CRIMINAL REVISION NO.101 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 21, 2008 Suresh .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rakesh Nehra, Advocate, for the petitioner. Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. (ORAL) The petitioner has filed this revision against an order passed by Additional Sessions Judge, Rohtak. The facts, in brief, are that Food Inspector accompanied by a Doctor visited the premises of petitioner, Suresh Kumar. He was found in possession of about 90 Kgs. of Semolina (Suji or Rawa) for public sale. Notice was issued to him for taking sample in the presence of witnesses. As per the procedure, the Food Inspector purchased 600 Grams of Semolina for the purpose of sample and CRIMINAL REVISION NO.101 OF 2007 :{ 2 }: paid Rs.4.20P. After mixing the whole contents properly, it was divided into three equal parts and put in three empty, clean and dry bottles. The bottles were stoppered, labelled and then wrapped in a strong thick paper and a paper slip issued by the Local Health Authority bearing Code Number RT-DH-FI/1/F1-2 Serial No.361 and signature of the Local Health Authority was affixed on the bottles from top to bottom. The sample was sent to the Public Analyst, who gave his report, opining that the sample contained ash insoluble in dilute Hcl 0.27% against the maximum prescribed standard of 0.1% and grit 0.19%. Its taste was gritty. It was further observed that the sample contained three living and six dead insects and as such, was found unfit for human consumption. On the basis of above facts, the accused was charged for an offence under Section 7 of the Prevention of Food Adulteration Act, 1954. The accused was summoned to face trial and he put appearance before the Court. The Magistrate tried the petitioner and proceeded to record evidence as a warrant case and fixed the case for recording of pre-charge evidence. After recording evidence of GFI, doctor and Clerk of Local Health Authority, the Magistrate charge-sheeted the petitioner for the said offence and thereafter convicted and sentenced him to undergo RI for 8 months with fine of Rs.1,000/-. In default of payment of fine, he was further directed to undergo RI for 2 months. The petitioner impugned his conviction and sentence awarded to him by filing an appeal. The contention raised before the Appellate Court was that there was an inherent defect in the proceedings conducted by the Trial Court. It was pointed out that CRIMINAL REVISION NO.101 OF 2007 :{ 3 }: report of the Central Food Laboratory was received by the Magistrate, who did not observe that it was a case in which more than one year sentence can be imposed so as to justify his order for proceeding as a warrant trial. In this regard, view was not formed and the proceedings were held as a warrant trial. The observation of the Trial Court in this regard only read “report received. For pre charge evidence, to come up on 12.2.1999.” Reliance was placed on the case of Kuldeep Singh Vs. State of Punjab and another, 1989 (1) Recent Criminal Reports 623 to say that where accused is tried by warrant procedure, without the Magistrate forming any prior opinion in writing that the accused deserved greater dose of punishment, then in the absence of such an opinion, Court should have followed the procedure meant for summary trial. This Court in Kuldeep Singh's case (supra) has held that trial by following warrant procedure, under such circumstance, is illegal and it would not be merely an irregularity. The Court also observed that it will not be a fit case for remand as the incident was six years old and accordingly acquitted the concerned accused in this case. By relying on this judgment, the Appellate Court found that conviction and sentence awarded to the petitioner can not be sustained. However, the Appellate Court, after setting-aside the sentence and conviction of the petitioner, remanded the case back to the Trial Court for holding the proceedings in accordance with law. It is this part of the order, which is impugned by filing the present revision petition before this Court. The incident in this case is dated 28.10.1997. The CRIMINAL REVISION NO.101 OF 2007 :{ 4 }: complaint was filed on 9.1.1998. The petitioner was tried and convicted on 8.6.2005. Thereafter, he filed an appeal, which was decided on 20.11.2006. The present revision petition is pending since 9.1.2007. Thus, it is seen that the petitioner is facing the agony of this trial since the year 1997. There is not much dispute that the procedure adopted by the Magistrate can not be sustained. In fact, it has been so held by the Appellate Court and conviction and sentence awarded to the petitioner was set-aside. The State has not raised any grievance against this view taken by the Appellate Court. The grievance of the petitioner is that since he has faced the protracted trial, it will not be fair to direct his re-trial as has been done by the Appellate Court. Learned counsel for the petitioner would refer to the observations made by this Court in the case of Kuldeep Singh's case (supra) to say that failure on the part of the Trial Court to follow the correct procedure and law goes to the root of the case. Having held so, the Court further found that the trial in the said case had commenced in May 1982 and the petitioner has already undergone agony of trial for more than 6 years. Accordingly, it was not felt necessary to remand the case for re-trial. The petitioner is facing the agony of trial in the instant case for the period of almost 11 years by now. It would, thus, not be fair to send the case of the petitioner for re-trial. Following the dictum of law as laid down in Kuldeep Singh's case (supra), the part of the impugned order whereby the petitioner has been directed to face re-trial, is set-aside. Since the conviction and sentence awarded to the petitioner is in violation of CRIMINAL REVISION NO.101 OF 2007 :{ 5 }: the procedure as envisaged, the same has already been set-aside. The petitioner accordingly stands acquitted of the allegations made against him. The revision petition is accordingly disposed of. October 21,2008 ( RANJIT SINGH ) khurmi JUDGE