Punjab-Haryana High Court
Jaipal Singh vs State Of Haryana on 6 September, 2024
Neutral Citation No:=2024:PHHC:118993
CRR-619-2020
2020 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-619-2020
Reserved on : 02.09.2024
Pronounced on : 06.09.2024
Jaipal Singh ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Ojas Bansal, Advocate for
Mr. S.K. Aggarwal, Advocate
for the petitioner.
Mr. Abhinash Jain, DAG, Haryana.
****
KULDEEP TIWARI, J.(Oral)
1. Through the instant appeal, challenge hallenge is thrown to the judgment dated 11.02.2020 passed by the learned Appellate Court Court, on the ground that right to speedy trial of the petitioner has been infringed as the learned Appellate Court concerned, remanded the case for re re-trial trial to the Court of competent jurisdiction, that too after passage passage of a decade,, since filing of the complaint in question, question and made a prayer for acquittal acquittal.
2. Before this Court could evaluate evaluate, whether, the right to speedy trial of the petitioner has been infringed or not not,, it is also important to ascertain who is responsible for the delay, delay what factors have contributed towards the said delay and furthermore, furthermore what are the attending circumstances circumstances, including nature ture of the offence is also required to be looked into into, before granting the asked for relief.
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3. Before embarking upon the submissions made by the learned counsel for the petitioner, let l us have brief facts facts, which are essential to adjudicate the issue (supra), (supra) raised before this Court.
FACTS
4. The petitioner along with 13 other persons persons, were arrayed in the area of accused in a criminal complaint/case complaint/case No.467 467 of 2013, filed by the State through Drugs Control Control Officer, Rohtak. The gist of the allegations as culled out by the learned trial Court, Rohtak are read as under ::-
"2. The brief facts of this case are that the complainant has been appointed as an Inspector u/s 21 of the Drugs and Cosmeticss Act 19040 vide Haryana Govt. Health Deptt. Gazette Notification No. 5/45/2011 5/45/2011-3HB-111 111 dated 25.03.2013, and has been working as Drugs Control Officer, Rohtak. It is submitted that on dated 26.08.2011, Sh. Rajnish Kumar Dhaniwal the then Drugs Control Officer, Rohtak,, a notified Inspector under Section 21 of the Act alongwith Sh. M.P Gupta, Asstt. State Drugs Controller, Haryana visited the premises of the firm accused no. 7 M/s Shirdi Medicos, Medical Mor. Rohtak. Sh. Raj Kumar accused no. 6 active partner of accused no. 7 was found present at the accused firm. Accused no. 7 M/s Shirdi Medicos is a licensed firm having valid retail sale drugs licenses no. 682-OB OB-RTK-10 on form 20 and 862- 862 RTK-10 on form 21.
2a. After disclosing identity and purpose of visit Sh Dhaniwall conducted inspection of the accused firm M/s Shirdi Medicos in presence of Sh. Gupta and accused no.
6. An inspection note was prepared & signed by inspection team and accused no. 6. Sh. Dhaniwal collected/purchased four (4) samples of following types of drugs vide form--17 was prepared by Sh. Dhaniwal and signed by inspection team and Sh. Raj Kumar accused no. 6, who also gave his 2 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 3 voluntary hand written statement on form form-17 17 itself. The samples as described on form form-17 17 were divided in four portions each, packed cked separately and sealed effectively by Sh. Dhaniwal with his seal bearing impression 'RKD as per the procedure described in the Act. These sealed samples marked as RKD RKD-RTK-11/42 to RKD-RTK-11/45.
11/45.
These sealed sample portions were signed by inspection team am and accused no. 6 Sh. Raj Kumar. Copy of form form--17 an done sealed portion of each sample were handed over to Sh. Raj Kumar on the spot against acknowledgement on form-17 17 itself. Sh. Raj Kumar accused no. 6 issued a credit memo of 2111/- vide no. 4788 date dated d 26.08.2011 for sampled drugs.
2b. On 29.08.2011, Sh. Dhaniwal sent one sealed sample portion of each sample, to the Govt. Analyst, Haryana alongwith copy of memorandum to Govt. Analytic on form-
form 18 by registered parcel. Sh. Daniwal received test report of sample no. RKD-RTK-11/44 11/44 on form 13in triplicate from Govt. Analyst, Haryana vide test report no. 4658 dated 18.10.2011 declaring the sample of drug "New Mox 500 capsules' (Cap. Amoxycillin Trihydrate IP) as not of standard tandard quality with the reason given below:-
"Sample Sample does not pass the test for assay as Amoxycillin per capsule is less then the IP As per result of test or analyses with protocols of test or analyses applied according to IP each capsule contained 355.1 mg of Amox Amoxycillin ycillin against claimed 500 5 mg. meaning thereby active pharmaceutical ingredient found to be 71% only whe whereas reas IP limit is 90% to 110%."
2c. On 2.11.2011. Sh. Dhaniwal issued a show cause notice alongwith original test report of the drug in question vide letter no. DCO DCO-RTK-11/291 dated ated 2.11.2011 to accused firm no. 7 M/s Shirdi Medicos for disclosing name and other particulars of the persons from whom he 3 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 4 acquired this drug in question. Sh. Raj Kumar accused no. 6 replied vide letter dated 30.11.2011 that he had purchased this drug in n question from accused no. 9 M/s Jivan Gyan Life Care. Rohtak vide its invoie no. JJ-989 989 dated 6.08.2011. On 14.12.2011 Sh. Dhaniwal issued a show cause notice to DCO DCO-RTK-11/416 11/416 dated 14.12.201 to accused no. 9 M/s Jivan Gyan Life Care, Rohtak for disclosing ng name and other particulars of the persons from whom they acquired this drug in question. The accused no. 9 M/s Jivan Gyan Life Care, Rohtak replied vide letter dated 19.12.2011 that he had purchsed this drug in question from accused no. 11 M/s VVM Pharm Pharma, a, Rewari vide its invoice no. 7439 dated 88.07.2011. 2d. On 27.12.2011, Sh. Dhaniwal issued a show cause notice no. DCO-RTK-11/440 11/440 dated 27.12.2011 to accused firm no. 11 M/s VVM Pharma, Rewari for disclosing name and other particulars of the persons from whom he acquired this drug in question. It is submitted that accused firm no. 11 M/s VVM Pharma, Rewari replied vide letter dated 11.01.2012 that he had purchased this drug in question from accused no. 13 M/s Shree Balaji Distributor, Panipat vide its invoice ice no. SBD SBD-395 395 dated 8.06.2011. On 20.01.2012, Sh. Dhaniwal issued a show cause notice no. DCO-RTK-12/18 12/18 dated 20.01.2012 to accused firm no. 13 M/s Shree Balaji Distributor, Panipat for disclosing name and other particulars of the persons from whom he acquired quired this drug in question. It is submitted that accused firm no. 13 M/s Shree Balaji Distributor, Panipat replied vide letter dated 25.02.2012 that he had purchased this drug in question from manufacturer of the drug in question accused no. 5 M/s Jorker Pharmaceuticals Pvt. Ltd. Rai, Distt. Sonepat vide its invoice nvoice no. 199 dated 4.03.2011.
2e. On 20.01.2012, Sh. Dhaniwal issued a show cause
notice no. DCO-RTK
RTK-12/101
12/101 dated 10.04.2012 to
manufacturing firm accused no. 5 M/s Jorker
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Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 5 Pharmaceuticals Pvt. Ltd Ltd.. Rai, Distt. Sonepat alongwith a copy of original Test Report us 25(2) of the Act and 3rd sealed sample portion of the drug in question with all seals intact u/s 23(4) (iii) of the Act. The accused firm no. 5 M/s Jorker Pharmaceuticals Pvt. Ltd. Rai, Dist Distt.
t. Sonepat vide its reply dated 30.04.2012 received in this office by speed post, shown inability to submit required records and also did not intend to adduce evidence in controversion of the Test report no. 4658 dated 18.10.2011 of Govt. Analyst, Haryana. The report of Govt. Analyst Haryana mentioned ibid is conclusive evidence as it has been ch challenged allenged by any of the accused.
2f. Sh. Dhaniwal referred the matter to State Drugs Controller, Haryana vide this office letter no. FDA/DCO/RTK/2012/201 dated 11.06 11.06.2012 .2012 and asked the permission to launch the prosecution against the accused. The State Drugs Controller. Haryana vide his letter no. 24/50-lidrug-1-2012/6079 2012/6079 dated 16.07.2012 granted the permission to launch the prosecution againt the accused. With these assertions, the complainant has averred that the accused persons have contravened the various provisions of the Act and Rules, and they should be punished accordingly."
5. In the instant matter, the petitioner caused appearance in pursuance to the notice, notice, as issued in the instant complaint, and he was admitted to bail on dated 19.08.2014. The accused mentioned in the complaint at serial No.2 to 5 were declared as a proclaimed persons vide order dated 02.01.2018. After the prosecution examined as many as three witnesses in order to substantiate the charges framed against the accused persons persons, the learned trial Court concerned vide judgment dated 02.02.2019 02.02.2019, held the petitioner guilty for commission of offence punishable under Section 17 read with Section 18 (a) (i), 16 (i) (a), punishable under Section 27 (d) of the Drugs 5 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 6 and Cosmetics Act, 1940,, under Section 18 18-A A under Section 3(b) punishable under Section 28 of the Drugs and Cosmetics Act, Section 22(3) of the Act.
The petitioner was finally sentenced vide vide order of sentence dated 04.02.2019 for the offences as under :-
:
Sr. Offence under Period of Amount of fine Imprisonment in No. which convict has imprisonment imposed default of payment been sentenced of fine
1. Section 17 read with Simple Rs.20,000/- Simple Section 18 (a) (i) and imprisonment for imprisonment for 10 Section 16 (i) (a) 01 year days punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940 194
2. Section 18-A 18 under Simple Rs.20,000/- -do-
Section 3(b) imprisonment for punishable under 01 year Section 28 of the Act 3. Section 18-B 18 Simple Rs.20,000/- -do- punishable under imprisonment for Section 28-A 28 of the 01 year Act 4. Section 22(3) of the Simple - -do- Act imprisonment for 01 year
6. The judgment of conviction and order of sentence (supra) (supra), caused grievance to the petitioner, and propelled him to file a statutory appeal before the Court of Sessions Judge, Rohtak.. The prime submission of learned counsel for the petitioner before the learned Appellate Court concerned, was that the Court of Judicial Magistrate Ist Class concerned, was not a Court of competent jurisdiction, jurisdiction to try the offence under which the petitioner has been convicted. The learned Appellate Court concerned, accepted the submissions of the present petitioner, petitioner and finally conclude that the Court of Chief Judicial Magistrate concerned, was not competent Court of law, to try the accused.
Accordingly, the judgment of conviction conviction and order of sentence sentence, was set aside by the learned Appellate Court. However, the learned Appellate Court 6 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 7 concerned, also directed the petitioner to cause appearance before the competent Court of jurisdiction i.e. Additional Sessions Judge Judge-II, Rohtak,, to try the petitioner under the Drugs and Cosmetics Act, 1940.
SUBMISSION BY LEARNED COUNSEL FOR THE PETITIONER
7. Learned counsel for the petitioner on asking for the relief (supra), submits that there is no fault of the petitioner petitioner, that he was tried by a Court, having no jurisdiction. The prosecution has filed the instant criminal complaint nt before the Court, Court, which has no subject jurisdiction jurisdiction, and even the charges were framed for the offences which could only be tried by a Special Court.. Despite that, the prosecution seen nowhere made a request for transfer, transfer orr committal, committal of the instant complaint to the Court of competent jurisdiction.
8. He further submits that the instant complaint is pending since 2011, and the petitioner has suffered suffered a mental agony of a protracted trial for about a decade, decade and sending the petitioner again for a denovo trial,, is in fact, a violation of his right of speedy justice as enshrined under Article 21 of the Constitution of India. In order to lend vigour to his argument,, learned counsel has placed reliance upon the judgment 'Rajan Bhardwaj and others vs. State of Haryana' 2018 (2) R.C.R. (Criminal),, passed by a co co-ordinate Bench of this Court wherein, in the similar circumstances, the judgment of remand of the First Appellate Court concerned,, was set aside aside, and the petitioner was acquitted from the charges on account of delay delay.. The relevant extract of the judgment reads as under :-
:
"17. The question that now arises for determination is the relief to which the he petitioners are entitled. Learned Senior counsel for the petitioners has contended that the complaint pertains to the year 2007 and eleven years have elapsed since the institution of the complaint. The petitioners have suffered immense mental tension and an 7 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 8 trauma on account of the protracted trial and thus, prosecution should not be permitted to continue any longer. Reliance has been placed upon the judgment of Hon'ble Supreme Court in 'Chandrawati Chandrawati v. Ramji Tiwari, 2011 (5) RCR (Crl.) 95 95' in support of his contention. In that case, the Hon'ble Supreme Court had held that the trial was vitiated on account of non non-framing framing of relevant charge, and the request of the prosecution for remand was turned down on the ground that a long period had ela elapsed psed since the inception of the trial."
SUBMISSION BY LEARNED STATE COUNSEL
9. Learned counsel for the State has opposed the submissions made by learned counsel for the petitioner.
petitioner. He submits that the learned Appellate Court concerned, has perfectly and legally remanded the case to the Court of competent jurisdiction, jurisdiction and there is no prejudice caused to the present petitioner.
ANALYSIS
10. This Court has considered the rival submissions made by learned counsel for the parties concerned, and has gone through the entire case file.
11. The Constitution Bench of Hon'ble Supreme Court in 'Abdul Rehman Antulay and others vs. R.S. Nayak and another' (1992) 1 SCC 225, has recognized the right to speedy trial as a fundamental ndamental right enshrined under Article 21 of the Constitution of India India. The ratio of Abdul Rehman Antulay's case (supra) was subsequently followed by Hon'ble Supreme Court in 'P. Ramachandra Rao vs. State of Karnataka' (2018) 1 SCC 196 wherein it is held that the he mental agony, expense and the strain which a person proceeded against in criminal law has to undergo and which coupled with the delay, may result in impairing the capabilities or ability of the accused to defend himself. The relevant extra extract from the judgment 8 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 9 P. Ramachandra Rao (supra) reads as under ::-
"No No person shall be deprived of his life or his personal liberty except according to procedure established by law declares Article 21 of the Constitution. Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation there thereof, feeling the heart-throb throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental ago agony, ny, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re re-triall in short everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication. The consti constitutional tutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far far-off peak. Myriad fact-situations situations bearing testimony to denial of such fundamental right to the accused sed persons, on account of failure on the part of prosecuting agencies and executive to act, and their
9 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 10 turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this C Court ourt in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. In its zeal to protect the right to speedy trial of an accused, can the Court devise and almost enact such bars of limitation though the Legislature and the Statutes have not chosen to do so is a question of far far-reaching reaching implications which has led to the constitution of this Bench of seven-
seven Judge strength."
12. The Constitution itution Bench in Abdul Rehman Antulay's 's case (supra) has formulated certain propositions. The relevant proposition was subsequently considered in P. Ramachandra Rao (supra) which reads as under :-
The Court, it its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in. the opinion of the Constitution Bench (i) fair, just and reasonable procedure implicit in Articlee 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial;
trial; (iii) who is res responsible ponsible for the delay and what factors have contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-
work load of the court concerned, prevailing local conditions and so on what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his 10 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 11 advantage. Guidelines 8, 9, 10 and 11 are relevant for our purpose and hence are extracted aand nd reproduced hereunder:-
"(8) Ultimately, the court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has as been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other ci circumstances rcumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-
time limit for trial of offences. Any such rule is bbound ound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution.
In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time time-limit limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guar guarantee antee of right to speedy trial.
(11) An objection based on denial of right to speedy trial 11 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 12 and for relief on that account, should first be addressed to the High igh Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
13. On the aforesaid principles, as laid down by Hon'ble Supreme Court, this Court has examined the submissions made by learned counsel for the parties concerned.
concerned. In the instant case, the complaint was lodged in the year 2011, and petitioner caused appearance in pursu pursuance ance to the summoning order, order in the year 2014. The petitioner was finally convicted after the protracted trial of about five years.
years Finally, the learned Appellate Court concerned, vide its judgment dated 11.02.2020, set aside the judgment of conviction and order of sentence passed by the learned trial Court and directed the petitioner to cause appearance before the Court of competent jurisdiction for denovo trial. Even the instant revision petition is pending before this Court for the last two years, years therefore, ore, this Court can safely conclude that the petitioner till date is facing agony of protracted trial for the last more than a decade. There is no fault on the part of the petitioner in causing delay in conclusion of the trial. The petitioner er was tried by a Court, which wass not of a competent jurisdiction. The offences for which the petitioner has been charged, the maximum sentence is prescribed is of three years. Even the petitioner was convicted in all the offences for only one year by the learned trial C Court concerned,, which order was subsequently set aside by the learned Appellate Court concerned.
DECISION
14. Keeping in view the above facts and circumstances circumstances, and the legal proposition, this Court can safely conclude that sending the petitioner to face 12 of 13 ::: Downloaded on - 21-09-2024 14:08:25 ::: Neutral Citation No:=2024:PHHC:118993 CRR-619-2020 2020 13 the denovo trial, is in fact, a direct infringement of his right to speedy trial.
15. In view of the above, the judgment of the learned Appellate Court concerned, requires interference by this Court, therefore, the instant revision petition is accepted.
accepted Resultantly, impugned judgment of the learned Appellate Court is set aside to the extent of remanding the case to the Court of competent jurisdiction for denovo trial.. Consequently, the petitioner is ordered to be acquitted from the charges framed against him.
(KULDEEP TIWARI) JUDGE Pronounced on : September 06th, 2024 Manpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 13 of 13 ::: Downloaded on - 21-09-2024 14:08:25 :::