Rajasthan High Court - Jaipur
Rajendra Alias Rajjan vs State Of Rajasthan on 16 December, 1987
Equivalent citations: 1988(1)WLN574
JUDGMENT M.B. Sharma, J.
1. The learned Additional Sessions Judge, Bharatpur under his judgment dated April 18, 1984 dismissed the appeal of the accused-petitioner both in respect of his conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act) as well as his sentence of one year's rigorous imprisonment and a fine of Rs. 1000/- or in default of payment of fine to further suffer simple imprisonment for one month. The said conviction was recorded and sentence was inflicted on the accused petitioner by the Chief Judicial Magistrate, Bharatpur under his judgment dated June 10, 1983.
2. Hari Dutt Sharma PW 1 was the Food Inspector, Bharatpur on May 7, 1981. On that day he saw that the accused-petitioner was carrying milk for the purposes of sale and near Dak bungalow, Bharatpur, he (Hari Dutt Sharma) introduced himself to the accused-petitioner and disclosed his identity as Food Inspector and purchased 660 ml. milk after paying its price. The sample was divided in three equal parts and was kept in three clean bottles and 18 drops of formaline was mixed in each bottle and they were sealed and were sent to local Health Officer for analysis. The sample reached to the Public Analyst on May 7, 1981, i.e., the same day it was taken from the accused petitioner. It was analysed by the Public Analyst and as per his report dated May 9, 1981 he found as under:
Fat contents : 9.5% Solid non-fats : 4.0% Starch : Absent Sugar : Absent As per the report of the above Analysis the Public Analyst under his report dated May 9, 1981 came to the conclusion that the Sample of milk was adulterated due to its containing of about 53% of added water. After obtaining the consent under Section 20 of the Act for initiation prosecution against the petitioner, a complaint was tiled before the Chief Judicial Magistrate who tried the accused-petitioner, who pleaded not guilty to the charge On behalf of the prosecution the statement of Hari Dutt Sharma and Ramji Lal were recorded. Thereafter, the accused petitioner was examined under Section 313. Cr.PC to explain the circumstances appearing against him in the statement of the prosecution witnesses. He however, denied that any sample was taken from him. In answer to the last question the accused-petitioner came out with a plea that he does not sell the milk and he was taking the milk to his relation Shibbo because there was a programme of 'KATHA' in his house and he had be n invited there. According to him, he carried 5-7 kg. Milk. The accused examined two witnesses in his defence, namely, Shibbu and Vipti The learned Chief Judicial Magistrate as already stated convicted and sentenced the accused petitioner as mentioned above and the appeal preferred by the petitioner against his conviction and sentence was dismissed.
3. The first contention of the learned Counsel for the petitioner is that by virtue of Section 16A of the Act the case could have been tried summarily but had not so been tried. It is also contended that if the law prescribes a particular procedure for trial of cases then the same procedure must be followed. It appears that such a plea was not raised before the trial court or before the appellate court. Be that as it may, there can be no dispute that the Chief Judicial Magistrate has been authorised to try cases appears to have been tried by the learned Magistrate having jurisdiction in the matter, though instead of trying the case summarily a procedure of warrant cases has been adopted, the question is whether in such case can it be said that trial can be held by the learned Magistrate without jurisdiction. Under Section 16A of the Act all offences under Sub-section (1) of sections 16 of the Act shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the Code of Criminal Procedure shall as far as may be apply to such trial. The second proviso to Section 16A of the Act empowers the Magistrate who is authorised to try the cases summarily that when at the commencement of or in the course of a summary trial under Section 16A of the Act it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus even if at the commencement of the summary trial the Magistrate thinks it undesirable to try such a case summarily, he shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus, the question is if the Magistrate without hearing the parties and without recording the order of affording opportunity to the parties on the question tries the case straight way as a warrant case, whether it renders the judgment of the learned Magistrate without jurisdiction? A look at Chapter XXXV of the Code of Criminal Procedure will show that the said chapter contains (he provisions in respect of irregular proceedings Under Section 461, Cr.PC if any Magistrate not being empowered by law in this behalf does any of the things mentioned in cl. (a) to (q) of Section 461 Cr.PC then his proceedings shall be vitiated. It has already been said earlier that the Chief Judicial Magistrate in Rajasthan have been empowered to try cases summarily Section 465, Cr.PC is relevant. Sub-section (1) of 465, Cr.PC provides that subject to the provisions here in before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any irregularity in any sanction for the prosecution unless in the opinion of that court a failure of justice has in fact been occasioned thereby. Therefore, even if the accused should have been tried summarily by virtue of Section 16A of the Act by the Magistrate authorised in that behalf, and the learned Magistrate at the commencement of the proceedings does not give an opportunity to the parties of hearing on that question and does not record an order that it will be undesirable to try the case summarily, and instead of trying the case summarily tries it as a warrant case, the accused will have to show that by adoption of that procedure failure of justice has been occasioned. In the instant case no such failure of justice has been occasioned. No such objection was taken by the accused in the trial of the case or even at the appellate stage, and even today the learned Counsel for the petitioner could not show that any failure of justice has been occasioned by not trying the case summarily but trying it as a warrant case. Il may be stated that the trial of the case as warrant case is more beneficial to the accused than trying it summarily. In the case of Dharanidhar Sahu v. State of Orissa 1987 (1) PFA Cases 113, a similar question arose and the learned Judge, where there was no notification under Section 16A of the Act authorising the Magistrates to try food adulteration cases summarily, refused to quash the trial which was held as as a warrant case on the ground that the accused was not prejudiced in any manner. It was held that the trial was not without jurisdiction and the conviction was not vitiated.
4. I am of the opinion that an offence under Section 16(7) of the Act by virtue of Section 16A has to be tried summarily, but in case a Magistrate in this case the Chief Judicial Magistrate who has jurisdiction to try the cases summarily by virtue of authorisation under Section 16A of the Act in that behalf, does not try the case summarily and does not afford any opportunity of hearing as provided under Second proviso of Section 16A of the Act and even does not record an order that it would be undesirable to try the case summarily, the trial cannot be held to be vitiated. It is necessary that the accused must show that as a result thereof failure of justice has been occasioned. Learned Counsel for the petitioner, as already stated earlier could not show that there has been any failure of justice, more so when the procedure of the trial of warrant cases is more beneficial to the accused.
5. It was next contended by the learned Counsel that the sample of milk was taken from the possession of the accused petitioner on May 7 1981 and the accused has already undergone about 85 days imprisonment and therefore that sentence of imprisonment and a fine shall meet the ends of justice Further it was contended that even in case where the minimum sentence has been prescribed, the court has power to award a sentence of imprisonment less than minimum prescribed. In support of his contention reliance was placed on the case of Bharosi v. State 1986(1) WLN 548. In that case it related to the post April 1, 1976 period and the accused had already undergone 8 days imprisonment. The learned Judge sentenced the accused for the period already undergone by him and enhanced the sentence of fine from Rs. 1000/- to Rs. 1500/-. It appears that the learned Judge has not laid down any law that even in case under Section 16 of the Act which related to the post April 1, 1976, the court has jurisdicion or is competent to inflict a sentence of imprisonment less than minimum prescribed. It appears that the attention of the learned Judge was not drawn to the amendment to Section 16 which was introduced on April 1, 1976. That amendment escaped the notice of the learned Judge otherwise no court can be competent to inflict the sentence of imprisonment less than minimum prescribed if no such power is vested in the court. I am of the opinion that if the aforesaid judgment in the case of Bharosi (supra) does not lay down that in case where the minimum sentence has been prescribed, the court can award the sentence less than minimum prescribed. If that would have been the case or the judgment is read to have laid down that law, then with due respect to the learned Judge, it will not be a good judgment. It may be stated that under the statute for offence the minimum sentence is prescribed, then the court has no jurisdiction to award the sentence loss than minimum prescribed. It is stated that in such a case even the applicability of Section 360 Cr.PC or the provisions of the Probation Offenders Act, 1958 is not excluded the court may and has jurisdiction to extend the benefit of those provisions, but in case under Statute which excludes the applicability of Section 360 Cr. PC or Probation of Offenders Act, 1958 no benefit of either of those provisions can be extended. It may be stated by a mere reference to Section 20AA of the Act that nothing contained in the Probation of Offenders Act, 1958 or Sention 360 Cr.PC shall apply to a person convicted of an offence under the Act unless that person is under eighteen years of age. Thus unless the accused is under 18 years of age on the date of commission of the offence, his case can lot be dealt with either under Section 360 Cr PC or under the provisions of Probation of Offenders Act, 1958 A look at the instant case will show that the sample of milk was taken from the possession of the accused on May 7, 1931, and the statement of the accused under Section 313 Cr.PC was recorded on March 31, 1983 i.e. less than 2 years after the taking of the sample. The accused had given his age to the Magistrate as 26 years and the estimation of the learned Magistrate is also the same in respect of age of the of the accused. Thus, there is material on record that even on the date of the commission of offence the accused was more than 18 years of age. He was aged 24 years. Thus, the case of the accused-petitioner could not be dealt with either under Section 360 Cr. PC or under the Probation of Offenders Act.
6. The last contention of the learned Counsel for the petitioner is that it is a case which falls under Section 16(1)(first proviso) and therefore for any adequate and special reasons to be mentioned in the judgment, the court can impose sentence of imprisonment which shall not be less than 3 months, but which may extend to two years and with fine which shall not be less than five hundred rupees. There can be dispute that the case of the accused falls under the first proviso of clause (1) of Section 16 of the Act, but there appears to be no adequate and special reasons to impose the sentence of imprisonment of three months because as already stated earlier the milk which was being carried by the accused petitioner and which was recovered from his possession was found to be containing 53% added water.
7. Consequently, I partly allow this revision petition. While maintaining the conviction of the accused petitioner under Section 7/16 of the Act, the accused-petitioner is sentenced to six months' rigorous imprisonment and a fine Rs. 1000/-, and in default of payment of fine to further suffer one month's simple imprisonment. The accused is on bail. He must surrender to his bail bonds before the trial court failing which the trial court shall take steps and see that the accused petitioner is apprehended and undergoes the sentence awarded to him by this Court. He will be entitled to the adjustment of the sentence already undergone by him.