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2003 DIGILAW 1643 (PNJ)

Bagga Singh v. State of Haryana

2003-12-06

JASBIR SINGH

body2003
JUDGMENT Jasbir Singh, J. - Vide order dated 31.10.1990, petitioner was found guilty, convicted and sentenced for a period of six months and to pay a fine of Rs. 1,000/- for an offence punishable under Section 16(1)(a)(i) and ordered to pay a fine of Rs. 50/- for committing an offence punishable under Section 16(1)(a)(ii) read with Section 7 of Prevention of Food Adulteration Act, 1954 (in short the Act). 2. It is essential to mention here that sample of milk was drawn by the competent officer on 31.8.1983. Sample was sent for chemical examination. Vide report Ex. PE. it was found to be adulterated as the milk solids not fat was deficient by 6% of the minimum prescribed standards. On filing of complaint, trial Magistrate ordered that the trial be commenced treating it as a warrant case. After recording necessary evidence, trial court, vide order dated 12.8.1985, found him guilty, convicted and contented him accordingly. He went in appeal, which was allowed and the matter was sent for retrial. His revision petition was dismissed by the High Court. On retrial, he was again found guilty, convicted and sentenced as found mentioned in para 1 of this order. 3. He went in appeal. Appellate court below, vide order dated 30.7.1991, allowed his appeal, sent the matter for re-trial, by opining that the complaint was required to be tried by treating it as summons case in summery manner. However, since it was tried as warrant case, procedure adopted was not justified. Accordingly, conviction and sentence was set aside and the matter was sent for re-trial. Hence, this revision petition. 4. Counsel for the parties heard. This Court feels that the opinion arrived at by the appellate Court below was not correct. However, since it was tried as warrant case, procedure adopted was not justified. Accordingly, conviction and sentence was set aside and the matter was sent for re-trial. Hence, this revision petition. 4. Counsel for the parties heard. This Court feels that the opinion arrived at by the appellate Court below was not correct. Section 16A 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 Sections 262 to 265 (both inclusive) of the said Code shall, as far as may been, 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 recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." 5. A reading of the above provisions clearly indicates that, if at the commencemnt of the trial or during trial, 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 may after hearing the parties, record an order to that effect. 6. It is apparent from the record that in this case, earlier also, the matter came before the appellate court below and it was remitted back with a direction that the trial be proceeded in a summary manner. 6. It is apparent from the record that in this case, earlier also, the matter came before the appellate court below and it was remitted back with a direction that the trial be proceeded in a summary manner. Trial Magistrate, vide order dated 16.5.1986, passed the following order:- "This case has been remanded to this court back by the learned appellate court by order dated 2.1.1986 with the direction that it shall be tried in a summary manner as provided under section 16(A) of the Act, 1954. The charge has already been framed against the accused on 1.6.84. Now entire evidence of the prosecution be summoned for 7.8.1986." 7. However, during proceedings of the trial, Trial Magistrate chosen to pass order dated 13.9.1986, which reads as under :- "Accused has given his statement requesting and praying that he be not tried summarily but his case be tried as a warrant case. Ld. G.F.I. has also no objection. In my opinion, as well, in the facts and circumstances of the case, when the accused can be sentenced for imprisonment for a period more than one year, it is not desirable that the case be tried summarily. Accordingly I hereby order that the case be tried as a warrant case. Let pre- charge evidence be recorded." 8. Order passed by the Trial Magistrate, referred to above, dated 13.9.1986, was perfectly justified. However, appellate court below, by taking a technical view of the entire matter, allowed the appeal filed by the petitioner, set aside the order of conviction and ordered the matter to be retried. This Court feels that in view of provisions of Section 16-A of the Act, order of the Magistrate was legal and the appellate court below had gone wrong while upsetting the same on this ground alone. Under these circumstances, no option is left except to set aside the order passed by the appellate court below and refer the matter to the appellate court below to decide it no merits. 9. At this stage, Shri Lakhanpal, has argued that by asking the appellate court below to hear the appeal again, it will cause further mental agony and financial loss to the petitioner. Occurrence is 20 years old. Petitioner was not a previous convict and after his conviction in this case, he had disciplined himself and now residing in a very peaceful manner. Occurrence is 20 years old. Petitioner was not a previous convict and after his conviction in this case, he had disciplined himself and now residing in a very peaceful manner. Counsel further contended that even on merits, order passed by the trial court was not justified. He brought to the notice of this Court that as per chemical examiners report Ex. PE (copy of the same was supplied to the court at the time of arguments), milk fat was found to be 5.4% and milk solids not fat was found to be 8.0%. By showing this fact, he contended that the milk fat was more than the required standards, only there was a small deficiency so far as the milk solids not fat was concerned. He placed reliance upon two judgments of this Court in Hans Raj v. State of Haryana, 2000(1) RCR(Crl.) 743 and Om Parkash v. State of Haryana, 2000(1) RCR(Crl.) 127 to state that in such like situation, conviction and sentence awarded to the petitioner was not justified. He prayed that order passed by the trial court be also set aside, as he has laid challenge to the same in this revision petition also. 10. Mr. Amol Rattan Singh, AAG Haryana, appearing for the State has opposed this prayer of the counsel but he has failed to show anything that the averments made by the counsel for the petitioner are not justified. 11. It is apparent from the record that the matter is 20 years old and as per chemical examiners report, deficiency was found only of milk solids not fat and not fat, milk fat was found to be more than the required standard. A Single Bench of this Court in Hans Rajs case (supra), in paras 8 and 12 opined as under:- "8. Unindicated milk has to conform to the standards of buffalo milk. In Haryana, buffalo milk should contain 6% milk fat content and 9.1% milk solids not fat content while cow milk should contain milk fat content to the extent of 4.0% and milk solids not fat content to the extent of 8.5%. It was quite apparent that the sample milk was not conforming to the standards of purity as laid down in the Prevention of Food Adulteration Rules, 1955 so far as milk solids not fat content was concerned if we take it to be buffalo milk. It was quite apparent that the sample milk was not conforming to the standards of purity as laid down in the Prevention of Food Adulteration Rules, 1955 so far as milk solids not fat content was concerned if we take it to be buffalo milk. The Public Analyst found milk fat content to the extent of 8.4% in the sample milk. He found milk solids not fat content to the extent of 8.6%. He found the sample milk to be deficient in milk solids not fat content to the extent of 4% of the minimum prescribed standard. Director, Central Food Laboratory found milk fat content to the extent of 10.6% and he found milk solids not fat content to the extent of 7.8% in the sample milk. He found the sample milk deficient in milk solids not fat content being below the minimum prescribed limit. Assuming that it was cow milk it was not conforming to the milk solids not fat content as per the report of Director, Central Food Laboratory." 12. In this case, thus, no inference can be drawn that milk had been adultered with water. Presence of much higher percentage of milk fat content in the milk and little deficiency in milk solids not fat content will suggest that there was either improper sampling by the Food Inspector or imperfect analysis of the sample but not that there had been addition of water to the milk." To the same effect is the ratio of judgment of a Single Bench of this Court in Om Parkashs case (supra). This Court, in Subhash Chand v. The State of Haryana, 1989(1) Recent Criminal Reports 602, in a case where conviction and sentence of the petitioner therein, was set aside on technical grounds, chosen not to send the case for re-trial in view of the fact that matter was pending before the courts for the last about 10 years. In that case, it was observed as under :- "The petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/- in default of payment of fine the petitioner was to undergo rigorous imprisonment for one month. The petitioners appeal was dismissed on 29.7.1985 and he could be released on bail vide order dated 8.8.1985. 1,000/- in default of payment of fine the petitioner was to undergo rigorous imprisonment for one month. The petitioners appeal was dismissed on 29.7.1985 and he could be released on bail vide order dated 8.8.1985. From the date of taking of sample more than ten years have elapsed. Harassment and strain of this period is sufficient for quashing the proceedings in this case. This leads me to hold that the petitioner has undergone sufficient harassment and strain. This petition is accepted and the conviction and sentence are set aside." 13. Similarly, in State of Haryana v. Ram Kishan, 2003(3) RCR(Crl.) 201 this Court opined as under :- "For the above reasons, the view taken by the trial Court is held to be erroneous. However, having regard to the fact that occurrence is of the year 1985, when the accused was 64 years of age, it is not necessary to reverse the acquittal of the respondent. Learned counsel for the State has very fairly stated that the State was interested only in clarification of the law on the point even if acquittal is not reversed in this particular case at this discussion of time. Appeal is disposed of accordingly." 14. After hearing counsel for the parties, this Court is convinced that even if, matter is sent back for decision by the appellate court below in view of ratio of judgments referred to above, it will only be a futile exercise. It is apparent from the record that deficiency was found only in milk solids not fat whereas milk fat was more than the required standard. Petitioner had been undergoing the agony of protracted trial for the last about 20 years, which, this court feels, was a sufficient punishment to him. Accordingly, revision petition is allowed and the petitioner is acquitted of the charges framed against him. Revision allowed.