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2004 DIGILAW 208 (HP)

Banarsi Dass v. State Of Himachal Pradesh

2004-09-02

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. – 1. This petition is directed against the judgment dated 31.12.1999 passed by learned Sessions Judge, Bilaspur, whereby appeal preferred by the accused against the judgment dated 14.2.1995 passed by learned Sub-Divisional Judicial Magistrate, Ghumarwin convicting and sentencing the petitioner/convict/accused (hereafter referred to as the accused) under Section 16 (1-A) read with Section 7 (1) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) has been dismissed. 2. Brief facts leading to the presentation of this petition are that on 23.12.1989, Food Inspector, I.D. Verina (PW-1) visited the shop of the accused at Village Sihal where the accused had kept 40 kgs. of "Shakar" in a bag for sale. After disclosing his identity PW-1 expressed his intention to take a sample of the "Shakar" and served the accused with a notice of such intention and purchased 600 gms. of "Shakar" as sample on payment of Rs. 3/- as price thereof. The sample was then dealt with in accordance with the Rules and one part of the sample so purchased alongwith Form- 7 was sent to Public Analyst Chandigarh and the remaining two samples were deposited with Local Health Authority. On analysis of the sample by the Public Analyst it was found adulterated because it contained acid coaltar dye of orange shade which is not a permitted coaltar for colour. On receipt of the report Ext. PW-1/L from the Public Analyst, a copy of the report was sent to the accused by the Local Health Authority vide Ext.PW-2/A and also directed PW-1 vide Ext. PW-l/K to place the case papers before the Chief Medical Officer for his perusal and consent to prosecute the accused. The Chief Medical Officer after perusal of the relevant documents gave his written consent Ext. PW-1/N for prosecution of the accused and thereafter PW-1 filed a complaint PW- I/O against the accused. 3. The learned trial Magistrate initially proceeded to try the case as a summons case and put the accusations to the accused and proceeded to record the evidence of the complainant, statement of the accused and his defence. PW-1/N for prosecution of the accused and thereafter PW-1 filed a complaint PW- I/O against the accused. 3. The learned trial Magistrate initially proceeded to try the case as a summons case and put the accusations to the accused and proceeded to record the evidence of the complainant, statement of the accused and his defence. However, at a later stage the complainant brought it to the notice of the trial Court that the offence committed by the accused was punishable with imprisonment which could extend to six years, therefore, the offence is triable as a warrant case and ought to have been tried as a warrant case. Agreeing with the submission, the trial Court framed a charge against the accused under Section 16(l)(a) read with Section 7 (1) of the Act on the basis of the evidence already recorded and relied for the purpose by the complainant. After the framing of the charge complainant was given opportunity to lead evidence but no fresh/further evidence was led and to prove the charge, the complainant relied on the evidence already recorded. The accused however was examined afresh under Section 313 Cr. P. C. and he led fresh defence evidence. On consideration of the evidence on record the learned trial Magistrate convicted the accused under Section 16 (1)(a) read with Section 7 (1) of the Act and sentenced him to undergo rigorous imprisonment of two years and fine of Rs. 2000/- and in default of payment of fine to undergo rigorous imprisonment for six months. 4. Feeling aggrieved by the judgment of the trial Court the accused preferred an appeal in the Court of learned Sessions Judge, Bilaspur who dismissed the appeal by the impugned judgment. Hence, this petition by the aggrieved accused. 5. Since the accused did not put in appearance on 30.7.2003 when this petition was duly notified for final hearing, therefore, the petitioner having failed to avail the opportunity to address arguments the State was heard in the matter and judgment was reserved. Hence, this petition by the aggrieved accused. 5. Since the accused did not put in appearance on 30.7.2003 when this petition was duly notified for final hearing, therefore, the petitioner having failed to avail the opportunity to address arguments the State was heard in the matter and judgment was reserved. However, on a subsequent date before pronouncement of the judgment an application was made for the petitioner to give him an opportunity of being heard in the matter and his application was allowed vide order dated 27.8.2003 and as a consequence the petition came up for final hearing after having been duly notified on 17.8.2004 but again none put in appearance for the petitioner and the matter was adjourned to 20.8.2004 to enable appearance by the accused. The matter finally came up for final hearing on 24.8.2004 when again none appeared for the accused, therefore, arguments on behalf of the State only were heard. Today the learned counsel for the petitioner put in appearance and on his prayer for being heard, he was heard. 6. The impugned conviction has been assailed on the following grounds: (i) that the provisions of Section 244 of Code of Criminal Procedure (hereinafter referred to as "the Code"), were not followed and evidence recorded during trial as a summons case was treated as pre-charge evidence which vitiates the trial; (ii) that despite accused wanting to further cross-examine the prosecution witnesses already examined, the same was not allowed without recording the statement of the accused under Section 281 of the Code. (iii) that the Public Analyst was not produced by the prosecution, therefore, conviction could not be based on his vague report; and (iv) that there was no independent evidence to prove that the "Shakar" sample whereof was seized was meant for human consumption. GROUND (I): 7. Section 244 of the Code provides that where an accused in a warrant case instituted otherwise than on a police report appears or is brought before a Magistrate, the Magistrate shall proceed to record the evidence produced by the prosecution. It is on the basis of such evidence that the Magistrate has to decide whether the accused is to be discharged or a charge is to be framed against him. It is on the basis of such evidence that the Magistrate has to decide whether the accused is to be discharged or a charge is to be framed against him. Thus, the purpose of Section 244 is to bring on record the pre-charge evidence to ascertain whether there are grounds to proceed against the accused and it is so required in the ordinary course of trial of a warrant case instituted otherwise than on a police report. 8. In the case in hand, the trial Court proceeded with the case as a summons case and it was at the stage when the case was ripe for final hearing; that on the oral prayer of the complainant the case was ordered to be tried as a warrant case on the ground that the imprisonment provided for the offence allegedly committed by the accused is more than six months. There is nothing prejudicial to the accused in the course adopted by the trial Court. The conversion of trial of a summons case into a trial as a warrant case is in fact advantageous to the accused and no prejudice is thereby caused to him. Moreover such a course is permissible in law. 9. Section 259 of the Code reads as under: "259. Power of Court to convert summons-cases into warrant-cases: When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interest of justice, the offence should be tried in accordance with the procedure for the trial of a warrant-cases, such Magistrate may proceed to rehear the case in the manner provided by this Code for the trial of warrant- cases and may recall any witness who may have been examined." 10. It is clear on a bare reading of the above provisions that converting a summons case into a warrant case, when the offence is punishable with imprisonment of more than six months and the interest of justice so requires, is legally permissible and a Magistrate has the powers to do so. It is evident from the zimine order dated 18.12.1992 that the accused's counsel has also conceded the request of the complainant for conversion of the trial as a warrant case. 11. It is evident from the zimine order dated 18.12.1992 that the accused's counsel has also conceded the request of the complainant for conversion of the trial as a warrant case. 11. In the case of conversion, the question which will require consideration is as to whether the trial as a warrant case will have to be started de novo or the prosecution for the purpose of Section 244 of the Code and/or for furtherance of the trial can rely on the evidence already recorded when the case was tried as a summons case. The answer to this question is in the last part of Section 259 supra which provides that after converting a summons case into a warrant case, the Magistrate may proceed to rehear the case in the manner provided for trial of a warrant case and "may recall any witness who may have been examined". The expression "may recall any witness who may have been examined" clearly make the evidence already recorded at the trial of the case as a summons case legally useable for the purpose of trial of the case as a warrant case. The Magistrate may however recall any or all of the witnesses already examined during trial as a summons case. This power evidently has been reserved with a view to enable the parties, to request for recalling the witness if so required because of the conversion of the mode of trial. 12. After the mode of trial was converted vide order dated 18.12.1992 the case was listed for pre-charge evidence and PWs were summoned. However, the complainant finally chose not to examine the PWs afresh and relied on the evidence already recorded. Therefore, in conformity with the provisions of Section 259 of the Code the statements of PWs already recorded was considered for the purpose of charge and on the basis of the so recorded statements a charge was framed against the accused. The course adopted being in accordance with the provisions of Section 244 supplemented by the provisions of Section 259 of the Code, cannot be said to be illegal. Therefore, the contention that the trial Court having failed to record the evidence afresh, the conviction is vitiated is devoid of any merit and substance and is thus unsustainable. GROUND NO. (II) : 13. Therefore, the contention that the trial Court having failed to record the evidence afresh, the conviction is vitiated is devoid of any merit and substance and is thus unsustainable. GROUND NO. (II) : 13. It is indisputable that by virtue of the provisions of Sub-Sections (4) and (5) of Section 246 of the Code the accused if he so desires, has a right to further cross- examine any or all of the witnesses examined at the pre-charge stage or for that matter treated to have been examined as pre-charge evidence. The Magistrate is therefore duty bound to recall any or all of such witnesses if the accused desires to further cross-examine them. In case the accused does not want to further cross- examine such witnesses, there is no question of recalling them. 14. The accused after pleading not guilty to the charge on 11.5.1993 submitted that he wanted to further cross examine PWs I.D. Verma and Dila Ram who had already been examined. They were present on 15.6.1993 when because of absence of defence counsel they were not cross-examined for the accused and the case had to be adjourned, for 16.6.1993 when again both the said witnesses were present but were not further cross-examined on the ground that accused did not want to further cross-examine them. Thus, the witnesses sought to be further cross-examined by the accused were voluntarily not so examined by the accused. 15. It is not required in law that statement of the accused about his unwillingness to further cross-examine the witness ought to have been recorded under section 281 of the Code. The Provisions of Section 281 of the Code are meant to record a statement of the accused under Section 311 of the Code and have no application to statements of the nature as in question. 16. In view of the above, the trial Magistrate cannot be said to have committed any illegality as alleged. The contention to the contrary is thus without any merit and substance. GROUND NO. (III): 17. Sub-Section (5) of Section 13 of the Prevention of Food Adulteration Act provides that any document purporting to be a report signed by the Public Analyst may be used as evidence of the facts stated therein in any proceeding under the Act. The contention to the contrary is thus without any merit and substance. GROUND NO. (III): 17. Sub-Section (5) of Section 13 of the Prevention of Food Adulteration Act provides that any document purporting to be a report signed by the Public Analyst may be used as evidence of the facts stated therein in any proceeding under the Act. Thus, by virtue of these provisions a document purporting to be a report signed by the Public Analyst is per se admissible in evidence and it is not necessary to examine the Public Analyst to prove the contents of such report and such a report will hold the ground, unless it is superseded by a certificate signed by the Director of Central Food Laboratory or unless it is found insufficient in date on the basis of which the final opinion has been given by the Public Analyst. 18. It may also be pointed out here that Public Analyst need not state in the report as to how the calculations were made in arriving at the result/opinion. In case the report discloses that tests were performed and the date thereof mentioned in the report is sufficient to support the opinion which is given in the report the case of the prosecution cannot fail on the ground that Public Analyst was not examined as a witness. 19. In Mangaldas Raghavji Ruparel v. State of Maharashtra, A.I.R. 1966 SC 128, the apex Court held as under: "11. As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the Court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case. Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact, that it was not challenged by any of the appellants as inadequate when it was put into evidence. We are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. We are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts. Mr. Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself by someone else. What the report says is "I further certify that I have caused to be analysed the afore-mentioned sample and declare the result of the analysis to be as follows." This would show that -what was done was done under the supervision of the Public Analyst and that should be regarded as quite sufficient." 20. In Dhian Singh v. Municipal Board, Saharanpur and another, A.I.R. 1970 SC 318, the Hon'ble Supreme Court held as under: "7. The only other question canvassed before us is that the report of the analyst could not have afforded a valid basis for founding the conviction as the data on the basis of which the analyst had reached this conclusion is not found in that report or otherwise made available to the court. We are unable to accept this contention as well. It is not correct to say that the report does not contain, the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's case referred to earlier. It is not correct to say that the report does not contain, the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's case referred to earlier. The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur v. Sri Ram, 1963 All LJ 765 = ( AIR 1964 All 270 ) wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954, need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in Section 2 (1) of the Act." 21. In Jagdish Prasad alias Jagdish Prasad Gupta v. The State of West Bengal, AIR 1972 SC 2044 , the Hon'ble Supreme Court held as under: "6. Nextly it has been strenuously urged before us on behalf of the appellant that the report of the Public Analyst is not a complete report in that out of the seven tests that he had to make under A 17.06 of Appendix B to the Rules he had only made three tests and secondly the report does not give the basis on which the Public Analyst came to be conclusion that the sample of the mustard oil was adulterated. It is true that the Public Analyst in his report has only indicated the result of the three test out of which two tests were as indicated in A 17.06 while only one, namely, the saponification test was said to have exceeded the maximum on the strength of which the Public Analyst reported that the sample was adulterated. Omission to report on the other four tests does not, in our view, make the report ineffective or the report inconclusive. Even assuming that the other four tests are normal, if the saponification test alone did not conform to the standards indicated in A 17.06 of Appendix B to the Rules the sample cannot be said to have cone up to the standard and, therefore, it is adulterated." 22. Even assuming that the other four tests are normal, if the saponification test alone did not conform to the standards indicated in A 17.06 of Appendix B to the Rules the sample cannot be said to have cone up to the standard and, therefore, it is adulterated." 22. In the case in hand the Public Analyst was not examined by the Prosecution nor he was so required to be examined in view of the provisions of Sub-Section (5) of Section 13 of the Act. The report of the Public Analyst Ext.PW-1 /L clearly specifies that the Public Analyst caused the sample to be analysed and has given the result of such analysis and has specifically mentioned that on paper Chromatography unpermitted acid coaltar dye of orange shade was found in the sample and has opined that the acid coaltar dye of orange shade is not a permitted coaltar food colour and addition of any artificial colouring matter to "Shakar" is not permitted under the provisions of Prevention of Food Adulteration Rules, 1955. Thus, as per this opinion the "Shakar" did not conform to the prescribed standard and this being so was adulterated. 23. In view of the above position in law and facts the contention that the report Ext. PW-1/L could not be made basis for the conviction of the accused for want of requisite data and examination of the Public Analyst is also unsustainable. GROUND NO. (IV): 24. Be it stated here that this petition is against the concurrent findings of the courts below. It is well settled that in exercise of revisional jurisdiction, the High Court despite wide powers, shall interfere only in such exceptional cases where there is manifest error on point of law or glaring defect in the procedure leading to grave miscarriage of justice. Thus, the discretionary revisional powers are to be exercised to undo the injustice. The law in this regard is well settled. 25. In Jaswant Rai and others v. State of HP (2000 CRI. L.J. 1970), this Court while dealing with the scope of revisional powers of the High Court under the provisions of Criminal Procedure Code, held as under: "9. Thus, the discretionary revisional powers are to be exercised to undo the injustice. The law in this regard is well settled. 25. In Jaswant Rai and others v. State of HP (2000 CRI. L.J. 1970), this Court while dealing with the scope of revisional powers of the High Court under the provisions of Criminal Procedure Code, held as under: "9. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation this Court has to necessarily examine the matter keeping in view the well-settled proposition of law that though the revisional powers of this Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Courts are not to be disturbed." 26. In Ramesh Kumar v. State of H.P. (2000 (2) S.L.J. 1401), this Court reaffirmed the above view and held as follows: "5. Be it stated at the very outset that revisional powers of this Court are discretionary and are normally to be exercised only in exceptional cases when there is any glaring defect in the procedure or a manifest error on a point of law leading to grave miscarriage of justice. The powers of revision are to be exercised only for correcting the injustice and not mere irregularity which does not go to the root of the case. Merely because a view other than the one taken by the Courts is possible, the findings recorded by such Court are not be interfered with. (See Criminal Revision No. 7.8/1999 Vimal Kishore v. D.D. Gautani and another decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 27. (See Criminal Revision No. 7.8/1999 Vimal Kishore v. D.D. Gautani and another decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 27. The aforesaid position in law was again reaffirmed in Ram Pal v. State of HP (Cr. Revision No. 42/2000 decided on 25.8.2004) and Gopal Singh v. State of H.P. (Cr. Revision No. 157 of 2000 decided on 1.9.2004). 28. It is in view of the above settled position in law that this petition has to be considered and decided. 29. There is no law for the proposition that the testimony of official witnesses must invariably be disbelieved and cannot be acted upon to sustain a conviction. Taking of the sample of "Shakar" by PW-1 from the accused is not disputed. There is no dispute that the sample so taken was dealt with in accordance with law. The grievance of the petitioner is that there is no independent evidence to prove that "Shakar" was displayed by the accused for sale for human consumption. It is not his proved case that there was any indication in the form of a Notice Board or the like that the "Shakar" displayed in the shop was not meant for human consumption or was only for being used as a feed for animals. Whether the "Shakar" was displayed by the accused for human consumption or not is a pure and simple question of fact, the concurrent findings of facts recorded by both the Course below on this count are that the "Shakar" in question was meant for sale for human consumption. The conclusions arrived at by them in this regard are supportable on the basis of the evidence on record and as already stated hereinabove such findings are not required to be interfered with in exercise of the Revisional powers of this Court unless it is shown that a failure of justice has thereby been caused. On the basis of the material on record and the reasons assigned by the Courts below in negativing the contention that the "Shakar" was meant for animal consumption and not for human consumption it cannot be said that the evidence has been perversely appreciated by the Courts below which has resulted in gross miscarriage of justice. Thus, this ground as urged for the accused also does not hold good. 30. Thus, this ground as urged for the accused also does not hold good. 30. The perusal of the record reveals that the conclusions arrived at by the Court below which led to the impugned conviction and sentence are supportable on the basis of the evidence on record, therefore, the impugned conviction and sentence does not call for any interference by this Court. 31. As a result, this petition merits dismissal and is accordingly dismissed. The accused through his counsel is directed to surrender to his bail bonds and appear before the trial Court on or before 4.10.2004 and on such appearance the trial Court will commit him to the prison to serve out the sentence awarded to him.