Nathu Ram vs State of Haryana

K.S. Kumaran, J.

Petitioners (1) Nathu Ram and (2) Pawan Kumar who are father and son, have come forward with this petition under Section 482 Cr.P.C. for quashing the criminal complaint dated 6.9.1986 (annexure P1) and the proceedings of criminal case No. 713 of 6.9.1986 pending in the Court of Chief Judicial Magistrate, Rewari including the order dated 25.1.1996 (annexure P2) for framing charge against them.

The complaint filed by the Government Food Inspector, Kosli for punishment under Section 16(1)(c) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ''Act'') is to the following effect :

The complainantFood Inspector along with Dr. Gaje Singh, Medical Officer, PHC, Dhakla went to the Provision Store (Karyana Shop) on 29.8.1996 at about 7.30 p.m. for taking sample for analysis under the Act. As they stepped down from the government vehicle and rushed to the shop, the shop keeper, who was later on identified as the first petitionerNathu Ram, slipped away. A boy aged about 16/17 years (later on identified as the second petitionerPawan Kumar) was present in the shop. The Food Inspector after disclosing his identity, inspected the shop where the articles like Gur, Shakkar, tealeaves, sugar, vanaspati, pulses, biscuits and salt etc. were kept for sale to the public. The complainant enquired the boy as to the name and address of the shopkeeper as also his relationship with him. The boy disclosed that he was a customer and did not know the shopkeeper. The complainant on enquiry from the persons who had collected there, came to know that the shop belonged to Nathu Ram who had slipped away and the boy present in the shop is his son. The complainant them showed his intention to the boy to take sample of the articles for analysis against payment under the Act but he flatly refused. The complainant arrested the boy u/s 10(8) of the Act and took him to the Civil Dispensary, Kosli. In spite of the best efforts of the complainant, the boy did not disclose the particulars regarding himself and the shopkeeper but, the inhabitants of Kosli village told the name of the boy as Pawan Kumar, and that Nathu Ram runs the karyana shop, but no person was ready to give a statement. After ascertaining the name and address of the boy and the shop keeper, the boy was released. Thus, the petitioners prevented the complainanat from taking sample for analysis under the Act and committed an offence punishable u/s 16(1)(c) of the Act.

According to the petitioners, they are facing trial since 3.12.1986 and the case has been adjourned for various dates. They have alleged that from the initial stage, the case was tried as a warrant case and remained pending for a long time for recording of precharge evidence, but the complainant did not complete the same and took several adjournments. Initially, Kosli town was in Jhajjar Tehsil District Rohtak, but subsequently it was annexed with the newly created Rewari District. Upto 19.1.1990, the case was pending in the Court of Judicial Magistrate 1st Class, Jhajjar and thereafter transferred to the Court of Chief Judicial Magistrate, Rewari. In the Court at Jhajjar, the case was fixed for 17 times in 4 years but yet the complainant did not complete his precharge evidence.

The petitioners have also alleged that the case was fixed in Rewari on 18.10.1990 before the Chief Judicial Magistrate, Rewari and several dates were taken by the complainanat in 5 years for leading evidence and additional evidence prior to the charge, but the same was not completed. The petitioners have further alleged that though as per Section 16(A) of the Act, it is mandatory that every complaint under this Act should be tried summarily, except when the Judicial Magistrate passes an order in writing giving reasons that the case should be tried as a warrant case, the case was tried as a warrant case, and this requirement was complied with in this case on 14.2.1995 after 9 years of the institution of the complaint. On 14.2.1995, the C.J.M., Rewari passed an order observing that the perusal of the file revealed that the case was being tried as a warrant case without any order on the file to that effect, and then passed an order that the case be tried as a warrant case and adjourned the case to 30.5.1995 for precharge evidence. According to the petitioners, upto 14.2.1995, 20 dates were fixed in 5 years in the Court of C.J.M., Rewari and thereafter on 30.5.1995, the precharge evidence was recorded and the charge has been framed against the petitioners u/s 16(1)(c) of the Act on 25.1.1996. So, the charge has been framed after near about 10 years and upto this date, the petitioners attended the courts (either at Jhajjar or at Rewari) on more than 55 dates and the petitioners are suffering the agony. According to the petitioners, the right to speedy trial guaranteed under Article 21 of the Constitution of India has been violated and that they are not responsible in any way for the delay. Therefore, the petitioners claim that the complaint and all the consequential proceedings against them are liable to be quashed.

The petitioners have also alleged that the allegations against the petitioners do not constitute an offence of serious nature and even if these allegations are proved, no severe punishment is called for, but the learned Chief Judicial Magistrate, Rewari has not given reasons as to why the punishment is likely to exceed one year, but has opted for a warrant trial simply because from the very beginning, the case was being conducted as a warrant case, which is not a sound reason. Further, no case under Section 16(1)(c) has been made out against the petitioners since there is no allegation that the complainant was prevented from taking the sample.

The petitioners have alleged that they have suffered a long mental agony as well as great financial loss by travelling from one place to other for the last 10 years and the prosecution is likely to take 2 or 3 more years in completing the case which will further the agony of the petitioners.

The Government Food Inspector filed a reply on behalf of the respondent State of Haryana admitting that the case was instituted in the Court of the Judicial Magistrate, Jhajjar on 6.9.1986, and also giving the reasons for the various adjournments granted. The reasons for adjournment given by him are as follows :

The case was posted on 26.11.1986 and was adjourned to 3.12.1986 for the production of the birth certificate of the second petitioner (Pawan Kumar) who was stated to be a minor and for the same purpose, from 3.12.1986 to 21.1.1987. On 21.1.1987, the case was adjourned to 18.2.1987 on which date the statement of the Food Inspector was recorded and the evidence was closed. The case was adjourned to 4.3.1987 for consideration of charge, on which date the charge was framed and the case was adjourned for further crossexamination of witnesses. On 3.6.1987, one prosecutionwitness was present and was crossexamined and the case was adjourned to 27.8.1987. On 27.8.1987, the case was adjourned as no prosecutionwitness was present and for the same reason, from 25.1.1987 also. On 10.2.1988, 22.4.1988, 9.6.1988, 6.10.1988, 8.12.1988 and 23.3.1989, evidence of prosecution was recorded. On 23.3.1989, the case was adjourned to 6.4.1989 for summary trial, on which date the case was adjourned to 8.6.1989. On 8.6.1989, the Judicial Magistrate, Jhajjar ordered that the case is to be decided summarily by an officer having the power to decide the case summarily and adjourned the case to 27.10.1989. On 27.10.1989, the case was adjourned to 19.1.1990 as the advocates were on strike. The case was transferred to the Judicial Magistrate, Rewari and posted for notice to the accused for 6.3.1990, and as the accused were not served to 26.4.1990, 28.8.1990 and 9.10.1990. On 9.10.1990, the accused appeared and the case was adjourned to 16.2.1991 for evidence of the Food Inspector. On 16.2.1991, no witness was present and the case was adjourned to 7.5.1991. But on 7.5.1991, the Judicial Magistrate, Rewari directed the accused to appear before the Chief Judicial Magistrate, Rewari as he had no power to try the case summarily. The case was received in the Court of C.J.M., Rewari on 4.6.1991 and posted to 22.10.1991 for precharge evidence. On 22.10.1991, 28.1.1992, 2.6.1992 and 1.9.1992, the prosecutionwitness was not present. On 1.9.1992, the case was adjourned to 27.10.1992, which was declared as a holiday and hence adjourned to 2.12.1992. On 2.12.1992, no P.W. was present and the case was adjourned to 23.2.1993, on which date the Presiding Officer was on leave and the case was adjourned to 18.5.1993 on which date also, the Presiding Officer was on leave and hence the case was adjourned to 20.9.1993. But on 1.9.1993 itself, the case was taken up and adjourned to 16.11.1993 on which date also, the Presiding Officer was on leave and the case was adjourned to 4.12.1993 and then, to 8.3.1994 for precharge evidence. Since the C.J.M. was to go on leave on 8.3.1994, the case was taken up and adjourned to 3.5.1994, but, as no P.W. was present, the case was adjourned to 14.2.1995.

On 14.2.1995 again, an order for trial by warrant procedure was passed by the then C.J.M., Rewari and the case was adjourned to 30.5.1995. On 30.5.1995, the evidence of one prosecutionwitness was recorded and the Food Inspector closed his evidence. The case was fixed for 1.8.1995 for consideration of the charge, but, the case was taken up on 31.7.1995 as the C.J.M. was to go on leave on 1.8.1995 and adjourned to 10.10.1995.

On 10.10.1995, the Food Inspector filed an application for additional evidence and the case was adjourned to 17.10.1995, 21.10.1995, 31.10.1995 and 14.11.1995 for filing the reply. On 14.11.1995, reply to the said application was filed and the case was adjourned to 17.11.1995 for arguments on this application and this application was dismissed and the case was posted to 23.1.1996 for consideration of charge.

On 23.1.1996, the arguments were heard for framing charges and the case was adjourned to 25.1.1996 when the accused were ordered to be charged for the offence. The case was posted on 27.2.1996 for aftercharge evidence on which date, the evidence of one prosecutionwitness was recorded and the case was adjourned to 7.5.1996 but as the C.J.M. was to proceed on leave, the case was taken up on 6.5.1996 and adjourned to 13.8.1996 for further evidence.

The respondent has further alleged that the case was adjourned to different dates in the courts at Jhajjar/Rewari for no fault of the prosecution. The prosecution tried its level best to complete the evidence as early as possible. Mere lapse of time alone cannot come to the aid of the accused/petitioners. The case was adjourned so many times not merely for recording evidence but for other reasons also. The prosecution has so far examined PW 1 Megh Nath on 30.5.1995 and PW 2 Dr Gaje Singh on 27.2.1996. Keeping in view the seriousness of the case, the learned Chief Judicial Magistrate, Rewari has tried the complaint as a warrant case for which the accused had not raised any objection.

I have heard learned counsel for both the sides. The question that arises for consideration in this petition is whether in view of the delay in the disposal of the case from 6.9.1986 the proceedings pending before the learned Chief Judicial Magistrate, Rewari are liable to be quashed on the ground that the petitioner''s right to have a speedy trial guaranteed under Article 21 of the Constitution of India has been violated.

It is not disputed that this case has been pending from 6.9.1986 when the complaint was lodged against the petitioners. More than 10 years have elapsed since the date of the complaint. The details given by the respondent regarding the various dates to which the case was adjourned and the reasons for adjournment go to show that the petitioners have not been responsible for the delay at all, except for a period of one month from 17.10.1995 to 14.11.1995 when the petitioners had taken time for filing the reply to the application by the prosecution for letting in additional evidence. This can, by no means, be stated to be unnecessary or undue delay caused by the petitioners. Otherwise, I find that the case has been adjourned several times on the grounds like that the witness for the prosecution was not present, that the Presiding Officer was either on leave or was about to go on leave, that the Presiding Officer had no power to try the case summarily, that the place where the occurrence is alleged to have taken place was annexed to a newly constituted district and, therefore, the case had to be transferred to the appropriate Court in the newly constituted district, that the Presiding Officer had not passed an order giving reasons for trying the case as a warrant case and, therefore, for passing appropriate orders etc. But none of these reasons for adjournments can be attributed to the petitioners/accused. They were not responsible for adjournments given on these several grounds.

But the learned counsel for the State contended that the complaint and the consequential proceedings cannot be quashed on the mere ground that there was delay and relied upon a judgment of the Hon''ble Supreme Court in K. Krishna Ayyar v. State of Kerala, 1993(3) RCR 289. But this decision has no application to the facts of this case. In the case before the Hon''ble Supreme Court, which was a criminal appeal, the offence under the Prevention of Food Adulteration Act, 1954, was committed in 1980 and the accused was convicted on 17.7.1981 by the Judicial Magistrate. The Additional Sessions Judge dismissed the appeal on 28.10.1981. The criminal revision petition filed before the High Court was dismissed on 8.8.1984 and thereafter, the accused had approached the Supreme Court by means of an appeal. The accused pleaded before the Hon''ble Supreme Court that the occurrence had taken place more than a decade ago and, therefore, a sympathetic view be taken in the appeal and he be acquitted. This request of the accusedappellant was not accepted by the Hon''ble Supreme Court and the Hon''ble Supreme Court held that though there has been some lapse of time, lapse of time alone cannot come to the aid of the appellant since having found the appellant guilty, the Court is obliged to convict him, and not let the crime go unpunished. The Hon''ble Supreme Court also observed that the appellant had been prosecuting the case in appeal and revision, that the High Court dismissed the revision petition in 1984, and the appeal remained pending in the Supreme Court ever since but as the appellant had obtained an order of bail, was obviously not interested in the early disposal of the appeal and took no steps in that behalf. In these circumstances, the Hon''ble Supreme Court held that the pendency of the appeal in the Supreme Court for six years does not, by itself, render the conviction bad or raise any other equity in his favour.

But that is not the case here. While in the case before the Hon''ble Supreme Court, the offence was committed in March, 1980 and the case was disposed of in July, 1981 by the trial Magistrate, and reached the Hon''ble Supreme Court in the year 1985 (after appeal to the Sessions Court and revision to the High Court) and was disposed of by the Hon''ble Supreme Court in 1993, the present case on hand is still in the trial Court from 1986 for evidence, which has not been completed. As the learned counsel for the petitioners rightly contended it may still take 2 or 3 more years. The petitioners must have suffered not only the agony of the trial, but also financial loss. Initially, they have been going to the courts at Jhajjar and then at Rewari, which means that they must have been put to considerable expenses for facing trial during the course of these 10 years.

I have already found that the petitioners are, in no way, responsible for the delay. Thereafter, in these circumstances, I find that this decision of the Hon''ble Supreme Court in K. Krishna Ayyar''s case (supra) is not applicable to the facts of the present case.

The learned counsel for the respondentState also relied upon the decision of the Hon''ble Supreme Court in Abdul Rehman Antulay etc. v. R.S. Nayak and another, 1994(1) Prevention of Food Adulteration Cases 128, in support of his contention that it is not possible in the present day circumstances to draw a timelimit for the disposal of the criminal proceeding and that while determining whether there was undue delay, regard must be had to all the attendant circumstances, including nature of offence, number of accused, witnesses, work load of the Court concerned, prevailing local conditions etc. It is true that this decision supports the contention of the learned counsel for the respondentState. But even if we examine the facts of this case on our hand, bearing in mind the principles laid down by this decision of the Hon''ble Supreme Court, it would be evident that this is a case where there has been inordinate and undue delay and that the other attendant circumstances also justify the request of the petitioners herein.

In the case on our hand, it is not as if the petitioners herein have been found to be dealing in adulterated goods. Even according to the case of the respondentState, the Government Food Inspector went for taking samples and the owner of the shop namely, the first petitioner had slipped away from the shop and the second petitioner who is his son, did not cooperate with the Food Inspector in taking the sample. Therefore, the petitioners have been charged with having committed an offence of preventing the Food Inspector from taking the sample as authorised under this Act. This is all the offence that is stated to have been committed by the petitioners. The second petitioner even according to the complaint, was only a boy of 16/17 years old at that time. This alleged offence is punishable under Section 16(1)(c) of the Food Adulteration Act, 1954, with imprisonment for a term which shall not be less than six months but may extend to 3 years and with fine, which shall not be less than Rs. 1,000/. So we find that it is not even alleged by the respondentcomplainant that the petitioners have committed any substantial offence, i.e. the offence of dealing in adulterated foods.

Further, we find that the courts before which this case has been pending, have been following initially the warrant procedure, then changed to summons procedure and then again to the warrant procedure. Even after the framing of the charge on 25.1.1996, the evidence of the case has not proceeded further. Even after the lapse of nearly 10 years from the date of the alleged offence, the aftercharge evidence has not been completed. It may take one or two more years. I have already pointed out that the petitioners are not responsible for the delay. The delay, as pointed out in the preceding paragraphs, is inordinate, unnecessary and undue. The delay is also presumptive proof of prejudice as the petitioners will be prejudiced in their defence. After all, the number of witnesses for this alleged offence is only 3, as is seen from the complaint. They are all officials of the Government namely, the Food Inspector, the Medical Officer and the Incharge of the Police Post, Kosli and there could not have been any difficulty in securing their presence before the Court to give evidence, but, we find that on a number of occasions, the case has been adjourned due to the absence of the prosecution witness. So if we take into consideration all these factors namely, the delay which is undue, unnecessary and inordinate, the nature of the offence, the number of witnesses, the mental agony to which the petitioners (one of whom was a small boy) have been put, financial loss they might have suffered etc., it is clear that this is a case where the petitioners have been denied the right to speedy trial as guaranteed by Article 21 of the Constitution of India.

The petitioners have also raised the plea that even the allegations do not make out a case against them. According to them, mere slipping away from the shop by the firstpetitioner and the alleged refusal to give details or to cooperate with the Food Inspector by the second petitioner will not mean that the petitioners prevented the Food Inspector from taking sample. But a Division Bench of this Court has held in State of Haryana v. Ratan Lal, 1983(2) RCR 435, that if the accused refuses to give sample and runs away from the shop, and thereby makes it not possible for the Food Inspector to take sample in accordance with law, in such a situation, the Food Inspector is factually hindered from complying with the provisions of the Act. It was, therefore, held that the action of the accused amounts to preventing the Food Inspector from taking the sample.

This apart, we find that the charge has been framed in this case against the petitioner. Therefore, it is no more open to the petitioners to contend that the allegations do not make out an offence against them and therefore the proceedings should be quashed, (Vide decision of this Court in Ashok v. Jauhar v. State of Punjab, 1995(2) RCR 572).

But the fact that charges have been framed against the petitioners, does not stand in the way of this Court in quashing the proceedings on the other ground namely, that the petitioners have been deprived of their valuable fundamental right to have a speedy trial. The learned counsel for the petitioners has relied upon the various decisions in this regard namely, Rameshwar Dass v. State of Haryana, 1993(2) Prevention of Food Adulteration Cases 180; Jai Ishwar v. State of Haryana and Government Food Inspector, Ambala, 1993(2) Prevention of Food Adulteration Cases 167; and Rattan Lal v. State of Haryana, 1995(2) Prevention of Food Adulteration Cases 60. All these cases also arose under the Food Adulteration Act and support the contention of the petitioner.

Therefore, taking into consideration all these factors, I am of the opinion that this is a fit case where the complaint (annexure P1) and the consequential proceedings including the order framing charge against the petitioners (annexure P2) should be quashed.

Resultantly, this petition is allowed quashing the criminal complaint annexure P1 and the consequential proceedings pending before the C.J.M., Rewari including the order annexure P2 framing charge against the petitioners.