BUDBRAM Vs. STATE

JUDGEMENT

(1.) THIS is a revision application by one Budhram and has been made under the following circumstances; Budhram was prosecuted for an offence under secs. 7/16 (i) and (ii) of the Prevention of Food Adulteration Act in the court of the Sub Divisional Magistrate, Ganganagar on the allegation that on 24-3-65 he was found selling adulterated milk at about 10. 00 a. m. near the crossing of Goshala road in the town of Ganganagar. Shri C. R. Sidana, Food Inspector of the Municipal Board purchased 660 grams of milk from the accused for 0. 56 paise in the presence of the motbirs and he then divided the sample into three phials. He put 16 drops of formalin in each of the phials and then sealed them in the presence of the accused and the motbirs. One phial was handed over to the accused and another was sent to the Public Analyst for chemical analysis and the third one was kept by the Food Inspector. The Food Inspector obtained sanction for prosecution from the Chairman, Municipal Board, Ganganagar and then lodged the complaint against the accused. Three witnesses for the prosecution were examined. P. W. 1 C. R. Sidana was the Food Inspector, and P. W. 2 Chananmal and PW. 3 Shyamlal were motbirs. After recording the evidence the learned trial Magistrate framed a composite charge for the present offence as well as in respect of a previous conviction of the accused for a similar offence. The accused was alleged to have been convicted for a similar offence on 29-10 58 by a Magistrate and on that occasion he was visited with a fine of Rs. 50/- only. The accused did not plead guilty to the charge and claimed to be tried. Accordingly the learned Magistrate afforded him the opportunity of further cross-examining the prosecution witnesses and then eventually the accused was examined under sec. 342 Cr. P. C. on 20-5-66. The accused was questioned about the evidence that was produced against him by the prosecution and was also questioned about his previous conviction in the year 1958. The accused admitted his conviction. The learned Magistrate then called upon the accused to enter upon his defence which he did. The accused examined two witnesses D. W. 1 Banwari Lal and DW. 2 Kundanlal. After considering the evidence on the record the learned Magistrate convicted the accused under secs. 7/16 (i) & (ii) of the Prevention of Food Adulteration Act and sentenced him to one year's rigorous imprisonment and a fine of Rs. 200/-; in default two months' simple imprisonment. The learned Magistrate delivered his judgment on 2-8-66. The accused then went up in appeal to the Additional Sessions Judge, but the learned Additional Sessions Judge dismissed the appeal on 11-10-66.

(2.) IT has been urged by Shri H. M. Lodha appearing on behalf of the petitioner that the trial of the accused stood vitiated on account of the illegality committed by the learned trial Magistrate in bringing in the question of previous conviction of the accused before the stage of conviction in the present case was reached. He submits that the accused having denied the charge when his plea was recorded the only stage at which the question of previous conviction could be brought in would be after the learned Magistrate had found the accused guilty of the present charge. He, therefore, argues that the learned Magistrate was in error in questioning the accused under sec. 342 Cr. P. C. before the proceedings were concluded. He has relied on Trivandrum City Corporation vs. Arunachalam (1) in support of his submission. IT was observed in that case that the charge for an offence of selling adulterated oil could not have been clubbed with the charge for the enhanced punishment. In consequence the learned Judges came to the conclusion that the defect in the charge prejudiced the accused and accordingly the accused could not have been convicted. He has also brought to my notice an unreported judgment of Bhargava J.