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2000 DIGILAW 340 (PNJ)

Rishi Kumar v. State of Haryana

2000-03-24

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a Criminal Revision filed by Rishi Kumar and has been directed against the judgment dated 4.7.1991 passed by Addl. Sessions Judge, Sirsa, who allowed the appeal of Rishi Kumar but instead of acquitting him remanded the case to the Court of Chief Judicial Magistrate with the direction for holding a fresh trial in accordance with law. 2. Some facts can be noticed in the following manner :- A criminal complaint under Section 16(1)(a) read with Section 7(1) of the Prevention of Food Adulteration Act was filed by the State of Haryana against Rishi Kumar petitioner with the allegations that on 26.2.1983 Bhagwan Dass, the then Govt. Food Inspector, Sirsa had inspected the shop of the petitioner situated in Main Bazar, Ellenabad and the petitioner was found present at the time of the visit and he was in possession of 30 Kgs. of Haldi meant for public sale out of which the complainant after disclosing his identity and service of requisite notice had purchased 50 grams as sample against payment of Rs. 4.80. The sample was sent to the office of Public Analyst, Haryana, who vide report held that the Haldi contained insects and was damaged to the extent of 24.2 per cent against the maximum prescribed standard of 5 per cent by weight. The petitioner was earlier convicted by the Court of Chief Judicial Magistrate vide order dated 29.7.1988, but the said judgment was set aside by the Addl. Sessions Judge, Sirsa vide his judgment dated 22.11.1988. After remand, the predecessor of the Chief Judicial Magistrate, vide order dated 11.1.1989 served a notice of accusation on the petitioner for his having committed an offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and the petitioner pleaded not guilty and claimed trial. In support of its case, the prosecution examined Bhagwan Dass as PW-1 and Sham Sunder, Clerk from the office of Local Health Authority, Sirsa as PW-2. Independent witness Bharo Dhan was given up by the prosecution as having been won over by the petitioner. Dr. A.K. Bar, who was accompanying the raiding party, was not examined on account of his death. On closure of prosecution evidence, statement of the petitioner was recorded under Section 313 Criminal Procedure Code in which he pleaded innocence. Independent witness Bharo Dhan was given up by the prosecution as having been won over by the petitioner. Dr. A.K. Bar, who was accompanying the raiding party, was not examined on account of his death. On closure of prosecution evidence, statement of the petitioner was recorded under Section 313 Criminal Procedure Code in which he pleaded innocence. When called upon to enter into defence, the petitioner did not lead any evidence. The learned Magistrate vide judgment dated 26.2.1990 came to the conclusion that the prosecution has been able to prove the charge against the petitioner beyond reasonable doubt. Therefore, he convicted the petitioner under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act read with Section 7 of the said Act and sentenced him to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 2,000/-. In default of payment of fine, the petitioner was directed to undergo rigorous imprisonment for 45 days. The learned Magistrate while passing the order of sentence, also came to the conclusion as follows :- ".......also bearing in mind that the accused has in fact been undergoing the ordeal of trial since 1983 onwards I hereby sentence the accused to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 2,000/- in default of payment of fine, the accused shall undergo further rigorous imprisonment for 45 days." 3. Aggrieved by the judgment and order of the trial Court, petitioner filed the appeal before the Court of Sessions, which concurred with the arguments raised by the learned counsel for the petitioner that procedure according to law has not been complied with as the successor Magistrate had relied upon the evidence which was recorded by his predecessor and this adoption of procedure is not in accordance with law, hence the first Appellate Court held that the judgment of the Chief Judicial Magistrate was illegal and it was consequently set aside. The first Appellate Court also came to the conclusion that the case requires to be remanded for fresh trial. Though it was argued before the first Appellate Court that the case should not be remanded rather the petitioner should be given the benefit of acquittal, the learned Addl. The first Appellate Court also came to the conclusion that the case requires to be remanded for fresh trial. Though it was argued before the first Appellate Court that the case should not be remanded rather the petitioner should be given the benefit of acquittal, the learned Addl. Sessions Judge in his judgment dated 4.7.1991 for the reasons given in para No. 7 of the judgment thought it proper for fresh trial in accordance with law. Para No. 7 of the judgment of the first Appellate Court can be quoted in the following manner :- "7. The learned counsel for the appellant has argued that since the accused has faced trial for a number of years, so instead of remanding the case back for fresh trial, he should be acquitted. Reliance has been placed on Jasmer Chand v. State of Haryana, 1989 Prevention of Food Adulteration Journal 421, decided on 30.9.1988. In that case the sample of milk was found deficient in milk solids not fat to the extent of 3.5% only. Reliance has also been placed on Nand Gopal v. State of Haryana, 1991(1) Chandigarh Law Reporter 129. In that case sample of soyabean oil showed that U.S. matter was 2.58% as compared to the maximum of 1.5%. Both these rulings are distinguishable inasmuch as the deficiency could not be held to make the milk or oil injurious to health. In the present case before me the sample of Haldi taken from the convict appellant was found to be insect-damaged to the extent of 24.2% against the maximum prescribed standard of 5% by weight. Such damage cannot be held to be ignorable and I think that the accused does not deserve to be acquitted simply because he has been facing trial for a long time. Moreover, the counsel representing the accused did not assist the Court at any stage in pointing out that the procedure for summary trial be strictly followed and it cannot be said that the accused is not responsible for long and protracted trial. On perusal of order-sheet of the trial Court, I also find that the accused jumped bail and remained absent for sometime. So I do not deem it to be a fit case to outright warrant acquittal of the accused on account of the fact that he has been facing trial since long. On perusal of order-sheet of the trial Court, I also find that the accused jumped bail and remained absent for sometime. So I do not deem it to be a fit case to outright warrant acquittal of the accused on account of the fact that he has been facing trial since long. The judgment and order dated 26.2.1990 deserve to be set aside. So accepting the appeal the impugned judgment and order dated 26.2.1990 passed by the learned Chief Judicial Magistrate are set aside but following Leela Krishan v. State of Haryana (supra), the case is remanded back to the trial Court for fresh trial in accordance with law. Fine deposited by the accused in the trial Court be refunded to him. The parties are directed to appear in the Court of Chief Judicial Magistrate, Sirsa on 18.7.1991." 4. Aggrieved by the judgment dated 4.7.1991, the present revision. 5. I am disposing of this revision after going through the grounds of revision and after hearing Mr. Rajinder Singh, District Attorney, who appeared on behalf of the State of Haryana. 6. The trial under the Prevention of Food Adulteration Act as per Section 16-A of the Act is to be conducted summarily. Section 16-A lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under sub-section (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial. Section 326 of the Code of Criminal Procedure lays down that whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. For our purpose sub-section (3) of Section 326 is very important which categorically lays down "Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325." Meaning thereby that the succeeding Magistrate has to start the proceedings afresh as if he is holding the trial in a summary case. In the present case, there is no dispute that after the remand of the case vide order dated 22.11.1988, fresh notice was given to the petitioner and most of the evidence was recorded by him, but on the transfer of the then Chief Judicial Magistrate (Shri Vinod Jain), the evidence has been relied upon by the successor Chief Judicial Magistrate (Shri R.S. Virk). Shri Virk did not give any fresh notice to the petitioner. In this view of the matter and by virtue of the provisions of Section 326(3) Criminal Procedure Code, the evidence earlier recorded by Shri Jain could not be acted upon by Shri Virk, who passed the order dated 26.2.1990, vide which the substantive sentence of six months was imposed upon the petitioner. The first Appellate Court rightly held that the Magistrate passing the conviction order cannot rely upon the evidence recorded by his predecessor in summary trials in view of the judgment Lila Kishan v. State of Haryana, 1989 Prevention of Food Adulteration Journal 461. To this extent the judgment of the first Appellate Court is upheld as it is in conformity with law. 7. The point for adjudication is as to whether the Addl. Sessions Judge, Sirsa was justified in remanding the case vide his judgment dated 4.7.1991. I have already quoted the reasons given by the first Appellate Court and am of the considered opinion that these reasons cannot be sustained in the eyes of law. Since Shri Virk committed a patent illegality in relying upon the evidence recorded by his predecessor under Section 326(3) Criminal Procedure Code, therefore, the learned Addl. Sessions Judge, Sirsa should have acquitted the petitioner instead of remanding the case. The petitioner cannot be allowed to suffer for the fault of the Court. We cannot lose sight of the fact that the petitioner was suffering the agony of the criminal proceedings since 1983. Earlier he was convicted by the trial Court. Sessions Judge, Sirsa should have acquitted the petitioner instead of remanding the case. The petitioner cannot be allowed to suffer for the fault of the Court. We cannot lose sight of the fact that the petitioner was suffering the agony of the criminal proceedings since 1983. Earlier he was convicted by the trial Court. Then the case was remanded by the first Appellate Court to the trial Court. Again the petitioner suffered the agony of the criminal proceedings and his trial took 7 years when he was finally convicted by the Court of Chief Judicial Magistrate, Sirsa on 26.2.1990. The first Appellate Court should have taken proper care of his aspect that the petitioner was suffering the agony of the criminal proceedings since 1983. 8. In this view of the matter, the impugned judgment dated 4.7.1991 is hereby set aside by allowing the present revision and the petitioner stands acquitted of the charge framed against him. This revision I am disposing of in the year 2000 after a lapse of 17 years when the sample was taken from the petitioner in 1983. Revision allowed.