M.B.SHARMA,J. - (1.) THE learned Additional Sessions Judge, Bharatpur under his judgment dated April 18, 1984 dismissed the appeal of the accused -petitioner both in respect of his conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act) as well as his sentence of one year's rigorous imprisonment and a fine of Rs. 1000/ - or in default of payment of fine to further suffer simple imprisonment for one month. The said conviction was recorded and sentence was inflicted on the accused petitioner by the Chief Judicial Magistrate, Bharatpur under his judgment dated June 10, 1983.
(2.) HARI Dutt Sharma PW 1 was the Food Inspector, Bharatpur on May 7, 1981. On that day he saw that the accused -petitioner was carrying milk for the purposes of sale and near Dak bungalow, Bharatpur, he (Hari Dutt Sharma) introduced himself to the accused -petitioner and disclosed his identity as Food Inspector and purchased 660 ml. milk after paying its price. The sample was divided in three equal parts and was kept in three clean bottles and 18 drops of formaline was mixed in each bottle and they were sealed and were sent to local Health Officer for analysis. The sample reached to the Public Analyst on May 7, 1981, i.e., the same day it was taken from the accused petitioner. It was analysed by the Public Analyst and as per his report dated May 9, 1981 he found as under: Fat contents : 9.5%Solid non -fats : 4.0%Starch : AbsentSugar : Absent As per the report of the above Analysis the Public Analyst under his report dated May 9, 1981 came to the conclusion that the Sample of milk was adulterated due to its containing of about 53% of added water. After obtaining the consent under Section 20 of the Act for initiation prosecution against the petitioner, a complaint was tiled before the Chief Judicial Magistrate who tried the accused -petitioner, who pleaded not guilty to the charge On behalf of the prosecution the statement of Hari Dutt Sharma and Ramji Lal were recorded. Thereafter, the accused petitioner was examined under Section 313. Cr.PC to explain the circumstances appearing against him in the statement of the prosecution witnesses. He however, denied that any sample was taken from him. In answer to the last question the accused -petitioner came out with a plea that he does not sell the milk and he was taking the milk to his relation Shibbo because there was a programme of 'KATHA' in his house and he had be n invited there. According to him, he carried 5 -7 kg. Milk. The accused examined two witnesses in his defence, namely, Shibbu and Vipti The learned Chief Judicial Magistrate as already stated convicted and sentenced the accused petitioner as mentioned above and the appeal preferred by the petitioner against his conviction and sentence was dismissed. The first contention of the learned Counsel for the petitioner is that by virtue of Section 16A of the Act the case could have been tried summarily but had not so been tried. It is also contended that if the law prescribes a particular procedure for trial of cases then the same procedure must be followed. It appears that such a plea was not raised before the trial court or before the appellate court. Be that as it may, there can be no dispute that the Chief Judicial Magistrate has been authorised to try cases appears to have been tried by the learned Magistrate having jurisdiction in the matter, though instead of trying the case summarily a procedure of warrant cases has been adopted, the question is whether in such case can it be said that trial can be held by the learned Magistrate without jurisdiction. Under Section 16A of the Act all offences under Sub -section (1) of sections 16 of the Act 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 Section 262 to 265 (both inclusive) of the Code of Criminal Procedure shall as far as may be apply to such trial. The second proviso to Section 16A of the Act empowers the Magistrate who is authorised to try the cases summarily that when at the commencement of or in the course of a summary trial under Section 16A of the Act 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 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 Code of Criminal Procedure. Thus even if at the commencement of the summary trial the Magistrate thinks it undesirable to try such a case summarily, he 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 Code of Criminal Procedure. Thus, the question is if the Magistrate without hearing the parties and without recording the order of affording opportunity to the parties on the question tries the case straight way as a warrant case, whether it renders the judgment of the learned Magistrate without jurisdiction? A look at Chapter XXXV of the Code of Criminal Procedure will show that the said chapter contains (he provisions in respect of irregular proceedings Under Section 461, Cr.PC if any Magistrate not being empowered by law in this behalf does any of the things mentioned in cl. (a) to (q) of Section 461 Cr.PC then his proceedings shall be vitiated. It has already been said earlier that the Chief Judicial Magistrate in Rajasthan have been empowered to try cases summarily Section 465, Cr.PC is relevant. Sub -section (1) of 465, Cr.PC provides that subject to the provisions here in before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any irregularity in any sanction for the prosecution unless in the opinion of that court a failure of justice has in fact been occasioned thereby. Therefore, even if the accused should have been tried summarily by virtue of Section 16A of the Act by the Magistrate authorised in that behalf, and the learned Magistrate at the commencement of the proceedings does not give an opportunity to the parties of hearing on that question and does not record an order that it will be undesirable to try the case summarily, and instead of trying the case summarily tries it as a warrant case, the accused will have to show that by adoption of that procedure failure of justice has been occasioned. In the instant case no such failure of justice has been occasioned. No such objection was taken by the accused in the trial of the case or even at the appellate stage, and even today the learned Counsel for the petitioner could not show that any failure of justice has been occasioned by not trying the case summarily but trying it as a warrant case. Il may be stated that the trial of the case as warrant case is more beneficial to the accused than trying it summarily. In the case of Dharanidhar Sahu v. State of Orissa 1987 (1) PFA Cases 113, a similar question arose and the learned Judge, where there was no notification under Section 16A of the Act authorising the Magistrates to try food adulteration cases summarily, refused to quash the trial which was held as as a warrant case on the ground that the accused was not prejudiced in any manner. It was held that the trial was not without jurisdiction and the conviction was not vitiated.
(3.) I am of the opinion that an offence under Section 16(7) of the Act by virtue of Section 16A has to be tried summarily, but in case a Magistrate in this case the Chief Judicial Magistrate who has jurisdiction to try the cases summarily by virtue of authorisation under Section 16A of the Act in that behalf, does not try the case summarily and does not afford any opportunity of hearing as provided under Second proviso of Section 16A of the Act and even does not record an order that it would be undesirable to try the case summarily, the trial cannot be held to be vitiated. It is necessary that the accused must show that as a result thereof failure of justice has been occasioned. Learned Counsel for the petitioner, as already stated earlier could not show that there has been any failure of justice, more so when the procedure of the trial of warrant cases is more beneficial to the accused.;