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2001 DIGILAW 696 (BOM)

State of Goa v. Tatu Shetkar & others

2001-08-20

A.S.AGUIAR, P.S.PATANKAR

body2001
Judgment P.S. PATANKAR, J.:---The respondents came to be prosecuted for violating section 2(ia), (m) read with section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the said Act"). They are liable to be punished under section 16 of the said Act and the punishment provided is not less than six months, which may extend to three years. 2. The complaint came to be filed on 4th August, 1994. The prosecution case was explained to the respondents on 26th March, 1996. On 12th January, 1999, an application came to be filed on behalf of the respondents for closure of the prosecution evidence, relying upon the judgment of three Judges' Bench of the Apex Court in the case of (Raj Deo Sharma v. State of Bihar)1, reported in 1999(5) Bom.C.R. (S.C.)1 : A.I.R. 1998 S.C. 3281. The learned Judicial Magistrate First Class, Bicholim, passed the order on 23rd March, 1999, granting the said application. The Criminal Case No. 14/0A/94/A came to be dismissed and the respondents were acquitted. This order is under challenge in this appeal. 3. There is no dispute that nine times adjournments were sought by the appellant, seven times the Court adjourned the matter and once the respondents sought adjournment. This, by itself, cannot justify the order. 4. The learned Public Prosecutor on behalf of the appellant relying upon subsequent three Judges' Bench judgment of the Apex Court in the case of (Raj Deo Sharma (II) v. State of Bihar)2, reported in 2000(5) Bom.C.R. (S.C.)184 : 1999(7) S.C.C. 604 , contended that at least one more year's time ought to have been given for the appellant to conclude the trial. He relied upon the observations in para 15 in support of his case, wherein it has been observed :- "We are, therefore, inclined to include a rider that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal, and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice." 5. It is to be noted in the case of Raj Deo Sharma, A.I.R. 1998 S.C. 3281(cited supra) was decided on 8th October, 1998. The operation thereof came to be suspended in Raj Deo Sharma (II) (cited supra) on 14th May, 1999. Raj. It is to be noted in the case of Raj Deo Sharma, A.I.R. 1998 S.C. 3281(cited supra) was decided on 8th October, 1998. The operation thereof came to be suspended in Raj Deo Sharma (II) (cited supra) on 14th May, 1999. Raj. Deo Sharma (II)'s case came to be decided on 22nd September, 1999. 6. The learned Counsel for the parties first drew our attention to a Division Bench judgment of the Apex Court in the case of ("Common Cause" a registered society through its Director v. Union of India others)3, reported in 1996(4) Bom.C.R. 519 (S.C.) : 1997 Bom.C.R.(Cri) 318 : A.I.R. 1996 S.C. 1619. The Supreme Court was considering about the long pendency of criminal cases before the courts. In certain cases the accused were on bail, while in some cases they were not. The constitutional provision under Article 21 was considered and certain directions were given for expeditious trial and conclusion thereof. Relevant here is direction 2(f), which reads :- "2(f) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases trials have still not commenced, the Criminal Court shall discharge or acquit the accused, as the case may be, and close such cases." But in para 4, it came to be observed :- "4. Directions (1) and (2) made hereinabove shall not apply to cases of offences involving (a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act, or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotic Drugs and Psychotropic Substances Act, (c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquillity; (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice, (k) any other type of offences against the State, (I) offences under the taxing enactments and (m) offences of defamation as defined in section 499 I.P.C." It is clear from para 4 that cases under Food Adulteration Act are not covered. This exclusion of cases came to be extended further by two Judges' Bench judgment of the Apex Court in the case of ("Common Cause, a registered Society through its Director v. Union of India others)4, reported in 1997(1) Bom.C.R. 636 (S.C.) : 1997 Bom.C.R.(Cri) 323 : A.I.R. 1997 S.C. 1539. The Apex Court added cases from (n) to (r), which included matrimonial offences, offences under section 138 of the Negotiable Instruments Act, etc. 7. In this case of Raj Deo Sharma, A.I.R. 1998 S.C. 3281 (cited supra), the accused was prosecuted under the provisions of the Prevention of Corruption Act, 1947. The case was pending for nearly 13 years. The three Judges' Bench of the Apex Court held that certain additional guidelines were necessary to be given. The Bench considering the judgment of the Constitution Bench in the case of (Abdul Rehman Antulay v. R.S. Nayak)5, reported in 1992(1) S.C.C. 225 , gave certain directions. The case was pending for nearly 13 years. The three Judges' Bench of the Apex Court held that certain additional guidelines were necessary to be given. The Bench considering the judgment of the Constitution Bench in the case of (Abdul Rehman Antulay v. R.S. Nayak)5, reported in 1992(1) S.C.C. 225 , gave certain directions. Relevant for our purpose are :- "16(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the Court can proceed to the next step provided by law for the trial of the case. (iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii). (v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in 'Common Cause' v. Union of India, 1996(4) S.C.C. 33 as modified by the same Bench through the order reported in 'Common Cause' a registered Society v. Union of India, 1996(6) S.C.C. 775 ." 8. In Raj Deo Sharma (II) (cited supra) the three Judges' Bench modified its earlier view. It held :- "6. We are inclined to state by way of clarification that the discretion of the courts in granting further time exercisable 'for very exceptional reasons to be recorded and in the interest of justice' as for Direction (iii) above can be imported in respect of Direction (i) as well." Finally, the direction as quoted earlier came to be given. 9. We are inclined to state by way of clarification that the discretion of the courts in granting further time exercisable 'for very exceptional reasons to be recorded and in the interest of justice' as for Direction (iii) above can be imported in respect of Direction (i) as well." Finally, the direction as quoted earlier came to be given. 9. The learned Counsel for the respondent drew our attention to the complaint and the report of the public analyst and contended that they are not sure about the adulteration of the product involved, i.e. chilly powder. However, it is not possible to consider this at this stage as evidence is not led and requires to be appreciated. 10. In view of the above position of law, we feel that the learned Public Prosecutor is right in submitting that at least a year's time ought to have been granted to the prosecution to establish its case. Hence we pass the following order :- (i) The impugned judgment and order is set aside. (ii) The appellant is granted a year's time from the date of receipt of the writ of this Court, to lead complete evidence. (iii) If the respondents file any application and the prosecution is stayed, then the said period would, obviously, be excluded. It is made clear that all defences are open for the respondents. (iv) The appeal is allowed accordingly. Appeal allowed.