PUPPY Vs. STATE
LAWS(J&K)-1993-3-16
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 07,1993

PUPPY Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.)This petilion U/S 561-A of the Cr. P.C. arises in the following circumstances of the case:
(2.)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 14-11-1970 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 11-10-1980. 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 State-respondent. Last of all, on 16-2-1990 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.

(3.)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 non-compliance 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 re-hearing 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 pre-judicially 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 25-10-1993 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 accused-petitioner 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 petitioner-accused 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(1-a) 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 561-A 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 16-2-1990 in absence of the petitioner and his counsel, and he came to know about the said order on 25-10-1993 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.



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