appropriate quantities the sample was sealed then and there. The sample taken by the Food Inspector was sent to Public Analyst Rajasthan, Jaipur. On analy- sis the sample was found to contain colouring matter of permitted coaltardye format and artificial sweetner (saccharine). The Public Analyst opined that the sample was adulterated as it did not conform to the prescribed standards of purity. (5). After receipt of the Public Analysis Report a complaint was filed by the Food Inspector in the Court of learned Chief Judicial Magistrate, Bhilwara alleging the commission of offence under Section 16(1) of the Prevention of Food Adulteration Act. The complaint was filed against two persons, namely, Shri Jamna Lal and Shri Bal Kishan. The learned Chief Judicial Magistrate, Bhilwara took cognizance of the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act and issued process against the accused persons. Jamna Lal appeared in obedi- ence to the summon issued by the Court and he was released on bail. Bal Kishan did not appear and the case was adjourned from time to time for service of summons on Bal Kishan. On 25th July, 1977 learned Munsif and Judicial Magistrate, Shahapura, to whom the case had been transferred directed that proceedings under Section 299 of the Criminal Procedure Code should be taken against the accused Bal Kishan who could not be served and did not appeared. (6). The prosecution examined Shri Sumer Singh PW-1, the Food Inspector before framing of charge. On 25th July, 1977 learned Munsif and Judicial Magistrate, Shahapura, to whom the case had been transferred directed that proceedings under Section 299 of the Criminal Procedure Code should be taken against the accused Bal Kishan who could not be served and did not appeared. (6). The prosecution examined Shri Sumer Singh PW-1, the Food Inspector before framing of charge. After recording the evidence of Sumer Singh PW-1 learned Munsif and Judicial Magistrate, Shahapura discharged the accused Jamna Lal of the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act vide order dated 7th March, 1979. The grounds on which the discharge order was passed were (a) that there was no evidence to show that accused Jamna Lal was concerned with the manufacture of adulterated Ice-candy (b) that a licence had been issued by the Municipal Board, Shahapura to Shanker Ice Factory for manufacturing and selling Ice-candy containing saccharine though later-on it was found that the licence was issued wrongly. In this petition this court is not concerned with the question whether the order of discharge of Jamna Lal was in accor- dance with law. The accused-petitioner Bal Kishan moved this Court for anticipatory bail when he came to know that warrant of arrest had been issued to compel his attendance. Order dated 27th June, 1991 shows that this court directed that bailable warrant of arrest should be issued against Bal Kishan consequently, the learned Additional Chief Judicial Magistrate, Shahapura issued a bailable warrant of arrest. Accused-petitioner Bal Kishan appeared in the lower court and he was released on bail. After his appearance several dates were fixed by the lower court for hearing arguments on charge and on 1st October, 1991 the order which is complained against in this petition was passed without recording the statement of any witness in presence of the accused-petitioner Bal Kishan. (7). The learned counsel for the petitioner has submitted that accused Jamna Lal was discharged by the lower court and he was the owner of the Shanker Ice Factory and in view of this fact accused Bal Kishan should not have been proceeded against because when the owner has been discharged trial of the servant for the offence under Prevention of Food Adulteration Act would not be proper. It is also submitted by the learned counsel for the petitioner that the licence issued by Municipal Board, Shahapura permitted Shanker Ice Factory to manufacture and sell Ice-candy containing saccharine and so long this licence was not cancelled or invalidated no offence was committed by the accused. During the hearing it was also brought to the notice that after the appearance of the accused-petitioner Bal Kishan the prosecution did not examined Sumer Singh PW-1 again as was required by Section 244 of the Criminal Procedure Code. The learned Public Prosecutor has submitted that discharge of Jamna Lal does not entitle accused Bal Kishan to seek discharge because the grounds on which Jamna Lal had been discharged were different from those which the accused Bal Kishan can take. Regarding licence issued by the Municipal Board, Shahapura the learned Public Prosecutor has submitted that this licence does not confer any immunity on the accused person against prosecution for violation of provisions of Prevention of Food Adulteration Act. Regarding the omission to examine Sumer Singh PW-1 under Section 244 of the Criminal Procedure Code after the appearance of the accused- petitioner Bal Kishan the learned Public Prosecutor has submitted that the accused had agreed that the statement of Sumer Singh already recorded by the Court may be read in evidence and, therefore, it was not necessary for the Court to re-examine Sumer Singh PW-1 under Section 244 of the Criminal Procedure Code. (8). I have carefully considered the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor. Section 244 of the Criminal Procedure Code requires that when in any warrant-case, instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (9). Section 273 of the Criminal Procedure Code requires ``except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. (10). (9). Section 273 of the Criminal Procedure Code requires ``except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. (10). These two provisions namely, Section 237 and Section 244 of the Criminal Procedure Code lay down the general principle that the evidence on which the prosecution proposes to rely for the purpose of framing of charge as well as for recording a conviction must be recorded in presence of the accused person after he has appeared in court and in exceptional circumstances only the evidence recorded elsewhere or in some other mode may be permitted to be used against the accused if expressly provided by the Code. In criminal cases there is nothing like ex parte trial of the accused persons. In view of Section 273 and Section 244 of the Criminal Procedure Code it was necessary for the learned Additional Chief Ju- dicial Magistrate to ask the prosecution to produce Sumer Singh PW-1 in the court for the purpose of giving statement on oath against the accused-petitioner Bal Kishan. Section 299 of the Criminal Procedure Code further makes it clear that the ``evidence recorded in absence of the accused can be given in evidence against an accused in any enquiry or trial if the deponent is dead or incapable of giving eviden- ce or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. In the instant case none of the circumstances mentioned in Section 299(1) of the Criminal Procedure Code were present when the learned Additional Chief Judicial Magistrate proceeded to hear the arguments on charge without recording the statement of Sumer Singh PW-1. I, therefore, hold that the evidence of Sumer Singh PW-1 recorded before the appearance of the accused-petitioner Bal Kishan was not admissible against him in view of the express provisions of Sections 299, 273 and 244 of the Criminal Procedure Code. I, therefore, hold that the evidence of Sumer Singh PW-1 recorded before the appearance of the accused-petitioner Bal Kishan was not admissible against him in view of the express provisions of Sections 299, 273 and 244 of the Criminal Procedure Code. The submission of the learned Public Prosecutor that since the accused agreed that the statement of Sumer Singh PW-1 recorded before the appearance of the accused-petitioner may be read in evidence against him was sufficient to read that statement in evidence against the accused I do not find any force in this submission. The law made by the competent legislature is binding on the Court as well as on the parties and it is well established that there can be no estoppel against the statute. Parties cannot by any agreement between them defeat any provision of law or render any provisions of law redundant. Trial of the accused person in accordance with the procedure established by law is absolutely necessary in view of Article 21 of the Constitution. Therefore, neither the prosecution nor the accused had any right to make any agreement which was contrary to the express provisions of law. Since the statement of Sumer Singh PW1 recorded before the appearance of the accused-petitioner Bal Kishan in Court is not admissible against Bal Kishan the charge which was framed against the accused-petitioner Bal Kishan cannot be maintained, it deserves to be quashed. (11). So far as discharge of Jamna Lal is concerned the order of discharge pa- ssed in favour of Jamna Lal does not create any right in favour of the accused-petitioner Bal Kishan. According to the prosecution Bal Kishan sold adulterated Ice-candy to the Food Inspector and such sale by itself is an offence punishable under Section 7 read with 16 of the Prevention of Food Adulteration Act. Therefore, the submission that since Jamna Lal has been discharged accused Bal Kishan should also be discharged cannot be upheld as a correct proposition. So far as second submission made by the learned counsel for the petitioner is concerned I have considered Rule 47 of the Prevention of Food Adulteration Act. This Rule provides that no artificial sweetener shall be added to any article of food. The food articles in which artificial sweeteners may be used are given in the list they are in the nature of carbonated water, supari, pan masala and pan flavouring material. This Rule provides that no artificial sweetener shall be added to any article of food. The food articles in which artificial sweeteners may be used are given in the list they are in the nature of carbonated water, supari, pan masala and pan flavouring material. Ice-candy is not included in the list. Rule 47 of the Prevention of Food Adulteration Rules, 1955 does not permit under any circumstances to use artificial sweeteners in Ice-candy. In view of provisions of the Prevention of Food Adulteration Act Muni- cipal Board, Shahapura was not legally empowered to issue any licence to Shanker Ice Factory for manufacture and sale of ice candies containing saccharin. It is well established that everyone should be presumed to know law and ignorance of law is no excuse. In view of this presumption the accused could not have been mis-lead by the unauthorised licence issued by the Municipal Board, Shahapura. Therefore, the accused cannot take refuge behind the licence Ex.P-9 issued by the Municipal Board, Shahapura. It may also be mentioned here that the licence at best can be used as estoppel against the authority which issued it. If the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act was an offence against the Municipal Board, Shahapura only and would have been compoundable, there might have been some justification to plead estoppel on the basis of Ex.P-9.But the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act is an offence against the State and is not compoundable and, therefore, even on principle of estoppel the licence Ex.P-9 issued by Municipal Board cannot be used as valid defence against the prosecution for the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act. (12). For reasons mentioned above the order dated 1st October, 1991 and the charge framed by the learned Additional Chief Judicial Magistrate against the accused-petitioner Bal Kishan under Section 7 read with 16 of the Prevention of Food Adulteration Act deserves to be quashed and is hereby quashed. The two ob- jections raised by the learned counsel for the petitioner against the prosecution have been found to be without substance. The two ob- jections raised by the learned counsel for the petitioner against the prosecution have been found to be without substance. The case is, therefore, remanded to the learned Additional Chief Judicial Magistrate, Shahapura with a direction that he will give an opportunity to the prosecution to produce its evidence under Section 244 of the Criminal Procedure Code and after recording statements of the witness or witnesses who may be produced by the prosecution, the learned Additional Chief Judicial Magistrate shall hear the parties about framing of the charge and thereafter pass order according to law. (13). The record of the case be sent to the learned Additional Chief Judicial Magistrate, Shahapura promptly.