Punjab-Haryana High Court
Jaspal Singh (Pal Singh) vs State (U.T on 6 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Revision No. 164 of 1996 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Revision No. 164 of 1996
Date of Decision: 6.1.2010
Jaspal Singh (Pal Singh)
...Petitioner
Versus
State (U.T., Chandigarh)
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: None for the petitioner.
Mr. Kulbir Dalal, Advocate
for Mr. Hemant Bassi, Advocate
for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
On 25.2.2008, this Court had passed the following order:-
"Jaspal Singh (Pal Singh) son of late Dalip Singh resident of village Dhanas, Chandigarh, was convicted by the Court of Additional Chief Judicial Magistrate, Chandigarh, under Section 7(iii) read with Section 16(1)(a)(i) to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-. In default of payment of fine, to further undergo rigorous imprisonment for one month.
Aggrieved against his conviction and sentence, petitioner had filed an appeal. The same Criminal Revision No. 164 of 1996 2 was decided by Additional Sessions Judge, Chandigarh, on 11th March, 1996. Conviction of the petitioner was maintained and his sentence was reduced to six months.
Mr. M.S. Chaddha, who has filed the petition, is stated to have left the practice. Mr.Gurvinderpal Singh, who is present in the Court and is a very seasoned lawyer, is requested to argue this matter for the petitioner and is appointed as amicus curiae. Registry is directed to supply photocopy of the file to Mr. Gurvinderpal Singh.
The matter be listed for arguments on 10th March, 2008".
Thereafter Mr.Gurvinderpal Singh, Advocate, who was appointed as Amicus Curiae, sought adjournment on 13.3.2008. Case was again adjourned on 10.4.2008, 1.5.2008 and 20.5.2008. A Co- ordinate Bench, on 19.11.2008, had passed the following order:-
"Adjourned to 21.1.2009 in the interest of justice.
In the meantime, counsel for the parties be informed of the date fixed. It is made clear that if no one appears on the next date of hearing, this revision petition shall be disposed of on merits, after going through the file".
In these circumstances, the Court has no option except to proceed and decide the case on basis of record available. Criminal Revision No. 164 of 1996 3
Petitioner Jaspal Singh (Pal Singh) was apprehended by Balbir Singh, Food Inspector, in Sector 16, Chandigarh, on 29.9.1987 at 7.30 A.M. He was found in possession of 20 Kgs. of un-indicated milk. The milk was being carried in a drum. Food Inspector served a notice Ex.PA and purchased 750 mls. of milk by paying Rs.3/-. Receipt Ex.P3 to this effect was executed by the accused. Food Inspector has stated in the complaint that the milk was made homogeneous and it was divided into three equal parts and the sample was taken in three dry and clean bottles. Complaint submitted by the Food Inspector is Ex.PE. The complaint was instituted on 11.11.1987. Complaint reveals that the sample sent to Public Analyst was not in consonance with the standards prescribed for un-indicated milk. The report of Public Analyst has been exhibited as Ex.PD. Public Analyst had found that the milk fat was 3% and milk solids not fat was 8.2%. Thus, it was opined as under:-
"Milk fat is 50 percent deficient and milk solids not fat is 9 percent deficient of the minimum prescribed standards".
The report of Public Analyst is dated 25.10.1987. The Medical Officer of Health-cum-Local Health Authority, Chandigarh Administration, Chandigarh, on 17.11.1987, had sent a notice to the petitioner that complaint has been instituted in the Court of Mr.Gopi Chand, Additional Chief Judicial Magistrate, Chandigarh. This was done to comply with the provisions of Section 13(2) of Prevention of Food Adulteration Act, 1976 (hereinafter referred to as "1976 Act"). The petitioner appeared in the Court and on 14.2.1989, he was charged for offence under Section 7(iii) punishable under Section 16(1)(a)(i) of 1976 Criminal Revision No. 164 of 1996 4 Act.
The prosecution, in support of its arguments, examined Balbir Singh, Food Inspector, as PW.1. In examination-in-chief, he stated that he took the sample in accordance with the rules prescribed. The cross- examination elicited no gains for the defence.
Gangai Yadav, Senior Clerk, in the office of the Local Health Authority, Chandigarh, was examined as PW.2. He proved the postal receipt Ex.PW.2/A regarding intimation sent to accused under Section 13(2) of 1976 Act.
Thereafter, statement of accused was recorded under Section 313 Cr.P.C. and while giving his version, he stated as under:-
"I am innocent. No sample was taken from me by the Food Inspector. I have been falsely implicated in this case. There are other Jaspal Singh in village Dhanas and two of them are milk vendors. The sample might have been taken from them. Food Inspector has close relations with the other two Jaspal Singh of Dhanas, who are milk vendors".
In defence, accused examined Bhag Singh as DW.1. He stated that petitioner was not engaged in the sale of milk and rather this work was done by one Pandit and petitioner was doing work of agriculture in Jagadhri.
DW.2 Gurmail Singh also testified to say that the petitioner was residing at Jagadhri and doing agricultural work.
DW.3 Mehma Singh also testified that accused was his nephew. He proved pass-book Ex.DW.3/A of the accused. Criminal Revision No. 164 of 1996 5
DW.4 Amrik Singh also stated to the same extent that the accused was residing at Jagadhri and was not engaged in the work of selling milk.
DW.5 Puran Singh was also examined to corroborate this version of the accused.
I have perused the testimony of PW.1 Balbir Singh, Food Inspector. The same not only aspire confident but gave minute details regarding the procedure followed for taking the sample. Two Courts below have appreciated the evidence and have returned the finding of fact regarding the guilt of the accused. No patent illegality or irregularity is discernible. The judgments of two Courts below are neither perfunctory nor perverse. Therefore, in revision, this Court will not be in a position to set aside the well reasoned judgments. In the present case, petitioner was convicted by the Court of Additional Chief Judicial Magistrate, Chandigarh, and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1,000/- and in default of payment of fine to further undergo rigorous imprisonment for one month. Additional Sessions Judge, Chandigarh, had reduced the sentence to six months.
Petitioner was taken into custody on 11.3.1996. He was granted bail by this Court on 26.3.1996. Therefore, accused-petitioner had undergone about 15 days of his actual sentence.
A period of more than 22 years is going to elapse. Petitioner has already suffered a protracted trial and has undergone about 15 days of his actual sentence, therefore reduction of sentence can be considered and same can be reduced to already undergone taking Criminal Revision No. 164 of 1996 6 into consideration the fact that in the last 22 years petitioner has been in the corridors of the Court and much misery has been inflicted upon him. In Mahavir vs. State through Govt. Food Inspector, 2000(4) Recent Criminal Reports 208, it was held as under:
"6. Learned counsel for the petitioner, however, further contends that the occurrence in this case pertains to the year 1984, to be precise, February 17, 1984 and a period of 16 years has already gone by. Petitioner has already suffered the agony of protracted trial, spanning over a period of one and half decades. Petitioner was 40 years of age at the time of occurrence and further that he was already undergone sentence for a period of 25 days. For the contention that petitioner should be dealt with leniently in these circumstances his counsel relies upon Manoj Kumar v. State of Haryana, 1998(1) RCR 563. Learned State counsel has, of course, been able to defend this case on merits but practically has nothing to say insofar as reduction of sentence imposed upon the petitioner is concerned.
7. In totality of the facts and circumstances of this case, the Court is of the view that ends of justice would be met if sentence imposed upon the petitioner is reduced to the one already undergone by him. So ordered. Order of payment of fine and so Criminal Revision No. 164 of 1996 7 also consequences in default thereof are, however, maintained. Learned counsel for the petitioner informs the Court that fine has already been paid."
A single Bench judgment Des Raj vs. State of Haryana, 1995 (XXII) Criminal Law Times (482), which reads as under:
"9. Now, it is well settled that the right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Fundamental rights are not a teasing illusion to be mocked at. These are meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any- the-less right of the accused. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. This is how the courts shall understand this right; and have gone to the extent of quashing the prosecution after such inordinate delay in concluding the trial of an accused keeping in view the facts and circumstances of the case. Keeping a person in suspended animation for 8 years or more without any case at all cannot be Criminal Revision No. 164 of 1996 8 with the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution by this Court in the exercise of its extra-ordinary jurisdiction.
10. An identical question had arisen before the apex Court in Braham Dass's case (supra), wherein their lordship were pleased to observe as under:
Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and High Court while reversing the judgment of acquittal made by the appellate Judge has not made clear reference to clause (f). The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment. We do not find any useful purpose would be served in sending the appellant to jail at this point of time for undergoing the remaining period of the sentence, though ordinarily in an anti- social offence punishable under the Prevention of Criminal Revision No. 164 of 1996 9 Food Adulteration Act the Court should take strict view of such matter.' This view was followed by this Court in Nand Lal v. State of Haryana, and Ishwar Singh's case (supra). The present case is fully covered by the view expressed by the apex Court and by this Court in the judgments cited above and I have no reason to differ therewith.
11. For the reasons mentioned above, the conviction of the petitioner for an offence under Section 16(1)(a)(i) read with Section 7 of the Act is hereby maintained. However, keeping in view the facts and circumstances of the case and the fact that the petitioner has already faced the agony of the protracted prosecution and suffered mental harassment for a long period of eight years, his sentence is reduced to the period of sentence already undergone. Sentence of fine is, however maintained along with its default clause."
In another Single Bench of this Court Mahabir vs. State of Haryana, 1997(3) RCC (469), a following view was taken:
"The facts indicate that incident pertains to more than 14 years ago. The short question that thus arises for consideration is as to whether it would be appropriate to direct the petitioner to undergo the rest of the sentence. There is no over-emphasizing Criminal Revision No. 164 of 1996 10 the fact that speedy trial which is the essence of justice has been lost. A reference of some of the precedents in this regard would make the position clear. In the case of Manjit Singh vs. The State of Punjab, 1993(2) Prevention of Food Adulteration Cases, 67, 11 years had expired before the revision petition was decided. Keeping in view the inordinate delay, the sentence was reduced to the one already undergone. The same question again was considered by this Court in the case of Pardeep Kumar vs. State (U.T.) Chandigarh, 1994 (1), Chandigarh Criminal Cases 58. Therein the sample had been taken in the year 1984. 9 years had expired by the time the revision petition was heard. Once again the sentence was reduced to the one already undergone. The view point of the Delhi High Court is the same in the case of Vir Singh Chauhan vs. State (Delhi), 1994(2) Chandigarh Criminal Cases 253. When the revision came up for hearing, 7 years had expired. Learned Single Judge of the said Court reduced the sentence to the one already undergone. Before the Madhya Pradesh High Court in the case of Jamnalal vs. The State of M.P., 1995 (1) Prevention of Adulteration Cases 78, the same view prevailed.
8. All these decisions are based in the Criminal Revision No. 164 of 1996 11 judgment of the Supreme Court in the case of Braham Dass vs. State of Himachal Pradesh, AIR 1988 SC 1789. Therein the accused had been convicted for selling masur whole. The accused had been acquitted by the trial Court, but High Court held him guilty. 8 years were lost. Part of the sentence had been undergone. The Supreme Court reduced the sentence to the one already undergone.
9. The position in the present case is not different. As already noted above, 14 long years have expired, when the sample was taken. The petitioner has already undergone a part of the sentence. In these circumstances, it will not be in the ends of justice that petitioner again to undergo the rest of the sentence. Consequently, the sentence must be reduced to the one already undergone.
10. For these reasons, revision petition fails and is dismissed, but the sentence is reduced to the one already undergone."
In another judgment of this Court rendered in Mohinder Singh vs. State (Chandigarh Administration), 1997-1 Vol.CXV (Punjab Law Reporter) 623, it has been held as under:
"8. The last submission made in this regard was pertaining to the sentence. It was argued that incident pertains to the year 1980 and the petitioner is facing the agony of a prolonged trial and thereafter Criminal Revision No. 164 of 1996 12 appeal and the revision, 16 years have elapsed. The decision in the case of Hyssainara Khatoon and others v. Home Secretary, State of Bihar, AIR 1979 SC 1360 had set the law into motion. The scope of Article 21 was extended and it was held that expeditious disposal of the cases was an integral and essential part of the fundamental right to life and liberty. In paragraph 5 it was held:
'Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair and just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.' The same question was considered by a Bench of the Patna High Court in State of Bihar v. Ramdaras Ahir and others, 1985 Crl. L.J. 584. It was concluded that the word 'trial' would bring within its sweep, the appeal that would be pending against such an order. In paragraph 17 the Court had held:
'Therefore, there seems to be no option, Criminal Revision No. 164 of 1996 13 but to hold that the word 'trial' in the context of the constitutional guarantee of a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court - whether against conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisaged an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original Court alone.' Subsequently, the Full Bench of Patna High Court in Anurag Baitha v. State of Bihar AIR 1987 Patna 274 reiterated the same view and in paragraph 11 it was held:
'If Art.21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but in deed is an actually meaningful protective provision, then a fortiori expeditious hearing of substantive appeals against convictions is fairly and squarely within the mandate of the said Article.'
9. Reverting back to the fact of the present case as already mentioned above, the incident pertains to a period of more than 16 years ago. The petitioner had already undergone nearly 2 months of the sentence. As pointed out above, fair, just and reasonable procedure is implicit in Article 21 of the Criminal Revision No. 164 of 1996 14 Constitution. After such a prolonged period, though the petition is without merit, it would be inappropriate to insist that petitioner can well be sent to undergo the rest of the sentence. It would be unfair. Article 21 of the Constitution would bring within its sweep, not only expeditious trial but disposal of appeals and revisions. The fairness to the accused petitioner, therefore, demands in the peculiar facts of this case that giving predominance to the said article, the sentence should be reduced to the one already undergone. Order is made accordingly."
In Bihari lal vs. State of (U.T.) Chandigarh 2000(1) RCR (Criminal) 222, a single Judge of this Court also reiterated the same view and held as under:
"5. Section 16 of the Prevention of Food Adulteration Act provides that the person found guilty of the offence shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than one thousand rupees. The proviso further provides that in cases covered by Clauses (i) and (ii) to Section 15(1) of the Act, for adequate and special reasons to be mentioned in the judgment, the Court may impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and Criminal Revision No. 164 of 1996 15 with fine which shall not be less than five hundred rupees. Fair, just and reasonable procedure implicit in Article 21 of the Constitution of India, creates a right in the accused to be tried speedily. It is now well settled that the right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Right to speedy trial following from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial.
6. In Chander Bhan V. State of Haryana, 1996(1) Recent Criminal Reports 125, it has been held by this Court as under:-
"It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of a protracted trial due to the fault of the prosecution by this Court in the exercise of its extra-ordinary jurisdiction."
7. In Municipal Corporation of Delhi V. Tek Criminal Revision No. 164 of 1996 16 Chand Bhatia, AIR 1980 Supreme Court 380, the Apex Court held as under:-
"Though adulteration of an article of food is a serious anti-social offence which must be visited with exemplary punishment, it will be rather harsh to pass a sentence of imprisonment in the facts and circumstances of the instant case. Under Section 16 as in force at the material time, the Court had the discretion for special and adequate reasons under proviso to sub- section (1) of Section 16 not to pass a sentence of imprisonment. In the instant case, the accused is a man aged 75 years.
The offence was committed more than 11 years ago. The order of acquittal was based on the decision of the High Court. The samples were taken from sealed tins.
These are mitigating circumstances.
Accordingly, instead of passing a
substantive sentence of imprisonment, the accused could be sentenced to period already undergo and directed to pay a fine."
8. In Braham Dass v. State of Himachal Pradesh, 1988 (4) SCC 130, the Supreme Court Criminal Revision No. 164 of 1996 17 held as under:-
"Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and the High Court while reversing the judgment of acquittal made by the appellate Judge has not made clear reference to clauses (f). The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment. We do not find any useful purpose would be served in sending the appellant to jail at this point of time for undergoing period of the sentence, though ordinarily in an anti-
social offence punishable under the Prevention of Food Adulteration Act, the court should take strict view of such matter. While dismissing the appeal, we would, however, limit the sentence of imprisonment to be period already undergone and sustain the fine along with the default sentence."
9. All the three cases cited above were under the Prevention of Food Adulteration Act.
10. The mitigating circumstance in this case is that the petitioner is undergoing the agony of this Criminal Revision No. 164 of 1996 18 protracted trial for the last more than 15 years and he can be compensated suitably by reducing the substance sentence imposed upon by him to the one already undergone by him.
11. For the fore-going reasons I reduce the substantive sentence of the petitioner to the one already undergone by him. However, the sentence of fine shall remain unaltered."
Same view has been reiterated in Chander Bhan v. State of Haryana 1996(1) Recent Criminal Reports 125; Sat Pal vs. State of Haryana 1998(1) Recent Criminal Reports 75; Ram Kishan vs. State of Haryana 2000(1) Recent Criminal Reports 196; Krishan Kumar Narang vs. State (U.T.) Chandigarh 2005(3) Recent Criminal Reports and Tirath Ram vs. State of Punjab, 2007(4) Recent Criminal Reports 69, relevant portion of which reads as under:
"19. However, keeping in view the fact that the petitioner was 50 years of age at the time of recording of his statement under Section 313 of the Cr.P.C. and he would be, by now, fairly advanced in the age, as also the fact that he has faced the agony of criminal proceedings for the last more than 16-1/2 years, I am of the opinion that the sentence awarded to him deserves to be reduced to that of fine. For this view, I draw support from a judgment of the Supreme Court in Sri Krishan Gopal Sharma and another v. Criminal Revision No. 164 of 1996 19 Government of N.C.T. of Delhi, 1996(2) RCR (Criminal 591: 1996(1)F.A.C. 258 (SC) and also from the judgments of Allahabad High Court in Bhageloo v. State of U.P. and another, 1996(2) F.A.C. 199 and of this Court in Mahavir v. State through Govt. Food Inspector, 2000(4) RCR (Criminal) 208 (P&H)".
Since in the present case, petitioner has suffered a protracted trial of about 22 years, I find that the petitioner is also entitled to the benefit of the consistent view taken by this Court. Therefore, sentence of petitioner is reduced to already undergone. However, sentence of fine is enhanced to Rs.10,000/-. The trial Court shall call upon the petitioner to deposit the fine.
In case, the fine is not deposited, the benefit of reduction in sentence shall not accrue to the petitioner.
With the observations made above, the present petition is disposed of.
(Kanwaljit Singh Ahluwalia) Judge January 6, 2010 "DK"