MAHINDER SINGH YADAV Vs. STATE OF HARYANA

JUDGEMENT

(1.) HEARD . On 11-11-1982, Shri Balwan Singh invested with the powers of the Food Inspector and Dr. J. Chanda took samples of unindicated milk from a container having 10 liters of milk from the shop of Mahinder Singh, located at Jhajjar. The sample of milk was found to be deficient by 30% in milk fat and 1% in milk solids not fat by the Public Analyst vide his report Exhibit PD, which resulted in launching the prosecution against the petitioner on 27-1-1983. The petitioner pleaded guilty to the charge on 11-10-1984, which resulted in his conviction and sentence. On appeal, however, the learned Additional Sessions Judge vide his order dated 5.10.1985 remanded the case back for retrial by holding that the accused had not voluntarily pleaded guilty to the charge. The trial court after holding trial again convicted the petitioner of the charge punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act') vide its judgment dated 11.12.1987 and awarded six months rigorous imprisonment besides imposing a fine of Rs. 1,000/- and in default of payment thereof, to further suffer three months rigorous imprisonment. Feeling aggrieved against that order, the petitioner again when in appeal which was accepted by the learned Additional Sessions Judge, Rohtak, vide his judgment dated 1-2-1989 and the case was remanded for retrial on the ground that since the evidence of DW1 Shri R.C. Chopra was not completed, it has resulted in vitiating the trial. Aggrieved against that order the petitioner has come up before this Court on the revisional side.

(2.) THE grouse of the petitioner mainly is that he having suffered agony and pangs of the pendency of the trial of this case for a period of more than six years, the appellate court should not have remanded the case for retrial. The other grouse of the petitioner pertains to the illegality of trying this case as a warrant case by the trial court and not in a summary manner as provided under Section 16A of the Act.

(3.) A bare glance through the above referred provisions of Section 16A of the Act leaves no doubt that the cases under Section 16(1) of this Act shall be tried in a summary manner by the Judicial Magistrate 1st Class unless during the pendency of the trial the Magistrate feels that under the circumstances of the case, a sentence of more than one year is warranted. In that contingency, the Magistrate had to record an order to that effect and thereafter start trying the case as a warrant case. In the case in hand, the trial court has not recorded any such order of trying this case as a warrant case. On the other hand, the perusal of the trial Court file reveals that the case was tried as a warrant case because a regular charge was framed and the plea of the accused petitioner was recorded. Thus in view of the ratio of the judgment of the Full Bench of this Court in Budh Ram and another v. State of Haryana, 1984 (II) Prevention of Food Adulteration Cases 179, the trial stands vitiated on this score alone. No doubt, the accused had not taken any such objection before the first appellate Court, yet all the same the trying of a case under Section 16(1)(a)(i) of the Act as a warrant case being an illegality, it cannot be said that as no prejudice has been caused to the accused for trying the case, as a warrant case, the trial is not vitiated.