LILA KISHAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON 23rd of September, 1985, at 10 p.m., at Parkash Adda, Sonepat, Shri A.R. Nehra, Government Food Inspector, had taken sample of Atta from the petitioner contained in a gunny bag for public sale at his shop and when the sample was anlaysed by the Public Analyst, it was reported to contain nine living weevils, five living meal worms and one living spider and, therefore, on that ground it was found to be not fit for human consumption. The complaint against the petitioner was filed before Shri B.K. Aggarwal, Additional Chief Judicial Magistrate, Sonepat. In exercise of the right to get the other sample analysed under Section 13(2) of the Prevention of Food Adulteration Act, from the Central Food Laboratory, Ghaziabad, an application was filed and the sample was sent to that Laboratory. Report received from the Laboratory indicated that alcohol acidity was above the maximum prescribed limit and, therefore, the sample did not conform to the standard of Atta laid down in item A.18.01 of the Prevention of Food Adulteration Rules, 1955. It was also reported that the sample showed live and dead insects. The case was posted for pre-charge evidence and when it was concluded, case was put for examination of the accused and he was thus examined under Section 313 of the Code of Criminal Procedure and thereafter it was adjourned for defence evidence and arguments.

(2.) IT so happened that at that stage, Shri B.R. Aggarwal, Additional Chief Judicial Magistrate, was transferred and Shri D.R. Yadav came as his successor and finding that neither charge had been framed nor any notice had been given to the petitioner, he directed on 19th of May, 1987, to give a notice to the petitioner and actually notice was given and the petitioner pleaded guilty of the charge. At that stage, Government Food Inspector gave a statement that he did not want to lead any fresh evidence and the evidence already recorded be read for the prosecution. Counsel for the petitioner also made a statement that the statement of the accused already recorded under Section 313 of the Code of Criminal Procedure be adopted and that the petitioner has no objection if the evidence already led by the prosecution was read against him. The same day Shri D.R. Yadav convicted the accused-petitioner under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months.

(3.) THIS section clearly lays down that ordinarily evidence recorded by a Magistrate during trial can be used by a Magistrate who succeeds the Magistrate who recorded the evidence but sub-section (3) thereof is an exception which lays down that so far as summary trials are concerned, evidence recorded by a predecessor cannot be used by successor. Relying upon this princple as also on a judgment in Ram Dass Kilu Nein v. V.M. Muddayya and others, 1978 Criminal Law Journal 1043, the Additional Sessions Judge held that the conviction and sentence of the petitioner were illegal and, therefore, set aside the same and vide his order dated February 4, 1988, remanded the case to the trial Court for trial by the Additional Chief Judicial Magistrate according to the procedure of summary trial.