(1.) THIS is a revision application by one Budhram and has been made under the following circumstances; Budhram was prosecuted for an offence under secs. 7/16 (i) and (ii) of the Prevention of Food Adulteration Act in the court of the Sub Divisional Magistrate, Ganganagar on the allegation that on 24-3-65 he was found selling adulterated milk at about 10. 00 a. m. near the crossing of Goshala road in the town of Ganganagar. Shri C. R. Sidana, Food Inspector of the Municipal Board purchased 660 grams of milk from the accused for 0. 56 paise in the presence of the motbirs and he then divided the sample into three phials. He put 16 drops of formalin in each of the phials and then sealed them in the presence of the accused and the motbirs. One phial was handed over to the accused and another was sent to the Public Analyst for chemical analysis and the third one was kept by the Food Inspector. The Food Inspector obtained sanction for prosecution from the Chairman, Municipal Board, Ganganagar and then lodged the complaint against the accused. Three witnesses for the prosecution were examined. P. W. 1 C. R. Sidana was the Food Inspector, and P. W. 2 Chananmal and PW. 3 Shyamlal were motbirs. After recording the evidence the learned trial Magistrate framed a composite charge for the present offence as well as in respect of a previous conviction of the accused for a similar offence. The accused was alleged to have been convicted for a similar offence on 29-10 58 by a Magistrate and on that occasion he was visited with a fine of Rs. 50/- only. The accused did not plead guilty to the charge and claimed to be tried. Accordingly the learned Magistrate afforded him the opportunity of further cross-examining the prosecution witnesses and then eventually the accused was examined under sec. 342 Cr. P. C. on 20-5-66. The accused was questioned about the evidence that was produced against him by the prosecution and was also questioned about his previous conviction in the year 1958. The accused admitted his conviction. The learned Magistrate then called upon the accused to enter upon his defence which he did. The accused examined two witnesses D. W. 1 Banwari Lal and DW. 2 Kundanlal. After considering the evidence on the record the learned Magistrate convicted the accused under secs. 7/16 (i) & (ii) of the Prevention of Food Adulteration Act and sentenced him to one year's rigorous imprisonment and a fine of Rs. 200/-; in default two months' simple imprisonment. The learned Magistrate delivered his judgment on 2-8-66. The accused then went up in appeal to the Additional Sessions Judge, but the learned Additional Sessions Judge dismissed the appeal on 11-10-66.
(2.) IT has been urged by Shri H. M. Lodha appearing on behalf of the petitioner that the trial of the accused stood vitiated on account of the illegality committed by the learned trial Magistrate in bringing in the question of previous conviction of the accused before the stage of conviction in the present case was reached. He submits that the accused having denied the charge when his plea was recorded the only stage at which the question of previous conviction could be brought in would be after the learned Magistrate had found the accused guilty of the present charge. He, therefore, argues that the learned Magistrate was in error in questioning the accused under sec. 342 Cr. P. C. before the proceedings were concluded. He has relied on Trivandrum City Corporation vs. Arunachalam (1) in support of his submission. IT was observed in that case that the charge for an offence of selling adulterated oil could not have been clubbed with the charge for the enhanced punishment. In consequence the learned Judges came to the conclusion that the defect in the charge prejudiced the accused and accordingly the accused could not have been convicted. He has also brought to my notice an unreported judgment of Bhargava J.
I have considered both the Kerala case (1) and the judgment of Bhargava J. With all respect I am unable to share the view expressed by the learned Judges in the Kerala cased) that the question of enhanced punishment could not legitimately be put in the charge to be framed against an accused. This will be clear from what I am going to say in the course of the discussion that follows.
As regards the judgment of Bhargava J. I may notice that it related to a sessions trial. The underlying principle thereof may be alright in so far as it goes, but when there are clear provisions regarding the mode of trial of a warrant case. I need not go to the procedure of a sessions trial for examining what could have been done or what could not have been done by a Magistrate. The matter, in my view, falls to be considered in the light of the provisions of sec. 221 (7), 255a and 511 of the Code of Criminal Procedure. Sec. 221 (7) inter alia provides that if the accused had been previously convicted of any offence and is consequently liable to enhanced punishment and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. It also provides that if such statement has been omitted, the Court may add it at any time before sentence is passed. A perusal of this section, therefore, shows that not only the Magistrate is not prohibited from including the previous conviction in the charge but on the contrary sub-sec. (7) of sec. 221 Cr. P C. contemplates that the fact, date and place of the previous conviction shall be stated in the charge. It has been further provided that if this has been omitted, the Court may add it at any time before the imposition of the sentence. In view of the clear language of sec. 221 (7) Cr. P. C. I am unable to accept the view taken in the Kerala case (1) to be of any assistance in dealing with the present case.
I may next turn to sec. 255a Cr. P. C. This section occurs in the Chapter relating to the trial of warrant cases by Magistrates. The procedure for trial of warrant cases is laid down in the fascicule of sections beginning from 251 Cr. P. C. Sec. 255 provides for the recording of plea of the accused. Then comes sec. 255a and I may read it: "sec. 255 A. Procedure in case of previous convictions.- In a case where a previous conviction is charged under the provisions of sec. 221, sub-sec. (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under sec. 255, subsec. (2), or sec. 258, take evidence in respect of the alleged previous conviction, and shall record a finding thereon. " This section again refers to the provisions of sec. 221 (7) Cr. P. C. and it lays down that if the accused does not admit that he has been previously convicted as alleged in the charge the Magistrate may, after he has convicted the said accused under sec. 255 (2) or sec. 258, take evidence in respect of the alleged previous conviction, and shall record a finding thereon Sec. 255a, therefore, again confirms that the previous conviction as such can be included in the charge to be framed by the Magistrate. However, it provides clearly that in the event of the accused not admitting the charge it shall be permissible to record the evidence of the previous conviction only after the accused had been found guilty either under sec. 255 2j Cr. P. C. or under sec. 258 Cr. P. C. The stage of sec. 258 Cr. P. C. is reached when the evidence for the prosecution as well as the accused has been recorded whereas conviction under sec. 255 (2) Cr. P. C. is recorded on the plea of guilty of an accused. Thus, in my view, sec. 255a Cr. P. C. clearly prohibits the Magistrate from taking any evidence in respect of the alleged previous conviction anterior to the recording of Ending of guilt in respect of the charge under trial, when the accused had pleaded not guilty to the charge. In this context it is to be considered whether on 20-5-66 when the defence evidence of the accused had not even begun, he could have been questioned about the previous conviction. Sec. 342 Cr. P. C. inter alia provides that an accused has to be examined for the purposes of enabling him to explain any circumstance appearing in the evidence against him. Now by force of sec. 255a Cr. P. C. the prosecution is completely precluded from adducing any evidence regarding the previous conviction at that stage. Therefore, there could be no evidence regarding the previous conviction which the accused in his examination under sec. 342 Cr. P. C. could be asked to explain. This shows that without there being the evidence of previous conviction or if such evidence was available then at the stage it could not have been so admitted or taken into consideration. The learned Magistrate had thus clearly fallen into a serious error. Now the mode of proving previous conviction has been provided by sec. 511 Cr. P. C. and I propose to read that section as well: "sec. 511. Previous conviction or acquittal how proved.- In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force: (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was had to be a copy of the sentence or order, or (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered; together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted. " This section provides a special rule of evidence for proving the previous conviction of an accused in addition to any other mode provided by any law for the time being in force. The previous conviction may be proved by production of an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction was had and which is a copy of the sentence or order. This may also be done by production of a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered. It has also been laid down that in either of these cases evidence as to the identity of the accused person with the person so previously convicted has to be established. 5. Now, the Legislature has designedly guarded against the production of evidence regarding previous convictions till a certain stage with a view to ensuring that the mind of the presiding officer does not get affected in any manner. This is, therefore, not an empty formality or technicality which can be allowed to be disre-garded. It may not be possible to gauge how far the production of evidence regarding previous conviction prior to the recording of finding of conviction in the case had affected the court. At any rate, there is no manner of doubt that the court had been swayed by that consideration in imposing the sentence. Looking to all the facts and circumstances of the case, therefore, there is no escape from the conclusion that the accused had been prejudiced by the evidence regarding previous conviction. I am, therefore, of opinion that the conviction of the accused, in the circumstances, was illegal and should not be allowed to stand.
The next question that exercised me was whether I should order a retrial. The incident had taken place in March, 1965, and the accused had not only to face a trial but had to go in appeal to the Additional Sessions Judge and then had come in revision to this Court. Looking to the nature of the case, therefore, I am not inclined to order a retrial.
In the result I accept the revision application, set aside the judgment of the Additional Sessions Judge, Ganganagar dated 11-10-66 and hereby acquit the accused. The accused is said to be on bail and consequently his bail bond shall stand cancelled. If the fine has been deposited by the accused, the same shall be refunded to him. .;