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2015 DIGILAW 648 (RAJ)

State of Rajasthan v. Vishnudutt

2015-03-18

GOPAL KRISHAN VYAS

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JUDGMENT : Gopal Krishan Vyas, J. The instant Criminal Appeal has been filed by the State under Section 378 of the Cr.P.C. against the Judgment dated 12.12.1991 passed in Criminal Appeal No. 73/87 by the Sessions Judge, Jalore. 2. Brief facts of the case are that a criminal case was registered against the respondent under Section 7/16 of the Food Adulteration Act upon the complaint filed by the Food Inspector Ambalal Mathur on 14.12.1984. The learned Civil Judge-cum-Judicial Magistrate, Jalore in Criminal Case No. 180/184 convicted the respondent for offence under Section 7/16 of the Food Adulteration Act and passed the sentence for imprisonment of 6 months with fine of Rs. 1,000/- and in default of payment of fine to further undergo 3 months imprisonment. 3. As per the allegation against the respondent in a search made by the Food Inspector Nanak Singh (PW-1) on 19.7.1984 at about 1.00 P.M. near bus stand the respondent was selling sweet toffees, biscuits and other material in his shop and upon apprehension IK Kg. of high boiled sugar concessionary (Mithi Goliya) was purchased by the Food Inspector upon payment of Rs. 10.50 paisa and obtained receipt Ex. P-2 and Bill Ex. P-3 was also taken by the Food Inspector Nanak Singh. As per the prosecution case, the purchased material was sent to the Public Animalist, Jodhpur for test and as per the report of testing the same were found to be adulterated. The Food Inspector sent all the documents to the Local Health Authority on 20.9.1984 and after considering those documents a sanction for prosecution was granted vide Ex, P-9 against the respondent. 4. Upon receiving the prosecution sanction, the Food Inspector, Ambalal Mathur filed a complaint in the Court of Chief Judicial Magistrate, Jalore. 5. In the trial, after recording statements of PW-l-Nanak Singh, PW-2-Amba Lal, PW-3-Madan La, PW-4-Shanti La, PW-5-P.R. Parihar and PW-6-Jagdish Prasad, statement of respondent were recorded under Section 313 Cr.P.C. in defence. No evidence was produced by the respondent in the trial. 6. The learned Trial Court convicted the respondent for committing offence under Section 7/16 of the Food Adulteration Act and passed the sentence above. 7. Being aggrieved and dissatisfied by the judgment rendered by the Chief Judicial Magistrate, Jalore dated 11.11.1987 in Criminal Case No. 180/84 the respondent preferred an Appeal before the Sessions Judge, Jalore. 6. The learned Trial Court convicted the respondent for committing offence under Section 7/16 of the Food Adulteration Act and passed the sentence above. 7. Being aggrieved and dissatisfied by the judgment rendered by the Chief Judicial Magistrate, Jalore dated 11.11.1987 in Criminal Case No. 180/84 the respondent preferred an Appeal before the Sessions Judge, Jalore. The learned Sessions Judge, Jalore decided the Appeal No. 73/1987 filed by the respondent vide Judgment dated 12.12.1991 whereby the learned Appellate Court set aside the Judgment dated 11.11.1987 passed by the Chief Judicial Magistrate, Jalore in Criminal Case No. 180/84. 8. The State Government preferred S.B. Criminal Leave to Appeal under Sections 378(3) and (1) of Cr.P.C. against the judgment of acquittal passed by the Sessions Judge, Jalore. The Co-ordinate Bench passed an order on 13.11.1992 whereby by application for Leave to Appeal was allowed and thereafter, the Appeal was admitted vide Order dated 30.11.1992. 9. The learned Public Prosecutor submitted that the prosecution has proved its case beyond reasonable doubt for committing offence under Section 7/16 of the Food Adulteration Act, therefore the Chief Judicial Magistrate, Jalore rightly convicted the respondent Vishnu Dutt for alleged offence and passed the sentence for a period of 6 months with a fine of Rs. 1,000/-, but the learned Appellate Court erroneously set aside the judgment rendered by the Trial Court on technical grounds, therefore, the judgment rendered by the Appellate Court deserves to be quashed. 10. The learned Public Prosecutor vehemently argued that on the face of record prosecution established that information given to the respondent vide Ex. P-12 and the same was acknowledged by him vide Ex. P-13, therefore, the finding of the Appellate Court that no compliance of Section 30(2) [S/c. - 13(2)] of the Act has been made deserves to be quashed. 11. It is also argued that all the required formalities prior to launching section against the respondent were undertaken and after obtaining sample e same was sent to the Analyst and after receiving the report, prosecution was launched, therefore, the learned Trial Court accepted the prosecution case so as convict the respondent, but the Appellate Court committed the gross error in not accepting the evidence led by the prosecution, therefore, the judgment of the Appellate Court deserves to be quashed. 12. 12. With regard to the non-compliance of Section 20 of the Food Adulteration Act it is submitted that after transfer of the Food Inspector Nanak Singh (PW-1), the complaint was filed by Ambalal Mathur who was empowered institute the case against the accused because he was holding the post of Food Inspector, therefore, the finding of the Appellate Court with regard to non-compliance of Section 20 of the Food Adulteration Act is not sustainable in law. 13. The learned Public Prosecutor submitted that the judgment rendered by the Appellate Court may kindly be quashed and the judgment of the learned Trial Court may be restored. 14. The learned Counsel appearing on behalf of the respondent first of all submitted that the Appeal itself it not maintainable because there is no provision of Second Appeal in the Cr.P.C., therefore, this Appeal may be dismissed on this [round. It is further submitted that the Sessions Judge, Jalore while deciding the Appeal considered the provisions of the Prevention of Food Adulteration Act and held that whole proceedings initiated and trial conducted against the respondent is in contravention of the provisions of the Act, therefore, the finding given by the Appellate Court to quash the judgment of the learned Trial Court does not enquire any interference. While inviting attention towards Section 20 of the Act it is submitted that as per Section 20 of the Act no prosecution for offence under the Act can be instituted except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order by the Central Government or the State Government, but were in this case, Nanak Singh, Food Inspector was authorised by the State Government to launch prosecution against the petitioner but complaint was filed by Ambalal Mathur, Food Inspector, therefore, the learned Trial Court given finding after taking into consideration the entire facts of the case and relevant provisions of the Act that complaint has not been filed by the person, who was authorised by the State Government under Section of the Act to launch prosecution against the respondent, therefore, the initiation of the proceedings against the respondent was not in accordance with law, therefore, the finding given by the learned Appellate Court in the impugned judgment does not suffer from any illegality. 15. 15. The learned Counsel for the respondent further submits that as per Section 13(2) of the Act, the inquiry report sent by the Public Analyst is required be informed but no information written statement given about the report of the Public Analyst, therefore, while considering the statement of PW-4, P.R. Parihar and perusing the Exs. P-12, P-13 and P-14 the Appellate Court held that prosecution has failed to prove that report of Analyst was served upon the respondent. As per Section 16A of the Act for trial of this case, the learned Trial Court was under obligation to follow the procedure of summary trial but without recording any reason, the trial was conducted as warrant case trial, that too, without recording reasons, therefore, the learned Appellate Court has rightly arrived a with the finding that the trial of the case has wrongly been conducted as warrant case trial, therefore, no interference is called for in this Appeal. 16. After hearing the learned Counsel for the parties, first of all I have perused the finding given by the Appellate Court that trial of the case is conducted as warrant case. In this regard, I have perused the Section 16A of the Act, which reads as under: "16A. Power of Court to try cases summarily. 16. After hearing the learned Counsel for the parties, first of all I have perused the finding given by the Appellate Court that trial of the case is conducted as warrant case. In this regard, I have perused the Section 16A of the Act, which reads as under: "16A. Power of Court to try cases summarily. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (20 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 specifically 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 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 or 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 that 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." 17. In the aforesaid provision it is abundantly clear that above provisions is mandatory in nature, therefore, for all the offences under the Act is required to be tried under the procedure of summary trial by a Judicial Magistrate of First Class specially empowered in this behalf by the State Government, therefore, obviously the finding of the learned Appellate Court with regard to non-compliance of Section 16A of the Act does not suffer from any perversity. I have also considered the argument for non-compliance of Section 13(2) of the Act in which there is a provision that on receipt of the report of the result of the analysis under sub-section (1) to the effect that article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person any, whose name, address and other particulars have been disclosed under Section 14-A forward in which manner as may be such person or persons, as the case may be, informing such person or persons that it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. 18. The learned Appellate Court after due application of mind considered the entire evidence and above provisions and held that prosecution has not proved the fact that copy of the analysis report was served upon the respondent. In view of the above fact, the finding given by the Appellate Court in the judgment impugned with regard to the non-compliance of Section 13(2) of the Act does not suffer from any infirmity or illegality. I have also considered the important fact of the case that Appellate Court in Para No. 8 of the judgment observed that the learned Trial Court did not conduct the summary trial, therefore, it is not proper to remand the case because case was registered against the respondent before 7 years. In my opinion also, if Appellate Court has refused to remand the case for retrial after 7 years pendency of the case, then obviously, after 30 years the incident, it is not proper to remand the case to conduct summary trial. 19. In view of the above, no interference is called for in the judgment impugned in this Appeal filed by the State. Hence, this Appeal is hereby dismissed.