ROHTASH KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE Food Inspector visited the shop of the petitioner Rolitash Kumar on Aug. 27, 1982 and found in his possession 20 Lts. of cow's milk for sale. A sample of the 'milk was purchased by the Food Inspector which on analysis by the Public Analyst was found to be substandard. Prosecution was launched against the petitioner and the trial Court convicted him under Section 16 (1) (a) of the Prevention of Food Adulteration Act and sentenced him to under go six months' rigorous imprisionment and to pay a fine of Rs. 1000. 00. The appeal filed by the petitioner was heard by the Additional Sessions Judge, Gurgaon. The appellate Court found that the contents of the report of the Public Analyst were not put to the petitioner in his statement under Section 313, Code of Criminal Procedure. It was held that this had caused prejudice to the petitioner. The appeal was, therefore, allowed The conviction and sentence were set aside and the case was remanded to the trial Magistrate to re-examine the petitioner under Section 313, Code of Criminal Procedure, and to decide the case afresh. The petitioner has now challenged the order of the Additional Sessions Judge on the ground that there was no justification to remand the case which will amount to re-trial. It is further contended that by remanding the case the prosecution has been allowed to fill in the lacuna.

(2.) ACCORDING to the learned Additional Sessions Judge the trial was vitiated because the contents of the report of the Public Analyst had not been put to the petitioner in his statement under Section 313 of the Code of Criminal Procedure. This view is unassailable and is supported by a Division Bench judgment of this Court in Municipal Committee, Amritsar v. Om Parkash (1969) 71 Pun LR 793. The question for determination is whether in such circumstances the learned Additional Sessions Judge was justified in remanding the case for re-examination of the petitioner under Section 313, Code of Criminal Procedure. In the case of Om Parkash (supra), the learned Judges observed that ordinarily in such circumstances a retrial would be necessitated. But the same was considered not called for because the proceedings had already gone on for more than3 1/2 years during which period the accused had suffered from suspense. Retrial was, therefore, not considered conducive to justice.

(3.) IN the present case too the petitioner has been facing trial for about 31/2 years. As such in the view expressed in the case of Om Parkash (supra), I find it unjustifiable to require the petitioner to face the trial all over again.