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2001 DIGILAW 338 (HP)

Vishwa Nath v. State Of Himachal Pradesh

2001-11-20

KAMLESH SHARMA

body2001
JUDGMENT : Kamlesh Sharma, J. (Oral) : 1. The petitioners were convicted for offence under Section 16 (1)(a)(i) of Prevention of Food Adulteration Act (hereinafter called 'the Act') and sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs. 1,000/- each and in default of payment of fine to undergo simple imprisonment for one month each by judgment dated 12.8.1996 by Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur. They filed appeal against the judgment of Additional Chief Judicial Magistrate, which was decided by the Sessions Judge, Bilaspur by the impugned judgment dated 18.12.2000. The Sessions Judge has set aside the judgment of Additional Chief Judicial Magistrate and acquitted the petitioners on the ground that trial of the case stood vitiated as the Additional Chief Judicial Magistrate, who has decided the case, had not recorded the evidence as envisaged under sub-section (3) of Section 326 Criminal Procedure Code which envisages that a summary trial the case should be decided by the same Judge or Magistrate who has heard the whole of it by taking cognizance of the offence and recording the evidence. The Sessions Judge has further ordered remand of the case to the Additional Chief Judicial Magistrate for de novo trial and the petitioners are aggrieved by this direction and have assailed it in this revision petition. 2. It is not in dispute that petitioner Sant Ram was running a KARYANA shop at village Kallar, Tehsil Ghumarwin, District Bilaspur and on 4.10.1993 the Food Inspector inspected his shop and took sample of packets of biscuits kept in the shop for Rs. 15/- vide receipt Ex. P.2 executed by the petitioner Vishwa Nath. As per the report, Ex. P.9 of the Public Analyst, the sample packets of the biscuits was not found to be containing the batch number, month and year of the manufacture, names of ingredients and statement in capital letters "contains added flavour" are not mentioned on the label though the same was found to be containing permitted colours and flavours on the label of the packet and the name and address of the manufacturer mentioned on the packets of biscuits was also found to be not complete which amounted to misbranding within the meaning of Section 2(ix)(k) of the Act. Accordingly, the petitioners were convicted and sentenced under Section 16 (1)(a)(i) of the Act by the trial Court. 3. Accordingly, the petitioners were convicted and sentenced under Section 16 (1)(a)(i) of the Act by the trial Court. 3. The Sessions Judge has not gone into the merits of the case and rightly so for the reason that the trial stood vitiated, as admittedly, the Additional Chief Judicial Magistrate, who decided the case, had not recorded the evidence. Section 16-A of the Act provides that all the offences under sub-section (1) of Section 16 are triable in a summary way by a Judicial Magistrate of first Class specially empowered in this behalf by the State Government and the provisions of Sections 262 to 265 (both inclusive) of Criminal Procedure Code apply to such trial. These Sections find mention under Chapter XXI and provide procedure for summary trials, maintenance of record in summary trials and writing of judgment in summary trials. Section 326 (1) and (2) provides that the succeeding Judge or the Magistrate may act on the evidence recorded either fully or partly by his predecessor and partly by himself, but if he is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re-summon any such witness for the purpose of examination, cross-examination and re-examination and de novo trial cannot be claimed by the accused on the ground that his case should be decided by a Judge who has heard the whole of it. Keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well established right of the accused to claim de novo trial and that of the Court to so direct by amending statute of 1955, but sub-section (3) of Section 326 takes away the summary trials from the purview of sub-sections (1) and (2) of Section 326 which means that the cases of summary trial should be decided by the same Judge or the Magistrate who has tried whole of it by taking cognizance and recording the evidence. Obviously, for the reason that in case of summary trial only the substance of evidence is recorded and not the entire evidence of the witness and the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and his successor Judge or Magistrate cannot appreciate and take the decision only on the basis of substance of evidence recorded by his predecessor. 4. Therefore, in the case of summary trial only that Judge or Magistrate who has taken the cognizance and recorded the evidence has the jurisdiction to decide the case and if a Judge or a Magistrate decides the case of summary trial on the basis of evidence recorded or partly recorded by his predecessor the trial gets vitiated. It is an incurable illegality as provided under Section 461(n) which provides that if any Magistrate not being empowered by law in this behalf passes sentence under Section 325 on proceedings recorded by another Magistrate, his proceedings shall be void. Section 325 is put at par with summary trials in sub-section (3) of Section 326 Criminal Procedure Code, therefore, the illegality under Section 461(n) can be applied in the case of summary trial and if the Magistrate decides a case on the basis of evidence recorded or partly recorded by his predecessor his decision is void. Therefore, this Court finds that the Sessions Judge has rightly set aside the conviction and sentence of the petitioners which was passed by the Additional Chief Judicial Magistrate, who had not taken the cognizance and recorded the evidence in the matter. For taking this view this Court has placed on the judgments in Ramadas Kelu Naik v. V.M. Muddayya and Another, 1978 Cr.L.J. 1043, Chandana Surya Rao v. State, 1989 Cr.L.J. 2077, State of Rajasthan v. Rajesh Agrawal and Others, 1996 Cr.L.J. 1057 and Prafulla Pradhan v. State of Bihar, 1999 F.A.J. 124. 5. The result of above discussion is that there is no merit in this revision petition and it is dismissed. However, in view of the fact that the alleged offence had taken place as far back as on 4.10.1993 since when about nine years have passed, it will not be fair and just to direct de novo trial as ordered by the Sessions Judge. However, in view of the fact that the alleged offence had taken place as far back as on 4.10.1993 since when about nine years have passed, it will not be fair and just to direct de novo trial as ordered by the Sessions Judge. Moreover, the offence alleged against the petitioners is only misbranding within the meaning of Section 2(ix)(k) of the Act. Therefore, the direction of the Sessions Judge to remand the case for de novo trial is set aside. For taking this view this Court is guided by the judgment of the Supreme Court in Bal Krishna Pillai and Another v. M/s Matha Medicals and Others, 1991 Cr.L.J. 1961 (SC), where in paragraph 12 of the judgment it has been observed :- "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." 6. The revision petition is disposed in these terms.