1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 206 OF 2010 Dattaprasad s/o Brijlal Lohiya, Aged 38 years, Occupation Business Vendor and Propritor of M/s. Lohiya Pan Material, Bhavani Peti, Murud, Taluka and District Latur. Petitioner V E R S U S The State of Maharashtra, at the instance of I.M. Kamliwale, Supervisor (Food), Food and Drugs Administration (M.S.), Central Administrative Building, Latur. Respondent Smt. Anjali Bajpal Dube, Advocate for the petitioner Mr. D.R.Korde, A.P.P. for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 21st April, 2010 J U D G M E N T 1. Rule. Rule made returnable forthwith. By consent, taken up for final hearing. 2. This Writ Petition is filed against the orders passed by the learned Chief Judicial Magistrate, Latur, in Regular Criminal Case No. 614 of 2009. The petitioner is the accused in this case. The State of Maharashtra, at the instance of Supervisor (Food), Food and Drugs 2 Administration (M.S.), Central Administrative Building, Latur, has initiated this case, alleging that the petitioner stored and sold adulterated food article viz. Bhatti Kattha, in contravention of the provisions of Section 7 (i) read with Section 2 (ia) (a), Section 2 (ia) (m) and Section 2 (ia) (j) and Section 7 (v) read with Rule 29 punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 (for short, the said Act). The case was filed in the year 2002, and it remained pending for quiet some time. On 12th November, 2009, the learned Chief Judicial Magistrate thought it desirable to try this case as summary trial and passed am order to that effect. On the very day, the learned Chief Judicial Magistrate recorded plea of the petitioner and started recording evidence of the prosecution witnesses. On 1st November, 2009, depositions of two more witnesses were recorded. But, on 7th January, 2010, the petitioner’s Advocate moved an application to recall the order, directing the case to be tried as summary trial, which was passed, as said above, on 12th November, 2009. The learned Chief Judicial Magistrate rejected this application on two grounds; firstly, that the depositions of two prosecution witnesses were already recorded, and the deposition of third prosecution witness was going on, and secondly, the petitioner did not clarify, as to why the case should be tried as ‘regular trial’ and not as ‘summary trial’. 3 Section 16-A of the Act gives power to the learned Chief Judicial Magistrate to convert certain cases filed under the Act to try them as summary trial. Section 16-A reads as under: “16-A. Power of court to try cases summarily – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall as far as may be, apply to such trial: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year : Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.” On the face of it, this provision limits as to which cases a Chief Judicial Magistrate could be tried in summary way. He could try cases in which offences are punishable under sub-section (1) of Section 16 in summery way. The question before the learned Chief Judicial Magistrate on 12th November, 2009 was, whether the offences alleged against the petitioner are punishable only under sub-section (1) of Section 16 of the Act? 4 The impugned order dated 12th November, 2009, does not indicate that the learned Chief Judicial Magistrate applied his mind and examined the allegations made against the petitioner, and, tried to find out as to under which sub-section of Section 16 of the Act, the petitioner is charged. After the food article Bhatti-Kattha was purchased by the complainant, it was sent for chemical analysis, and, the Chemical Analyzer, it seems, opined inter alia that the sample was found to contain certain prohibited colours. In view of this particular contravention, the petitioner is said to have adulterated an article of food, as provided under Section 2 (ia) (j), which is made punishable under Section 16 (1-A) of the Act. Section 16 (1-A) of the Act prescribes sentence of imprisonment for a term which shall not be less than one year but which may extend to six years and with fine etc. The scheme of Section 16 clearly indicates that the penalties provided under Section 16 (1) are in respect of relatively less serious offences, whereas the penalties provided under Section 16 (1-A) are in respect of more serious offences. As said above, the learned Chief Judicial Magistrate could not have utilized his powers under Section 16-A to convert this case into summary trial. the learned Chief Judicial Magistrate in the first place should not have passed the impugned order dated 12th November, 2009, and at least should have corrected 5 his error when he was requested to do so on 7th January, 2010. At least on that day, the learned Chief Judicial Magistrate should have examined the provisions of Law to find out as to whether he should have converted this particular case into a summary trial. The learned Advocate appearing for the petitioner also committed an error by making the application, in over simplified manner. In this application no provisions of law are referred to, on the basis of which, he was trying to correct the error committed by the learned Magistrate. However, the learned Chief Judicial Magistrate could not have stated in his order, that since the provisions of Law are not shown to him, he would not pass the desired order. The petition thus should succeed. The impugned orders dated 12th November, 2009 and 15th January, 2010 deserves to be set aside. The learned Magistrate should be directed to try the case as regular trial. However, this Court should given one concession to the respondent, the prosecution. While the case is now being converted into a regular trial, it would be tried as per the provisions of Section 244 of Code of Criminal Procedure onwards. The evidence that is recorded so far, should be considered as the evidence before charge recorded under Section 244 of Code of Criminal Procedure. The respondent / prosecution deserves liberty to record further evidence, if they want, as evidence before charge. Needless to add is 6 that the petitioner would have his right to enter his defence, as per Section 247 of Code of Criminal Procedure, and recall the prosecution witnesses for further cross-examination, if he desired. In view of the above discussion, writ petition is allowed. Both the impugned orders are set aside. The learned C.J.M. Shall conduct this case as regular trial. Rule made absolute. sd/- (A.V. NIRGUDE, J.) srm/criwp/206/10/ok