State of Haryana vs Subhash Chand

Jasbir Singh, J.

The State of Haryana has filed this appeal against the order dated December 18, 1990 vide which the respondentSubhash Chand was acquitted of the charges framed against him.

Brief facts of the case are that the respondent was summoned to stand trial for commission of offences punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short, the Act) on the basis of a complaint filed by the Food Inspector. The case against the respondent is that on February 09, 1984, complainantFood Inspector visited his shop and he was found in possession of 12 kg. of unindicated milk. The Food Inspector purchased 660 mls. of milk against payment. The milk so purchased was put in three bottles and after complying with the formalities, one bottle/sample was sent to the Public Analyst, Haryana at Chandigarh for its analysis. The remaining two samples were kept as per rules. On receipt of the Public Analyst''s report, it was fund that the sample was adulterated and there was deficiency of 9 per cent milk solids not fat. The trial Court proceeded with the trial as a warrant case. When the trial was going on, the trial Magistrate found that wrong procedure had been adopted, inasmuch as, the charge was framed against the respondent twice and evidence was accordingly recorded in a very wrong manner. After taking note of the wrong procedure adopted, the respondent was acquitted vide order dated December 18, 1990 which is under challenge in this appeal.

Shri G.P.S. Nagra, learned Assistant Advocate General, appearing on behalf of the State, has contended that the reasoning given by the trial Court is not justified. The charge was framed only once and not twice as had been observed by the trial Court. In the alternative, he argued that since no prejudice was caused to the respondent, he was wrongly acquitted. He, therefore, prayed that the appeal be allowed.

On the other hand, Shri V.B. Aggarwal, learned counsel appearing for the respondent, contended that the reasoning given by the trial Court is perfectly justified. Due to wrong procedure, trial continued for about six years and is this way, prejudice had definitely been caused to the respondent and he was rightly acquitted by the trial Court. He, therefore, prays that the appeal be dismissed being without any merit.

After hearing learned counsel for the parties and having perused the record with their assistance, this Court is of the opinion that the observations of the trial Magistrate are correct. By taking note of the facts, as existed on record, the trial Judge opined as under :

"11. As referred above, the then learned Chief Judicial Magistrate vide his order dated 21.8.1984 had ordered that since sentence in this case of more than one year was likely to be passed, it would be tried as a warrant case. Consequently, it proceeded as a warrant case. Precharge evidence was recorded, charge was framed and witnesses were called in aftercharge evidence. P.W. 1Dr. J.S. Sohi had appeared whose examinationinchief was recorded. Baldev Raj, Head Clerk from the office of Local Health Authority had also appeared as P.W. 3. Shri I.N. Sehgal who had appeared as P.W. 2 in precharge evidence had also appeared and he was crossexamined by the accused. But all of a sudden, when the case was fixed for remaining evidence of the complainant, complainant again appeared as P.W. 1 and his statement was recorded assuming that it was being recorded in precharge evidence. His statement was recorded on 7.11.1988 and on the same date, precharge evidence was closed by the complainant and again the accused was chargesheeted for the same offence, and consequently remaining witnesses were again recorded in aftercharge evidence by the learned Chief Judicial Magistrate, Karnal. This case was received in this Court by way of transfer on 23.4.1990 when the case was fixed for remaining evidence of the prosecution.

The whole of the trial of the present case is vitiated by adopting illegal procedure. Once the case was being tried as a warrant case and the accused had already been chargesheeted, there was no need to again record the statement of the complaint in precharge evidence and to reframe the charge against the accused. In these circumstances, I have two options. First is to acquit the accused and the second is to order de novo trial."

After hearing learned counsel for the parties and having perused the record with their assistance, this Court is of the opinion that the opinion arrived at by the trial Court was perfectly justified. It is apparent from the record that a wrong procedure was adopted by the trial Court and because of that, trial continued for a period of more than six years. Due to some wrong action on the part of the trial Court, respondent continued to face a protracted trial and now this appeal is pending against him since 1990. In State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775 , a Division Bench of this Court while deciding an appeal against the acquittal opined as under :

"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166 which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."

Shri Nagra has failed to show anything on the basis of which it can be said that the opinion of the trial Court was perverse or is based on misreading of evidence. Consequently, the appeal fails and is dismissed.