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2000 DIGILAW 502 (PAT)

Ravi Kumar And Another v. State Of Bihar

2000-03-30

INDU PRABHA SINGH

body2000
Judgment 1. This application in revision under Ss. 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against that part of the judgment and order dated 5-8-1997 passed by Shri Daroga Prasad, 3rd Additional Sessions Judge, Gaya in Cri. Appeal No. 13/96/27/97 whereby while allowing the appeal and setting aside the judgment of conviction of the petitioners passed by the S.D.J.M., Gaya in G.O. Case No. 25 of 1993/Tr. No. 231 of 1996 under S. 16(1)(a)(i) of Prevention of Food Adulteration Act (in short the Act) sentencing each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500.00 each in default of rigorous imprisonment for two months (sic) be remanded the aforesaid case for fresh trial to the trial Court in accordance with law. 2. The prosecution case, in short, is that at about 4.10 p.m. on 25-8-1992 the Food Inspector (P.W. 6) along with another Food Inspector (P.W. 2) visited the shop of petitioner No. 2 and purchased 600 grams of Mung Dal for sample after complying with the necessary formalities. The aforesaid sample of Mung Dal was sent to the Public Analyst who found the sample adulterated due to the presence of artificial colouring matter. Accordingly, a prosecution report was prepared. The defence of the petitioners before the learned S.D.J.M. was of false implication and the petitioner, Durga Prasad, denied his presence at his shop at the time of the alleged purchase of the sample. In all six P.Ws. were examined in this case. The learned trial Court by his judgment and order aforesaid convicted the petitioners in the manner indicated above. 3. In this petition it has been contended that the original report of the Public Analyst was never produced in the Court. Thereby the mandatory provisions of Rule 3 of the Prevention of Food Adulteration Rules was violated. The prosecution was sanctioned by the Civil Surgeon which was not in accordance with law. The trial of the petitioners was a nullity in view of the provisions contained in S. 326 of the Code. Against the judgment of conviction and sentence the petitioners filed the aforesaid criminal appeal which was heard by the learned Additional Sessions Judge who passed the order for remand and re-trial though setting aside the conviction and sentence of the petitioners. Against the judgment of conviction and sentence the petitioners filed the aforesaid criminal appeal which was heard by the learned Additional Sessions Judge who passed the order for remand and re-trial though setting aside the conviction and sentence of the petitioners. It is against the said or that the present revision application has been filed in which it has been contended that the case could not have been remanded back to the trial Court since the mandatory provisions of law as contained in S. 326(3) of the Code were not complied with. On these ground amongst others it has been contended that the impugned order be set aside. 4. I have heard the parties in detail. The only point for consideration in this case is whether the order of the learned Additional Sessions Judge for the remand of the case before the trial Court after setting aside the judgment of conviction against the petitioner can be allowed to stand in view of S. 326(3) ofthe Code. Both the parties have addressed the Court on the various questions of law involved and has relied on a number of decisions which I will take up for consideration in due course. But firstly I would like to state undisputed facts. 5. In the first place it has to be noted that the petitioners were being prosecuted under S. 16(1)(a)(i) of the Act. Sec. 16(a) of this Act provides for the power of Court to try cases summarily according to which all offences under Sub-sec. (1) of S. 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf and the provisions of Ss. 262 to 265 of the Code shall, as far as may be, apply to such trial. The procedure of summary trial has been given in Chapter XXI of the Code. Sec. 264 of the Code provides that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment shall be written in the language of the Court. The next section that comes up for consideration in this behalf is S. 326 of the Code. I would like to examine in this section in some detail. 6. The next section that comes up for consideration in this behalf is S. 326 of the Code. I would like to examine in this section in some detail. 6. It may be mentioned here that S. 326 of the Code corresponding to S. 350 of the old Code, 1898 originally the words "Judge" in this section at different places were not in this section. The same were inserted in it by the amending Act 45 of 1978 by which the "Judges" along with "Magistrate" were also brought within its sweep. Sub-sec. (3) of this Section runs as follows :- "3. Nothing in this section applied to summary trials or to cases in which proceedings have been stayed under S. 322 or in which proceedings have been submitted to a superior Magistrate under S. 325." From this it would become clear that so far as the summary trial is concerned the provisions of S. 326 of the Code will not apply. It may be mentioned in this connection originally under S. 350 of the old Code whenever a case was placed before another Magistrate he had to held the trial de novo the same position has been maintained under S. 326 of the present Code except from the case of summary trial where the old system of de novo trial was allowed to continue for the obvious reason that under S. 264 of the Code as noticed above only the substance of the evidence and not the entire evidence was required to be recorded. 7. In the present case as will appear from the impugned judgment passed by the Additional Sessions Judge he had taken notice of this provision of law. From this judgment it appears that while P.Ws. 1 and 2 were examined before the another Magistrate, P.Ws. 3 and 6 were examined before the learned Sub-Divisional Judicial Magistrate, against whose judgment and order the criminal appeal was filed before him. In this view of the matter relying on S. 326(3) of the Code he set aside the order of conviction of the learned trial Court as vitiated on account of non-recording of the evidence of all the witnesses by the same Sub-Divisional Judicial Magistrate who had passed the judgment of conviction and sentence against the present petitioners. In this view of the matter relying on S. 326(3) of the Code he set aside the order of conviction of the learned trial Court as vitiated on account of non-recording of the evidence of all the witnesses by the same Sub-Divisional Judicial Magistrate who had passed the judgment of conviction and sentence against the present petitioners. However, in the concluding portion of his judgment the learned Additional Judge remanded back the case to the lower Court for fresh trial in accordance with law. It is against this order of the learned Addl. Sessions Judge that the present revision application has been filed. 8. On behalf of the petitioners it has been submitted that this occurrence is of the year 1992 and already 8 years have elapsed. If the re-trial of the present petitioners is allowed it is likely to take another 2-3 years which will result in unnecessary harassment of the petitioners. In this connection reliance has been placed on the case of Vyas Sah V/s. The State of Bihar (1997) 1 Pat LJR 991. This was the case under the Essential Commodities Act (in short the E. C. Act) in which also all the offences were to be tried in summary way. Relying on the provisions of S. 326(3) of the Code the learned single Judge (P. K. Sarin, J.) held that the trial was vitiated since the Magistrate who pass the order had not recorded the entire evidence. He further held that since the offence was committed about 11 years ago and only related to the violation of the terms and conditions of the licensing order passed under the E.C. Act. Ho held that under the facts and circumstances of the case the de novo trial was not suggestible. He, accordingly, set aside the judgment of conviction of the appellants before him and acquitted him of the charge. Here also the facts are not very different. The allegation against the present petitioners is for selling the Mung Dal which was found to be adulterated due to the presence of artificial colouring matter. The offence had taken place in the year 1992 and we are already in the year 2000.Under the circumstances, I do not think that only useful purpose will be served by re-trial of the petitioners as ordered by the learned lower appellate Court. 9. The offence had taken place in the year 1992 and we are already in the year 2000.Under the circumstances, I do not think that only useful purpose will be served by re-trial of the petitioners as ordered by the learned lower appellate Court. 9. In this connection on behalf of the petitioner reliance has also been placed in the case of Bal Krishna Pillai V/s. M/s. Matha Medicals (1991 Cri LJ 691 : (1991 Cri LJ 349). In this case also the appellants were prosecuted under the Essential Commodities Act. The allegation against them was about the sale of some medicine at a prices in excess of the maximum retail price. From the facts it would appear that the sale of two medicines in question for the price in excess of the maximum retail price was held punishable by the trial Court. This judgment was set aside by the High Court only on the interpretation it made of the provisions of the Drugs (Price Control) Order without considering the other defence as put forth with by the appellants. The Hon ble Supreme Court did not agree with the aforesaid finding of the High Court. But instead of remanding back the case to the High Court for recording a fresh finding the Hon ble Supreme Court held that it would be inappropriate after the lapse of several years to send back the case to the High Court for deciding the remaining the defence raised by the accused which would further prolong conclusion of the trial. The following observation was made by the Hon ble Supreme Court in paragraph 12 of the judgment : "In our opinion, it would be inappropriate after the lapse of several years to send the case to the High Court for deciding the remaining defences raised by the respondents which would further prolong conclusion of the trial. It is also clear that without rejecting the other defences, it is not possible to uphold the conviction and sentence awarded by the trial Court." 10. In this connection my attention has also been drawn to Art. 21 of the Constitution which provides that no person shall be deprived of his liberty except in accordance with the procedure established by law. It has been repeatedly held by the Hon ble Supreme Court that the accused in a criminal case is entitled to speedy trial. In this connection my attention has also been drawn to Art. 21 of the Constitution which provides that no person shall be deprived of his liberty except in accordance with the procedure established by law. It has been repeatedly held by the Hon ble Supreme Court that the accused in a criminal case is entitled to speedy trial. By way of illustration a mention may be made to the case of Hussainara Khatoon V/s. Home Secretary, State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036) in which it has clearly been held that speedy trial is a part of fundamental right to life and liberty as enshrined in Art. 21 of the Constitution. Further a reference in this connection be also made to the case of Hussainara Khatoon V/s. Home Secretary, State of Bihar, AIR 1979 SC 1369 : (1979 Cri LJ 1045) wherein it has been held that it was the duty of the Supreme Court to enforce the fundamental right of the accused to speedy trial and in cases where undue delay was not due to any fault of the accused, the prosecution case may be quashed. If the present case is remanded back to the trial Court for fresh trial that will amount to denial of the benefit of Art. 21 of the Constitution to the accused who are entitled to speedy trial as envisaged in our Constitution. On this ground also I do not find that this part of the judgment of the learned lowers appellate Court should be allowed to continue. 11. In the result this revision petition is allowed and impugned order so far as it directs the remand of the case to the trial Court for fresh trial of the petitioner in accordance with law is quashed. However, the judgment of acquittal passed by the lower appellate Court will stand.Petition allowed.