Kundan Singh, J. - (1.) THIS is a review/recall/modification application of the order dated 8.12.93 passed in Civil Misc. Writ Petition No. 43272 of 1993 on the grounds: (1) that the Prevention of Food Adulteration Act, is a special enactment having special procedure and it is precise and exact in respect of fulfillment of the particular object which will override the general provisions; (2) that a right decision by a wrong forum is nullity and is no decision in law, e.g. if any matter to be decided by a Division Bench is decided by a Single Judge, then the decision of the Single Judge would be without jurisdiction; (3) that where it is established that the litigation is sham, illusory, collusive and inspired by nefarious and vexatious design, Courts not only have jurisdiction but owe a duty to throttle such litigation at the threshold, and lastly (4) that the Magistrate has violated the statutory provisions of Sec. 16A of the Prevention of Food Adulteration Act in -as -much as he straightway proceeded with the case as a warrant instead of summary trial. Since all the grounds urged by the learned counsel for the petitioners are interconnected and resolve round the question of violation of the provisions of Sec. 16A of the Act, they are being taken up together rather dealing with them separately. His contention is that the provisions of Sec. 16A of the Act provide that hot -with -standing anything in the Code of Criminal Procedure, 1973 all offences under Sub -section (1) of Section 16 of the Act shall be tried in a summary way by a Judicial Magistrate the first class specifically empowered in this behalf by the State Government or by a Metropolitan Magistrate and if 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 as 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, then the Magistrate shall after hearing the parties record an order to that affect 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 whereas in the present case rather resorting to that procedure contained in Sec. 16A the learned Magistrate has straight -way proceeded with the case as a warrant trial and hence the entire proceedings being in violation of the statutory provisions of Sec. 16A of the Act are without jurisdiction and nullity and liable to be quashed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. In support of that contention he relied upon the following decisions: - Mahavir Prasad v. State of Haryana, 1989 E.F.R. 450, 459; Brijpal v. State of Haryana, 1989 E.F.R. 449; and Roshan Lal v. State of Haryana 1988 E.F.R. 608.
(2.) ALL the above three decisions are based on the ratio of decision of the Full Bench of Punjab and Haryana High Court in the case Budhram v. State of Haryana, 1984 E.F.R. 558. The Paragraphs 56, 57 and 58, which are relevant for the purpose of controversy raised of the present review petition, of the Full Bench Decision in the case of Budh Ram (Supra) are quoted below: - - 56. In view of the above, the question of construction of Section 16A is at large and shall have to be attempted on first principles. The Legislature, in my view introduced summary trial primarily for the reason to enable the Courts to expeditiously bring to book the offender. Only a quick retribution can serve the objective of deterring would be offenders from committing the given crime which was not only highly unsocial in character but it exhibited the tendency of assuming menacing proportions. Since the summary trial inherently happens to be less fair than regular trial the Legislature proceeded to provide one benefit to offenders who are tried summarily that in their case the maximum dose of sentence would not increase more than one year rigorous imprisonment but if the offence was such that it required a dose of sentence higher than what could be awarded as a result of summary trial the Legislature authorised the Magistrate to say so in writing and then proceed to try the offender in accordance with the procedure prescribed by the Criminal Procedure Code. 57. From the above, it is quite clear that i.e. Legislature intended that all offences under Section 16(1) of the Act be tried summarily by specially authorised Magistrate, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. So, unless they are specially so empowered the question of their holding summary trial would not arise. However, once the Judicial Magistrate are specially so empowered, then they cannot discriminate between one case and the other and they shall have to try every offence under Section 16(1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result of summary trial then in that case after passing such an order in writing would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence. 58. For the sake of clarity, it would be desirable to enumerate the answer that has been proposed for the propositions set down in the beginning of the judgment. We hold that: - - (1) Milk is not a primary food within the meaning of Section 2(xii) a of the Prevention of Food Adulteration Act. (2) The purchase by the Food Inspector in terms of Section 10 of the Act of a sample of milk or sugar or tea kept by a tea vendor not for sale as such but for being used in preparation of tea for being served to his customers amount to a sale in terms of the provisions of Section 7 read with Section 2(xiii) of the Act. (3) A report of Public Analyst to be considered as admissible in law as such report, does not have to contain information regarding the mode and manner of tests that the Public Analyst had carried out in order to judge whether the sample was adulterated or not. It is enough if he indicates in the report the results of the tests carried out by him. (4) The holding of summary trial of offences under Section 16(1) of the Act is not mandatory until such time Judicial Magistrates are specially empowered in this regard. Once they are so empowered, then every case under Section 16(1) in the first instance shall mandatorily be tried in a summary way unless the Magistrate for the reasons mentioned in the said provision considered it necessary to try the offender in accordance with the procedure prescribed by the Criminal Procedure Code. I have considered the above submissions of the learned counsel of the petitioners and I am afraid to accept them for the following reasons: - (1) Under the provisions of Section 16A of the Act, a Judicial Magistrate of the first class specially empowered by the State Government is required to proceed with the case at the first instance in a summary way. After recording the whole evidence of prosecution, he will form an opinion that the sentence of imprisonment of a term more than one year would be desirable, then he would record an order to that effect and will proceed with the case as a warrant trial. He will recall witnesses and rehear the case in -as -much as the second proviso to this section says - -"provided further that when at the commencement of, or in the course of, a summary trial under this section.......". The trial commences on the day the accused appears or is brought before him. As soon as the accused appears or is brought before him, the Magistrate may form an opinion without examining any witness of the prosecution that it is a case of such nature which should be tried as a warrant trial or that a sentence of imprisonment for a term exceeding one year may be passed otherwise after hearing the case in a summary way the Magistrate will have to proceed with the case as a warrant trial by recalling the witnesses and rehearing the case would amount to wastage of public money and time. (2) A Magistrate of first class not specially empowered to try the case under Sec. 16A of the Act in a summary manner is not required to try the case as a summary trial. The provisions of Sec. 16A do not prevent the Magistrate of first class or any other Magistrate to proceed with the case as warrant trial. On the other hand sub -section (2) of Sec. 2 of the Act empowers the Judicial Magistrate of first class and Metropolitan Magistrate to try the case but no procedure has been provided by the Act to be followed by them. In other words, any first class Magistrate, who is not specially empowered to try the case under Sec. 16A will proceed with the case as a warrant trial straightaway. If they are specially empowered by the State Government under Sec. 16A of the Act only then they will try the case summarily at the first instance otherwise the case will be tried as a warrant trial in the very first instance.
(3.) IN the present case the petitioner has neither alleged in the writ petition nor has he stated at any stage that the Magistrate who is seized with the case was specially empowered to try the case in a summary way under Sec. 16A of the Act nor any copy of the order sheet has been filed to show that at what stage of the proceedings the Magistrate has decided to proceed with the case as a warrant trial. I do not dispute the ratio of decision laid down by the Full Bench of Punjab & Haryana High Court in the case of Budhram (Supra) but unless the above facts are established, no benefit of that decision can be extended to the petitioners. (3) From the complaint it appears that the sample of the food article taken falls within the definition of clause (i) of Sec. 2(ia) of the Prevention of Food Adulteration Act, which reads as under: - - (i) if the container of the article is composed, whether wholly or in part, or any poisonous or deleterious substance which renders its contents injurious to health.;