D. Soundararajan vs Food Inspector, Corporation of Madras

K.M. Natarajan, J.—This petition is filed u/s 482, Code of Criminal Procedure to quash, the proceedings in M.F. No. 24 of 1990 on the

file of XX Metropolitan Magistrate, Madras.

The case of the Petitioner as disclosed in the petition can be briefly stated as follows: Respondent-Food Inspector of Corporation of Madras

has filed a complaint against the Petitioner in the Court of the X Metropolitan Magistrate, Madras, for an offence u/s 2(1)(a) read with Ss. 7 and

16 of the Prevention of Food Adulteration Act read with Rule BA. 11.02.20 of the Prevention of Food Adulteration Rules, in that on 16.7.1985,

the Petitioner sold 450 gms. of cooking butter for analysis purpose and the sample was found deficient in milk-fat content to the extent of 4.3% by

weight and that opinion was based on the fact that genuine cooking butter should contain not less than 76% of milk-fat, whereas the butter sold by

the Petitioner was found to contain only 71.7% of milk-fat. On 16.7.1985 the sample was taken and on 6.8.1985 the certificate of analysis was

issued and sanction was granted by the Health Officer to prosecute the Petitioner on 23.8.1985. On 7.11.1985, the case was taken on file and the

summons ordered to the accused.

The accused appeared before the X Metropolitan Magistrate, Madras and was given a copy of the complaint and his plea was also recorded

on 28.11.1985. Excepting that the case was adjourned from month to month, nothing happened while the case was pending before the X

Metropolitan Magistrate. After undergoing 42 hearings, the case was transferred to the Court of XX Metropolitan Magistrate on 21.4.1989 after

the Special Court was constituted to try all the Food Adulteration Cases in the city of Madras. The Petitioner appeared before that court on

27.4.1989. Thereafter also, the case was undergone 10 hearings and it is now adjourned to 31.1.1990. It is further stated that till now not even a

single witness has been examined in this case though the case has undergone 52 hearings and the accused has been regularly attending the Court

except on one or two occasions. According to the Petitioner, the offence alleged against him is for a minor contravention of the Food Adulteration

Rules and is purely technical. Further, the adulteration alleged cannot be due to human agencies and does not injuries to health. In view of Article

21 of the Constitution of India, wherein life and liberty are guaranteed, the right of a speedy trial is one of the dimensions of the fundamental rights.

Since the fundamental right of speedy trial has been infringed in the case of the Petitioner, who has been attending to Court on innumerable hearing

without any purpose, the proceedings against him have to be quashed. Hence, he prayed for calling for the records and quashing the proceedings

as stated in the opening paragraph.

This petition was filed on 17.1.1990 and stay was obtained. When the matter was taken up for hearing, learned Counsel for the Petitioner

produced before this Court the diary extract relating to the proceedings of this case on the file of the X Metropolitan Magistrate and XX

Metropolitan Magistrate, Madras. It is worthwhile to quote the same in this order for better appreciation. It is as follows: (Diary Extract omitted. -

Ed.)

Learned Counsel for the Petitioner took this Court through various proceedings and also the complaint levelled against the Petitioner and

submitted that after appearance, there are as many as 58 hearings. Even after the receipt of report of the analyst, the case was adjourned on

number of hearings and particularly, even for furnishing copy of the report the case was adjourned for nine hearings. When the case was posted for

hearing after two years, the complainant was not ready for nearly 15 hearings. After the case was transferred to the Special Court, the Respondent

complainant was not ready for nearly 15 hearings. It is only in those circumstances, the accused-Petitioner had approached this Court for quashing

the proceedings as there is infringement of the fundamental right in the exercise of speedy trial. According to the learned Counsel, as single witness

was not examined even though the occurrence took place on 16.7.1985 and the report of the analysis received on 31.7.86. According to the

learned Counsel, the Petitioner accused is only an employee of Nilagiri Diary Farm and the employer has not been prosecuted, but the employee

alone has been prosecuted, and that too, for the deficiency of 4.3% of milk fat in the cooking butter. In support of his contention, learned Counsel

drew our attention to various case law.

Per Contra, learned Counsel for the corporation of Madras submitted that the report of the analysis was received on 31.7.86 and was served

on the accused on 5.3.87 and then there are about 40 hearings in which the accused was absent for nine hearings. According to the learned

Counsel, if the trial is taken up now, the accused will not be prejudiced in anyway and merely because there is delay, the proceedings cannot be

quashed. If there had been delay, it is only between 5.3.1987 and 28.2.1990, According to the learned Counsel the cases relied on by the learned

Counsel for the Petitioner will not be helpful to him in this case.

The point for consideration is, whether the proceedings are liable to be quashed on the ground of long delay in conducting the proceedings and

for violation of the fundamental right guaranteed under Article 21 of the Constitution of India, for a speedy trial.

Admittedly in this case the occurrence took place on 16.7.1985 and the certificate of the analyst received on 6.8.1985 and after the sanction of

the Health Officer accorded on 23.8.1985, the case was taken on file on 7.11.85. The accused appeared on 28.11.1985 and this petition was

filed on 17.1.1990. In the meantime, there are as many as 58 hearings. Though the analyst''s report was received on 31.7.1986, copy of the report

was not furnished to the Petitioner and the case was adjourned on that ground for nine hearings till 5.3.1987. Thereupon, for some hearings both

the complainant and the accused were absent, for some hearings, complainant was absent and in some hearings the accused was absent. Then

fresh summons were ordered. It is seen from the diary extract, from 13.8.1987, though the accused was presenting the complainant was absent. In

some hearings, counsel for Corporation was absent. For so many hearings, it is only for the absence of complainant and his witness, the case was

unnecessarily adjourned and the matter has been prolonging for nearly four years and three months. According to the learned Counsel for the

Petitioner, the offence alleged is one of adulteration and that too, deficiency of 4.3% of milk-fat in the cooking butter and that the employer under

whom the Petitioner was working was not prosecuted and only the employee is prosecuted, and even after four years from the date of occurrence,

the case has not been taken up for hearing and it is now not open to the Corporation to say that by now taking up the case, the accused will not be

prejudiced.

Learned Counsel for the Petitioner relied on the decision in State of Madras Vs. C.V. Parekh and Another, in support of his contention that no

liability can be fastened on the employee in the absence of the employer when the contravention is by the employer himself. The Supreme Court

has held as follows:

It was urged that the two Respondents were in charge of, and were responsible to, the company for the conduct of the business of the company

and, consequently, they must be held responsible for the sale and thus contravening the provisions of Clause 5 of the Iron and Steel (Control)

Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person

contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale

in contravention of Clause 5 of the Iron and Steel (Control) Order was made by the Company. In fact, the company was not charged with the

offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself.

Learned Counsel for the Petitioner also relied on the decision in K. Krishna Rai v. Arti Press (1991 L.W.(Crl.) 513) and it is held therein as

follows:

In the present complaint M/s. G. Company Limited, which has committed the offence is not an accused. Unless the Company is made an accused,

the person who is in charge of and who is responsible to the company for the conduct of the business of the Company cannot be made an

accused. This is a settled position of law. In the instant case, the offence committed by G. Company Limited, which has committed the offence is

not an accused in the case. In such circumstances, there can be no prosecution of the Managing Director, when the Company is not prosecuted.

Those decisions were rendered under the Essential Commodities Act and the Negotiable Instruments Act and the same are in pari materia to the

Food Adulteration Act and can be applied to this case. But, the said question is not quite relevant as in this case, we are concerned only with the

question, whether on account of the delay in the conduct of the proceedings and in view of the fundamental right guaranteed under Article 21 of the

Constitution of India, the proceedings are liable to be quashed or not.

Learned Counsel for the Petitioner drew the attention of this Court to the decision of the apex court reported in Raghubir Singh v. State of

Bihar (1988 L.W.(Crl.) 304) wherein it was held:

The Constitutional position is now well-settled that the right to speedy trial is one of the dimensions of the fundamental right to life and liberty

guaranteed by Article 21 of the Constitution: Vide Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, Kadra Pahadiya v.

State of Bihar, AIR 1981 SC 939 and Kedra Pahadiya v. Stale of Bihar ( AIR 1982 S.C. 1167) (per Bhagwati and Eradi, JJ.), and State of

Maharashtra Vs. Champalal Punjaji Shah, In foreign jurisdictions also, where the right to a fair trial within a reasonable time is a Constitutionally

protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings

Stranak v. United States ( 1973 37 Law Ed. 2456) and Barket v. Winge (1972 407 U.S. 514), two cases decided by the United States Supreme

Court and Bell v. Director of Public Prosecution Jamaica ((1985) 2 All ER 585), a case from Jamaica decided by the Privy Council. Several

questions arise for consideration. Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the case, the

spare availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the

wilfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to

causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a

speedy trial? Was there a likelihood of the accused being prejudiced in his defence?

In respect of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some

of these factors have been identified in Barket v. Winge (1972) 407 U.S. 514 (supra). A host of other questions may arise which we may not be

able to readily visualise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty

guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as acting fairly is of the

essence of the principles of natural justice. In re H.K. (1967) 1 All E.R. 226, and ''affair and reasonable procedure'' is what is contemplated by the

expression ''procedure established by law'' in Article 21 (Menaka Gandhi).

In S.V. Ramachandran and Anr. v. State by Inspector, Railway Protection Force (1992 L.W.(Crl.) 152) it has been held:

In this petition preferred u/s 482, Code of Criminal Procedure to call for the records and quash the pending prosecution as not maintainable and

an abuse of process of court, the only ground urged by Mr. A. Raghunathan, learned Counsel representing the Petitioners is that from 1982 upto

December, 1989, when he preferred this petition, witnesses were not produced by the Respondent, though adjournments have exceeded 66 in

number. On one occasion, six years after the complaint was filed, viz. on 4.8.1988, learned Magistrate has made an endorsement on the docket

sheet, that one witness, who was present, left the court even without permission and therefore the Chief Security Officer had to be addressed for

his production. A year and four months rolled by and even thereafter no witnesses were produced by the prosecution.

* * * * *

I have considered the sole contention of Mr. A. Raghunathan, Total inaptitude, carelessness and object negligence in the conduct of this

prosecution is apparent. Facts regarding adjournments need no repetition. If the prosecution had not been able to produce, even one witness

produced made himself scarce on one occasion, it will be unfair, to still hold, that the Petitioners will have to necessarily face the ordeal of a trial,

for no fault whatever at their end. It is not disputed that only on very few occasions, the Petitioners were absent and that too on petitions filed u/s

317, Cr.P.C., which were allowed. Identity of the Petitioners never stood challenged. The value of the properties seized appears to be Rs. 2700/-.

Day in and day out courts impress upon the prosecution agency the need for speedy trial and fair procedure, since they would fall within the

mandate of Article 21 of the Constitution of India. This case is an example of how the law laid down is thwarted with impunity. Eleven years rolled

by since the commission of the offence alleged. If for about seven-years, the prosecution had not been able to produce witnesses most of them

government officials, regarding an occurrence which had taken place a year earlier, no useful purpose would be served in allowing this petition, to

survive any further. It is said, that the complainant had persuaded himself to represent that he was not able to be present in court since he was on

line duty for several years. This excuse is obviously ridiculous and cannot work out to the disadvantage of the Petitioners. Long delay and

inaptitude in the conduct of this prosecution will be sufficient to quash the pending proceeding in C.C. No. 9422 of 1982, on the file of the VI

Metropolitan Magistrate, Egmore, Madras. This petition is allowed and all further proceedings in C.C. No. 9422 of 1982 on the file of the VI

Metropolitan Magistrate, Egmore, Madras, shall stand quashed.

In Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , it has been held:

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily. Right to speedy trial is the right of the

accused. The tact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the

accused. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt of innocence) must be arrived at

with reasonable despatch-reasonable in all the circumstances of the case. It is in the interest of all concerned that the guilt or innocence of the

accused is determined as quickly as possible in the circumstances (Paras 81 and 86)

The constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in 5.309 of the Code of Criminal Procedure. This

section must be read with Section 482 of the Code which saves the inherent powers of the High Court. (Paras 82 and 62)

Even apart from Article 21 courts in this country have been cognisant of undue delays in criminal matters and wherever there was inordinate delay

or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put

an end to by making appropriate orders. (Para 65) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of

investigation, inquiry, trial, appeal revision and re-trial (Para 86)

The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other words the accused should not be subjected to

unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should

be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-

availability of witnesses or otherwise (Para 86)

But it is not possible to accide to the demand rule i.e. an accused who does not demand a speedy trial, who stands by and acquiesces in the delay

cannot suddenly turn round after a lapse of period and complain of infringement of his right to speedy trial. The state or complainant prosecutes

him. It is, thus the obligation of the state or the complainant, as the case maybe, to proceed with the case with reasonable promptitude. Particularly,

in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where

they do not often got competent legal advice, the application of the said rule is wholly inadvisable. If in a given case, he did make such a demand

and yet he was not tried speedily, it would be a plus point in his favour, but the more non-asking for a speedy trial cannot be put against the

accused."" (Paras 84 and 86)

Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long

delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The

prosecution should not be allowed to become a prosecution, again depends upon the facts of a given case (Para 86)U.S. v. Ewell 15 L Ed.2d

627, approved and applied.

While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant

circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and

so on what is called, the systemic delays. Though it is the obligation of the State to ensure a speedy trial and state includes judiciary as well, but a

realistic and practical approach should be adopted in such matters instead of a pedantic one. (Para 86)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 been

denied in a given case, (para 86). It is neither advisable nor practicable to fix any time limit for trial of offences. Any such rule is bound 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 delays. 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. (Paras 83 and 86). 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 circumstances 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 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. (para 86)

Applying the ratio laid down in the above quoted decisions to the facts of this case. I find that though the occurrence took place on 16.7.1985,

namely, when the sample was taken from the Petitioner and the case was taken on file on 7.11.1985, during the period of more than 4 years and 3

months, for about 58 hearings, the case has been unnecessarily adjourned either for the absence of the complainant or the counsel for the

complainant. Though the main witness was the Food Inspector in this case, he was not produced on many hearings, and it is seen that the

Petitioner accused was absent only on a few hearings, that too on petitions filed u/s 317, Code of Criminal Procedure which were allowed. It will

be unfair to still hold that the Petitioner will have to necessarily face the ordeal of a trial for no fault at his end. It is further to be noted that this is a

case where the Petitioner was admittedly employed in the Nilgiris Dairy Farm and from him the sample of cooking butter was taken. According to

the Public Analyst, to whom the sample was originally sent for analysis, it was found to contain 71.7% of milk fat. When it was sent for re-

examination by the Central Analyst, it was found to contain 72.96%. According to the prosecution genuine cooking butter should contain not less

than 76% of milk fat. Though it was found that there was deficiency of 4.3% of milk-fat, it is now found that there was only a deficiency of 3% of

milk fat. Admittedly, the Petitioner was employed in the Nilgiris Dairy Farm and that he is only an employee. His employer was not prosecuted. In

the circumstances, in view of the adjournments granted on account of the unreadiness on the part of the complainant and on no occasion a single

witness was present even though the case was transferred to the Special Court which was specially constituted for the disposal of the food

adulteration cases, no useful purpose would be served by allowing the prosecution to be continued. Long delay and inaptitude in the conduct of

speedy prosecution will certainly fall within the mandate of Article 21 of the Constitution regarding the speedy trial and fair procedure. Considering

the nature of the offence and also the circumstances in the case, it cannot be said that this is one such case which requires trial in the interest of

justice and warrant passing appropriate order for the conduct of the trial. On the other hand, this Court feels that the right to speedy trial of the

accused has been infringed in this case and in the interest of justice the proceeding against the Petitioner has to be quashed. The ratio laid down in

the above decisions would squarely apply to the facts of this case. It is unfortunate that a statutory body like the corporation is so lethargic in

prosecuting offenders who violate the provisions of the social legislation like the Prevention of Food Adulteration Act. This Court was told that this

is not the only case which is pending before the special court; but a majority of cases are pending for years together for the inaction and lethargic

attitude on the part of the prosecution. This Court feels that the lethargic attitude on the part of the Respondent should be deprecated. This Court

also feels that at least in view of the order passed in this application, the Respondent-Corporation would take some interest in prosecuting the

pending cases before the Special Court which was specially constituted for the disposal of cases Under the Prevention of Food Adulteration Act

and other Acts.

In the result, the petition is allowed and the proceedings against the Petitioner in M.F. No. 24 of 1990 on the file of the XX Metropolitan

Magistrate, Madras are hereby quashed.