S.D.BAJAJ,J - (1.) ACCUSED petitioner Girdhari Lal is alleged to have prevented Government Food Inspector, Sonepat, from taking a sample of red chillies powder from his shop situated in Arya Samaj Chowk, Model Town, Sonepat, for sale on 18th February, 1982. On being prosecuted for the lapse aforesaid, learned trial court vide its judgment dated 10th October, 1987 convicted accused petitioner of the commission of the offence under section 16(1) (c) of the Prevention of Food Adulteration Act, 1954 and sentenced him to undergo rigorous imprisonment for a period of 8 months and to pay Rs. 1000/- as fine. In default of payment of fine accused petitioner was ordered to undergo rigorous imprisonment for a further period of 4 months.
(2.) VIDE appellate judgment dated 19th May, 1989 in Criminal Appeal No. 18 of 1987 learned Additional Sessions Judge, Sonepat, held that summary procedure having not been followed by the learned trial court, impugned judgment of conviction and sentence delivered by it against the petitioner on 10th October, 1987 was vitiated. Accordingly the case was remanded to the learned trial court for fresh decision according to law; after following summary procedure. Against the order of remand accused petitioner has filed Criminal Revision No. 562 of 1989 in this Court urging that on account of his having undergone the agony of prosecution for over 8 years by now learned appellate court ought to have ordered his acquittal instead of remanding back the case to the learned trial court for fresh decision after observing summary procedure. This Court has repeatedly hold in Badh Ram v. State of Haryana, 1985 Criminal Law Times 372, Brij Pai v. The State of Haryana, 1989(1) Chandigarh Law Reporter 568 and Mahabir Parsad v. The State of Haryana, 1989(1) RCR(Crl.) 182 (P&H) : 1989 Criminal Law Times 21, "From the above, it is quite clear that the Legislature intended that all offences under Section 16(1) of the Act be tried summarily by specially authorised Magistrates, 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 P.C. 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 could not arise, However, once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other; 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, they would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence.
(3.) ADMITTEDLY , in the present case the trial Magistrate neither applied his mind that greater sentence was to be awarded to the offender, than could be awarded as a result of the summary procedure, not, any such order was passed in writing. It was thus, obligatory on the part of the Magistrate to try the accused summarily, and follow appropriate procedure in that regard. Thus, in the instant case, the trial, which was held as a warrant case, was not in accordance with law.;