HAR SARUP SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON 18.8.1982 the Government Food Inspector inspected the premises of the petitioner who was found in possession of 222 pints of Empire Wishky for public sale. Three pints of this wishky were purchased for analysis and one sample was sent to the Public Analyst. The Public Analyst Haryana, Chandigarh issued a certificate to the effect that sample contained alcoholic strength 72.52o p. against the lable declaration of 75o p. A complaint was thus instituted against the petitioner on 29.9.1984 under Section 16(1) of the Prevention of Food Adulteration Act read with Section 7 of the said Act. The complaint remained pending against the petitioner and respondents No. 2 and 3 till 17.2.1988 then it was dismissed for non-appearance of the complainant and the accused were acquitted.

(2.) THE Government Food Inspector filed a second complaint on the same facts on 19.2.1988 in which the petitioners were summoned. The petitioners assailed the institution of second complaint on the same facts. Sub Divisional Judicial Magistrate, Gohana vide his order date 23.1.1992 Annexure P-3 resolved the controversy and held that second complaint on the same facts and circumstances was maintainable against the accused. Harsarup Singh petitioner filed the present petition under Section 482 of the Code of Criminal Procedure and prayed for quashing the order dated 23.1.1992 vide which the Sub Divisional Judicial Magistrate, Gohana set aside the order of acquittal passed on 17.2.1988 by his predecessor. The petitioner alleged that the Magistrate had no power to entertain the second complaint and the order entertaining the second complaint was illegal void and not sub-stanable in the eyes of law. Once the order of acquittal was passed by the Magistrate either on merit or otherwise the aggrieved party could challenge the same by way of appeal and not by filing a second complaint on the same facts.

(3.) THE learned Counsel for the petitioner contended that the first complaint filed by the Food Inspector remained pending for about four years when it was dismissed in default and the accused were acquitted vide order dated 17.2.1990 Annexure P-1. The second complaint Annexure P-2 was filed on the same facts on 19.2.1988 wherein a request was made that original old file may be tagged with the fresh complaint. Once the petitioner and his co-accused were acquitted they could not be tried for the same offence on the basis of a fresh complaint and the Sub Divisional Judicial Magistrate was not competent to recall or review the order of acquittal by holding that second complaint was competent. In support of his contention the learned Counsel placed reliance on the case of Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 wherein it was observed :-