M/S. PRAG VANASPATI PRODUCTS AND ANOTHER Vs. IIIRD ADDL. DISTRICT AND SESSIONS JUDGE, FARRUKHABAD AND OTHERS

JUDGEMENT

(1.) THIS is a review/recall/modification application of the order dated 8.12.93 passed in Civil Misc. Writ Petition No. 43272 of 1993 on the grounds: (1) that the Prevention of Food Adulteration Act, is a special enactment having special procedure and it is precise and exact in respect of fulfillment of the particular object which will override the general provisions; (2) that a right decision by a wrong forum is nullity and is no decision in law, e.g. if any matter to be decided by a Division Bench is decided by a Single Judge, then the decision of the Single Judge would be without jurisdiction; (3) that where it is established that the litigation is sham, illusory, collusive and inspired by nefarious and vexatious design, Courts not only have jurisdiction but owe a duty to throttle such litigation at the threshold, and lastly (4) that the Magistrate has violated the statutory provisions of Sec. 16A of the Prevention of Food Adulteration Act in -as -much as he straightway proceeded with the case as a warrant instead of summary trial. Since all the grounds urged by the learned counsel for the petitioners are interconnected and resolve round the question of violation of the provisions of Sec. 16A of the Act, they are being taken up together rather dealing with them separately. His contention is that the provisions of Sec. 16A of the Act provide that hot -with -standing anything in the Code of Criminal Procedure, 1973 all offences under Sub -section (1) of Section 16 of the Act shall be tried in a summary way by a Judicial Magistrate the first class specifically empowered in this behalf by the State Government or by a Metropolitan Magistrate and if 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 as 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, then the Magistrate shall after hearing the parties record an order to that affect 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 whereas in the present case rather resorting to that procedure contained in Sec. 16A the learned Magistrate has straight -way proceeded with the case as a warrant trial and hence the entire proceedings being in violation of the statutory provisions of Sec. 16A of the Act are without jurisdiction and nullity and liable to be quashed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. In support of that contention he relied upon the following decisions: -

(2.) ALL the above three decisions are based on the ratio of decision of the Full Bench of Punjab and Haryana High Court in the case Budhram v. State of Haryana, 1984 E.F.R. 558.

(3.) IN the present case the petitioner has neither alleged in the writ petition nor has he stated at any stage that the Magistrate who is seized with the case was specially empowered to try the case in a summary way under Sec. 16A of the Act nor any copy of the order sheet has been filed to show that at what stage of the proceedings the Magistrate has decided to proceed with the case as a warrant trial. I do not dispute the ratio of decision laid down by the Full Bench of Punjab & Haryana High Court in the case of Budhram (Supra) but unless the above facts are established, no benefit of that decision can be extended to the petitioners.