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2006 DIGILAW 1130 (MP)

Vijay Kumar v. State of M. P.

2006-09-21

RAKESH SAKSENA

body2006
ORDER 1. This revision has been filed against the order dated 15.1.1998 passed by II Additional Sessions Judge, Jabalpur, in Criminal Appeal No. 29/94, preferred against the judgment dated 4.3.1994, passed by the Judicial Magistrate, 1st Class, Jabalpur, in Criminal Case No. 2726/1990. 2. In short, the prosecution case is that Food Inspector K.K. Shukla, on 3.3.1984 took a sample of 'Heeng' from the applicants on suspicion of it's being adulterated. After dividing it into three equal parts and following the procedure, he sent the sample to Public Analyst for analysis. On analysis, the Public Analyst found the sample of 'Heeng' to be adulterated, vide his report Ex. P-6. This report was sent to Local Health Authority, who after obtaining the requisite sanction, filed a complaint against the applicants in the Court of Magistrate, on the accusation of the offence under section 7 (1) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act. After recording the evidence, learned Magistrate found the applicants guilty of the offence and convicted them for the aforesaid offence. Applicant Gulab Chand Vijay Kumar was sentenced to a fine of Rs. 1,000/- and rest of other applicants were sentenced to rigorous imprisonment for 6 months with fine of Rs. 1,000/- each. On appeal, learned II Additional Sessions Judge, on the basis of evidence of Food Inspector found that the copy of the report of the analysis was said to have been sent by the Local Health Authority to the applicants (Vendors) along with noticed (Ex. P-11, P-12, P-13 and P-14) in Form No. 10, in compliance of the provisions of section 13(2) of the Prevention Food Adulteration Act. Food Inspector, K.K. Shukla, in his statement deposed that the said notices along with the report were sent by the Local Health Authority by post, but, in statement under section 313 of CrPC, applicants denied of having received any notice or report from the Local Health Authority according to the provisions of 13 (2) of the Prevention of Food Adulteration Act. 3. Considering the above circumstances, learned Appellate Court found that though it was deposed by the Food Inspector that the report of the Public Analyst was sent to applicants by post, but, the postal receipts and the register of the office of Local Health Authority were not proved by the prosecution according to law. 3. Considering the above circumstances, learned Appellate Court found that though it was deposed by the Food Inspector that the report of the Public Analyst was sent to applicants by post, but, the postal receipts and the register of the office of Local Health Authority were not proved by the prosecution according to law. In view of that, learned Appellate Court set aside the order of conviction and sentence passed by the learned Magistrate and remanded the case to the trial Court for recording fresh evidence in respect of the evidence of service of analyst's report and the notices on the applicants by the Local Health Authority by proving the relevant postal receipts and the register or other records of the office of Public Analyst, according to law. 4. Learned counsel for the applicant submits that after so many years, it would not be in the interest of justice to record the evidence of the prosecution witness afresh in respect of the proof of the notices and service of the report of the Public Analyst on the applicants. He submits that learned Appellate Court has committed il1egality in remanding the case for taking fresh evidence in order to fill up the lacuna found in the prosecution case. He placed reliance on the decision of this Court in Manohar Singh v. State of M.P. [1997 (II) MPWN 129] wherein under similar circumstances it was held that when accused had suffered agony of the trial for 14 years, case should be dropped instead of remanding it for taking fresh evidence. 5. Taking into consideration the above cited legal proposition in the context of the facts and circumstances of the present case, I am of the opinion that this revision deserves to be allowed. It was duty of the prosecution to produce all the requisite evidence before the Court and to prove it's case according to law. When prosecution failed to prove and tender the documents before the Court, it ought not to have given opportunity to fill up the lacunae in the prosecution case by remanding the case for producing fresh evidence. It was duty of the prosecution to produce all the requisite evidence before the Court and to prove it's case according to law. When prosecution failed to prove and tender the documents before the Court, it ought not to have given opportunity to fill up the lacunae in the prosecution case by remanding the case for producing fresh evidence. Be that as it may, in view of the fact that the sample was taken on 3.3.1984, i.e. About 22 years back from today and the judgment of the appellant Court was pronounced on 15.1.1998, it appears that the applicants have suffered sufficient harassment and mental agony during the long period of 22 years from the date of taking sample. Therefore, I am of the opinion that it will serve no useful purpose in remanding the case again to the trial Court for taking fresh evidence for proving the postal receipts and despatch register of the office of Local Health Authority especially in view of the right of accused for expeditious trial. 6. Consequently, this revision is allowed. Impugned order of the IInd. Additional Sessions Judge, Jabalpur, with regard to remanding of the case is set aside. Since the appellate Court has already set aside the order of conviction and sentence of the applicants, the applicants stand acquitted.