Puppy vs State

This petilion U/S 561A of the Cr. P.C. arises in the following circumstances of the case:

Against the petitioner a complaint came to be filed by the Food Inspector, Jammu U/S 7 read wish Section 16 of (he Prevention of Food

Adulteration Act, hereinafter referred to as "Ad", in the Court of Special Municipal Magistrate, Jammu on 4.9.1975. The petitioner pleaded not

guilty to the charges. The prosecution produced two witnesses only, both of whom were employees of the Municipality. The trial court believed the prosecution case and convicted the petitioner and sentenced him to rigorous imprisonment of six months and a fine of Rs. l,000/and in default of payment of fine, three months simple imprisonment more. The said judgment was delivered on 14111970 and She petitioner sent to jail. He filed an appeal against the said judgment and the appellate Court admitted him to bail after undergoing imprisonment for fourteen days. However, the appeal came to be dismissed on 11101980. He filed a revision petition in the High Court against the judgment and order of the learned Session

Judge dismissing his appeal. The revision was admitted in 1980 and notice issued to the Staterespondent. Last of all, on 1621990 the revision came io be listed before a bench, when neither the petitioner and nor his counsel were present. The Court dismissed the revision without hearing either the petitioner or the respondent, as none of (hem was present on that day, and recorded a finding that no illegality was committed by (he

Courts below in finding the petitioner guilty and sentencing him as per their judgments.

Consequently, the petitioner was arrested and sent to jail to suffer the remaining period of sentence. He remained in jail for the second time for

more than a month.

From the jail, the petitioner filed this petition, raising the following grounds:

(i) That the trial Magistrate relied on the witnesses who were both Municipal Employees and no independent witness was produced before the

Court of the Special Municipal Magistrate by the prosecution. Even the complainant did not call for any person to be present and to take his signature as required under Section 10(7). These persons were available on .spot as per the statement of the complainant, but were not cited and hence the noncompliance of the mandatory provisions of the Act;

(ii) That there is also a violation of the mandatory provision of Section 11 of the Prevention of Food Adulteration Act, The courts below as also the

Hon'blc Single Judge of the Hon'ble High Court passed the order without hearing the petitioner, and in such circumstances, the rehearing of the criminal Revision petition has become essential for the ends of justice;

(iii) That the violation has also been made of Section 13 of the said Act as the copy of the report of the result of the analysis was not supplied to

the petitioner within the period of SIC ten days from the date of institution of the complaint in the court. Hence the proceedings were not sustainable and liable to be quashed under the inherent power of this Hon'blc Court on the basis of the abuse of process of the Court and to secure

the ends of justice;

(iv) That as the basic original order of the trial court of sentence and imposing fine is without jurisdiction and Hon'ble Single Judge has not afforded

any opportunity of being heard and decide the case without hearing the petitioner, in such circumstances the judgment can be treated as not valid in law and should be open to reconsideration at the instance of the petitioner being prejudicially affected;

(v) That the petitioner was 33 years of age at the time of alleged occurrence in 1975, and at present he is 50 years old and father of 5 children,

three of them including two daughters are of marriageable age. The petitioner is a poor nomadic Gujjar, no one is there to look after the children,

wife and cattle. Besides this fact, there is no earning member in the family and the petitioner had already undergone 14 days imprisonment at the appellate stage and since 25101993 he is in Central Jail, Jammu as such he has already undergone 45 days of imprisonment till 22.11.1993. In such circumstances, the pditioner should be released in the interest of justice;

(vi) That it is the first offence of the accusedpetitioner as he has not committed any offence in the past. He faced criminal proceedings for about 17

years since 1975 and already remained in jail for the first time for 14 days, and for the second time for the last 28 days. He has undergone 45 days

in jail so far:

(vii) That the petitioner has been penalised for the negligence of his counsel, who did not appear in the Hon'ble court and neither he told the

petitioner to be present in the court;

(viii) That the petitioneraccused is also seeking the relief of Section 562 Cr.P.C. on the ground that he is not under twenty one years of age and is

not convicted of an offence punishable with imprisonment for more than seven years. There is no previous conviction against him, and he being of good character is entitled to be released on probation of good conduct, and this Hon'ble High Court has powers to grant the relief to the petitioner under this section, while he was deprived of the same when the revision petition of the petitioner was dismissed in absence of (he petitioner and his

counsel.

(ix) That the petitioner is also seeking the relief of justice from this court under section 562(1a) to release him with admonition on the basis of his

age, character antecedents in the interest of the justice;

(x) That this Hon'ble Court can grant relief of probation of good conduct to the guilty of an offence under a special or local Act to the petitioner

being the first offender;

(xi) That there is no other remedy with the petitioner to agitate the matter at any forum except the Supreme Court, and the petitioner is not is a

economical condition to move to the Supreme Court, hence the petition under this Section for the ends of justice;

(xii) That the Sections 561A and 562 of the Criminal Procedure Code are applicable at any stage of the case and no bar or prohibition of

applications of these sections after the conviction therefrom, hence the relief can be granted by the Hon'blc Court for the interest of the justice;

(xiii) That as the Hon'hle High Court passed the order of sentence on 1621990 in absence of the petitioner and his counsel, and he came to know

about the said order on 25101993 when he was arrested by the police concerned and now he is in Central j iil,Jammu in such circumstances he is seeking the above said relief at this stage and time from the date of his arrest, hence there is no deliberate or intentional delay in filing the present petition before this Hon'ble Court.

I have heard the learned counsel for the petitioner and have also examined his written arguments. T have gone through the file and the record.

Nobody appeared for the respondentState to reply the argument of Mr. Asgar and nor any written reply was submitted by them. Mr. P.C. Sharma

Govt. Advocate had appeared before the Registry in pursuance of notice issued to the respondent. He did not, however, put in his appearance when the case was taken up for hearing. Mr. Asgar was directed by this Court on ll21994lo furnish a copy of his written arguments to the learned

Advocate General for submitting his reply. The copy appears to have been given to the office of the Advocate General, but no reply was filed within the stipulated period and nor any extension sought in this behalf.

From the perusal of record, it is manifest that the criminal revision filed by the petitioner was dismissed when neither he and nor his counsel was

present. Even, nobody was present on behalf of the State. Not only that, even a finding came to be recorded that the judgments of the lower

Courts do not suffer from any illegality. Firstly, there is no provision for dismissing a criminal revision in default, and secondly, a finding could not be legally recorded without hearing the petitioner. No doubt the revision has not been dismissed in default, but without hearing the petitioner it has been shown dismissed on its merits. In my opinion, in absence of the petitioner and without hearing him, the revision could not be decided on

merits. The revision was listed for hearing after ten years of its admission and, therefore, the petitioner could not be aware of the said date. The

Court should have either issued a notice to him or used coercive measures to procure his presence before deciding the revision. The dismissal of the revision has resulted in maintaining the conviction and sentence as recorded by the learned trial court. In my opinion, therefore, the pcttiioner has rightly sought the exercise of inherent powers of this court U/S 561A of the Cr. P.C. in order of prevent abuse of the process of Court, or otherwise to secure the ends of justice.

I have given my serious consideration to the matter, and T think, injustice has been caused to the petitioner by dismissing his i ""vision on merits

without affording him any opportunity of being icard. In exercise of my inherent power U/S 561A of the Cr. P.C. and in order to prevent abuse of the process of Court or otherwise secure the ends of justice. I have reheard the learned counsel for the petitioner on the merits of the revision

petition. I have thoroughly examined the judgments of the trial court and the appellate Court, and have gone through the whole record.

Admittedly, the complaint was filed against the petitioner as far back as on 4.9.1975, i.e. about more than 18 years ago. He was convicted by

the learned (rial court on 14.11.1979, i.e. about more than 14 years ago. His appeal was dismissed by the learned Sessions Judge on 11.10.1980,

i.e. about more than 13 years ago. He filed the revision in October, 1980 itself which came to be admitted. It remained pending in the High Court for the last more than twelve years. Once it was listed for hearing before the bench, When the petitioner was not knowing about it and he was not

present, it came to be dismissed without affording him an opportunity of being heard. After all, how could the illiterate poor Gujjar know the date of its listing in the cause list after a lapse of twelve years when no notice was issued to him about its listing for hearing.

Now, the crux of the matter is as to whether the judgments of the trial court and the appellate court suffer from any illegality, impropriety or

incorrectness causing miscarriage of justice. In this regard, I think a glaring impropriety committed by the learned courts below is that it has believed the prosecution witnesses and based their findings on their evidence, without seeking any corroboration from an independent piece of

evidence. There are only two witnesses of the alleged occurrence, one is Himat Singh Food Inspector and the other Shri Pritam Das Chowkidar

Municipality. No other witness was either cited by the prosecution or examined by the Court. I have examined their testimony which in some material particulars differs from each other. The Chowkidar has become more loyal than the king. According to him, he alongwith other residents of Bakshi Nagar had purchased milk from the petitioner and found it bad. They informed Himat Singh Food Inspector about the matter, who came on the spot and initiated proceedings against him. None of the residents of BakshiNagar, who allegedly found the milk of the petitioner as bad or in whose presence the Food Inspector allegedly took samples of milk from the petitioner and fulfilled other necessary Icj: il formalities, has been cited as a prosecution witness. Shri Pritn11 Dass PW is actually the complainant of the case, as according to him,it was at his behest that proceedings were initiated against the petitioner by the Food Inspector. He has a dual capacity in the case,being the Chowkidar of the Municipality and the complainant as well. He is definitely a partisan witness and has had a grudge against the petitioner. His evidence, therefore, is tainted and could not be relied upon without sufficient corroboration by some impartisan witnesses. According to him, so many persons were present when the alleged occurrence took place, but none of them has been cited as a prosecution witness. So for as the Food Inspector is concerned, he is admittedly a partisan witness. His evidence also could not be relied upon without any corroboration by any independent witness. It is thus manifest that both the prosecution witnesses are partisan witnesses and it was not safe to believe their testimony without any impartial and independent witness,

particularly, when a person was sought to be convicted of a criminal offence. The petitioner is, admittedly, an illiterate person and belongs to a backward class of Gujjar community, hailing from a village. Who knows as to whether the milk was actually seized from him or not. For that it was imperative for the prosecution to produce some independent and impartial witness to establish that the milk was actually sei/ed and the necessary legal formalities as prescribed by law performed in their presence Nothing of the sort has been done and unfortunately the courts below have not considered this matter at all. After all, the Food Inspector and his Chowkidar, the only two witnesses examined in case, are interested witnesses and both of them zealous enough to get any poor person convicted to get laurels from Iheir superior authorities. They did not deserve as much credibility as has been attached to their testimony by the courts below. Their evidence has been taken as a Gospel truth by the learned courts below without bothering to consider the fundamental principles of the law of evidence. Normally, the testimony of an interested and partisan jvitness cannot be relied upon, unless it is corroborated on material particulars by some impartial and independent evidence. This is the basic law of

evidence, and it is not safe to ignore its sanctity.

Moreover, it is the mandate of Section 10(7) of the Prevention of Food Adulteration Act that one or more witnesses of the alleged occurrence

should corroborate the prosecution case. As already noticed, not a single independent witness has corroborated the prosecution case. In this view of the matter, the conviction recorded against the petitioneraccused is violative of section 10(7) of i he Act. Not only that, the report of the analyst has not been furnished to the petitioner, which was mandatory for the prosecution to do. This has definitely caused prejudice to him, and therefore,

the conviction recorded against him is violative of Section 13 of the Act.

In these circumstances of the case, in my opinion, the prosecution has failed to bring home the offence to the petitioneraccused beyond any

reasonable doubt. He has been convicted on an evidence, which though admissible, is not reliable. For convicting an accused person of a criminal

offence, the case must be proved beyond any shadow of doubt, is the admitted position in the Criminal Law. This important aspect of law has been given go by the learned courts below, and thus committed an impropriety in finding the petitioner as guilty, resulting in great injustice to him.

He has already suffered a sentence of more than 45 days and faced mental and physical agony of litigation for more than 18 years, and probably,

for no fault of his. The evidence of prosecution itself was based on partisan evidence. No impartial and independent witness was cited in the

complaint itself.

The result is, that the revision succeeds. I give the petitioneraccused the benefit of doubt and acquit him of the charges framed against him. He is discharged from his bail bonds. Let the file be consigned to records.