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2003 DIGILAW 1052 (PNJ)

State of Haryana v. Chaju Ram

2003-07-30

JASBIR SINGH

body2003
JUDGMENT Jasbir Singh, J. (Oral) - The State has filed his appeal against the judgment dated January 02, 1991 vide which respondent-Chaju Ram was acquitted of the charges framed against him. 2. Brief facts of the case are that on November 12, 1986, Food Inspector visited the shop of respondent and found him in possession of 7 packets of Namkeen Bhujia which were meant for public sale. The Food Inspector purchased 900 grams of Namkeen Bhujia against payment. He divided the same into three parts. It was put in three bottles which were labelled and sealed as per the rules. After completing the formalities, he sent one sealed bottle of sample to Public Analyst, Haryana, Chandigarh along with Form No. VII while the other two samples were handed over to Local Health Authority on that very date. On receipt of report of the Public Analyst, it was found that the sample was coloured with unpermitted matanil yellow coaltar dye. Then a complaint was filed against the respondent and he was asked to stand trial for contravention of the provisions of Section 7 read with Section 3 of the Prevention of Food Adulteration Act, 1954 (for short, the Act). On March 4, 1987, trial Court passed the following order :- "Accused has appeared. He has moved an application for bail. Heard. Pending trial, the accused admitted to bail in the sum of Rs. 5000/- with one surety in the like amount. Bail bonds furnished and accepted. Certified that punishment in this case, in case of conviction is likely to exceed one year. The accused has also desired that it be tried as a warrant case. Therefore, I order that this case be tried as a warrant case. Now to come up on 15.7.1987 for pre-charge evidence. Long date due to heavy pending files." 3. The trial Court proceeded with the trial as a warrant case. Pre-charge evidence was recorded, respondent was charged accordingly, to which he pleaded not guilty and claimed trial. Thereafter, evidence of the prosecution was recorded. The trial Court in the meantime noticed a fact that the trial had started as a warrant case from the very beginning which as per the trial Magistrate, was not a proper procedure adopted in this case. Thereafter, evidence of the prosecution was recorded. The trial Court in the meantime noticed a fact that the trial had started as a warrant case from the very beginning which as per the trial Magistrate, was not a proper procedure adopted in this case. The trial Court, keeping in view this fact, gave the respondent benefit of that technical defect and he was acquitted vide judgment which is under challenge in this appeal. 4. Mr. G.P.S. Nagra, learned Assistant Advocate General appearing for the State has vehemently contended that the trial Court, while passing the order under challenge, has failed to appreciate the provisions of Section 16-A of the Act, empowering the trial Court in commencing the trial as a warrant case. In that regard, he also referred to the order dated March 04, 1987, wherein even respondent desired that the case be tried as a warrant case. Shri Nagra, thus, contended that the trial Court by passing the impugned judgment had failed to notice the order passed earlier on March 04, 1987. He prayed that the appeal be allowed. 5. The prayer of the State counsel has vehemently been opposed by Shri Vermani appearing for the respondent. While relying upon the judgment of Full Bench of this Court in Budh Ram (Deceased) v. State of Haryana, 1985(1) Recent Criminal Reports 510 (P&H), Shri Vermani contended that it was incumbent upon the trial Court, in the first instance, to start the trial in a summary manner and since the trial Court failed to do so, the entire trial was vitiated and the respondent had rightly been acquitted by the trial Court. To support his contention, he has further relied upon a single Bench judgment of this Court in Brij Pal v. State of Haryana, 1989(1) C.L.R. 568 and contended that the appeal has no substance. He, therefore, prayed that the same be dismissed. 6. After hearing learned counsel for the parties and with their assistance having perused the record, this Court finds no force in the conclusion arrived at by the trial Court to the effect that since the trial was commenced as a warrant case, it was a wrong procedure adopted, thus, the trial was vitiated. 6. After hearing learned counsel for the parties and with their assistance having perused the record, this Court finds no force in the conclusion arrived at by the trial Court to the effect that since the trial was commenced as a warrant case, it was a wrong procedure adopted, thus, the trial was vitiated. The trial Court while passing the impugned judgment has failed to take note of the order passed by the Court on March 04, 1987 wherein it had specifically been mentioned that the punishment in this case was likely to exceed none year. Furthermore, the respondent himself had desired that the case be tried as a warrant case and accordingly it was ordered that the case be tried as a warrant case. Section 16-A of the Act reads as under :- "16-A. Power of court to try cases summarily :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 : Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year : Provided further that when at the commencement of, or in the course of, a summary trial under this Section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter call any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." A bare reading of above provisions indicates that it is incumbent upon the trial Court in any trial initiated under the Act to start the trial in a summary manner. However, second proviso to the Section makes it very clear that the trial Magistrate is empowered to initiate the trial as a warrant case after complying with the conditions as mentioned in that proviso. The trial Magistrate has to record a finding that the nature of the case is such that sentence of imprisonment for a term exceeding one year may have to be passed in the trial. The trial Magistrate may also for any other reason, order that it would be undesirable to try the case in a summary manner. To arrive at that conclusion, the only condition to be complied with is that the trial Magistrate is supposed to give hearing to the parties and record an order in that regard. 8. In the present case, order dated March 04, 1987 was passed, respondent was heard and he himself desired that he trial be proceeded as a warrant case. The trial Magistrate while passing the order under challenge probably had failed to notice this order passed by the trial Court at an earlier point of time. Even the reliance placed by Shri Vermani on judgment of the Full Bench of this Court in Budh Rams case (supra), is also of no help to the respondent. In paragraph 58 of that judgment, it was observed as under :- "From the above, it is quite clear that the Legislature intended that all offences under Section 16(1) of the Act be tried summarily by specially authorised Magistrates, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Penal Code. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. So unless they are specially so empowered the question of their holding summary trial would not arise. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. So unless they are specially so empowered the question of their holding summary trial would not arise. However, once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other and they shall have to try every offence under Section 16(1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result of summary trial, then in that case after passing such an order in writing, would be entitled to try such offenders in accordance with the procedure prescribed by the Code for he given offence." 9. The ratio of the above mentioned judgment clearly indicates that the trial Magistrate, after complying with the provision of second proviso to Section 16-A of the Act, can proceed with the trial as a warrant case. In view of that, Shri Vermani cannot derive any benefit from the judgment referred to above. 10. From the above discussion, it seems that the trial Court while acquitting the respondent had failed to notice the order dated March 04, 1987 and so gave a wrong finding that a proper procedure had not been adopted in this case. No doubt, the reasoning given by the trial court is not correct, but this court feels that at this stage, it will not be proper to remand this case for re- trial. 11. It is evident from the record that the trial was commenced in the month of January, 1987. It was allegation against the respondent that in the offending substance i.e. Namkeen Bhujia, unpermitted matanil yellow coaltar dye was used. From 1987 till 1st of 1991, respondent had been facing the agony of trial. This appeal was admitted by this Court in the month of July, 1991 and since then it is pending. In this way, the respondent had remained under constant fear in his mind that one day or the other he was likely to be sent behind the bars. 12. In view of the facts and circumstances of the case, the offence committed seems to be not very serious. In this way, the respondent had remained under constant fear in his mind that one day or the other he was likely to be sent behind the bars. 12. In view of the facts and circumstances of the case, the offence committed seems to be not very serious. As such, this court is of the opinion that in the situation, as it exists in this case, it will not be desirable to remand the case and send the respondent for retrial after such a long time. The trial Court, on the basis of some wrong appreciation of the circumstances, has chosen to acquit him for no fault of the respondent. Definitely prejudice will be caused to the respondent if at this stage, he is again sent for retrial. 13. Keeping in view the facts and circumstances of the case mentioned above, this appeal fails and is dismissed accordingly. Appeal dismissed.