Bal Kishan S/O Sh. Harbans Lal, New ... vs Local Health Authority, ...
2002 Latest Caselaw 1070 Del

JUDGMENT

V.S. Aggarwal, J.

1. The only question that requires consideration is as to whether when under the Prevention of Food Adulteration Act basically the offence is friable by a Metropolitan Magistrate if he could commit the same to the Court of Sessions or not.

2. The above said question arises as a result of the following facts. A complaint with respect to the offences punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act was filed by local health authority against the petitioner. It was on the assertions that on 21st August, 1996food inspector purchased a sample of mustard oil at M/s Bansi Oil Mills, Khanna Market, New Delhi. The petitioner was stated to be present conducting the business. A sample of 375 gms of mustard oil was taken and divided into three parts by the food inspector. One counterpart of the sample was sent to the public analyst and report was received that the sample does not conform to the standard laid down under the Prevention of Food Adulteration Act. It showed presence of argemone which was stated to be injurious to health. The learned Metropolitan Magistrate committed the same to the court of Additional Sessions Judge at New Delhi who ordered framing of the charge. By virtue of the present revision petition the petitioner asserts the order of the learned Metropolitan Magistrate committing the same to the Court of Sessions and also of the learned Additional Sessions Judge whereby charge as such has been framed upholding the order of the learned Metropolitan Magistrate.

3. Learned counsel for the petitioner had urged that the offence as such if any is friable by the Court of Metropolitan Magistrate and only if at the time of awarding the punishment the learned court feel that it should be more than what the learned Metropolitan Magistrate could award only then same could be sent to the Court of Sessions and not otherwise. According to the learned counsel therefore committing the same to the court of Sessions at the threshold is an order passed by the learned Metropolitan Magistrate which cannot be sustained.

4. To appreciate the said controversy reference can well bema de to some of the relevant provisions of Prevention of Food Adulteration Act and the Code of Criminal Procedure. Section 16(1)(A) of the Prevention of Food Adulteration Act prescribes the punishment with respect to certain offences and reads as under:-

"16(1A) If any person whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes,-

(i) any article of food which is adulterated within the meaning of any of the sub-clauses

(e) to (f) (both inclusive) of clause (ia) of Section 2; or

(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees:

Provided that if such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal code, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees."

5. It clearly reveals that if a food article when consumed is likely to cause death or harm to the body then the punishment shall not be less than three years but can extend to life besides fine. Section 20 of the same Act provides that no prosecution under that Act not being the offence under Section 15 or 14A shall be instituted except that the written consent of the Central Government or the State Government or a person duly authorised by the centre or the State Government. Sub-section (2) to Section 20 further makes it clear that no court inferior to a Metropolitan Magistrate or a Judicial Magistrate of a first class shall try any offence under this Act. Section 21 of the same Act further makes it clear and reads as under:-

21. Magistrate's power to impose enhanced penalties - Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.

In other words there is a non-substantive clause with respect to the provision of Section 29 of the Code of Criminal Procedure and it provides that a Metropolitan Magistrate or a Judicial Magistrate can pass any sentence except for imprisonment of life or aterm exceeding six years in excess of his powers under the said Section 29.

6. Needless to state that under Section 29 of the Code of Criminal Procedure a Metropolitan Magistrate can impose a sentence of three years or fine not exceeding Rs.5000/-. There is no controversy in this regard that under the Code of Criminal Procedure it is the Magistrate which takes cognizance and under Section 193 the court of Sessions can only try such cases of offences unless the same is committed to it by the court of Sessions. However, Section 323 of the Code of Criminal Procedure permits a Magistrate to commit the case to a court of Sessions if he finds that it should be tried by a court of Sessions. The said provision reads as under:-

Section 323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Courtunder the provisions hereinbefore contained andthereupon the provision of Chapter xviii shall apply to the commitment so made.

It is this provision which is being relied upon by the learned State counsel to contend that the learned Magistrate was justified in committing the case to the court of Sessions.

7. Asis apparent from perusal of Section 323 before resorting to the rigors of the said Section it is not necessary that the Magistrate must satisfy or come to a conclusion that a particular offence has been committed. The Legislature in its wisdom has used the expression "it appears to him at any stage of the proceedings".

8. The provision of Section 323 of the Code of Criminal Procedure are by and large pari materia with Section 347 of the Code of Criminal Procedure, 1898. The same expression appeared in Section 347 of the earlier Code and came up for consideration before the Bombay High Court in the case of State vs. Ganpat .The Bombay High Court held: "There are very few limitations imposed by this sub-section on the powers of the Magistrate. He is empowered to do so at any time before signing the judgment and at any stage and in any inquiry in any trial. But the crucial words in the sub-section are "If ...... it appears to him at any stage." The normal connotation of the word "appears" is "seems" or "to be in one' sopinion" (See Shorter Oxford Dictionary). Therefore, it is the mere opinion of the Magistrate that must prevail. The words are not "if satisfied that ...." so that a superior Court can judge whether there was sufficient ground for satisfaction. I shall presently show that this interpretation is supported by other provisions of the Code itself. Therefore, the question that arises in this reference is whether it can possibly be said upon the evidence of the six witnesses whom the Magistrate examined and upon the views which he has expressed that it did not "appear" to him that the case should be committed to the Court of Sessions. This is not a case where a magistrate could never form an opinion that the case ought to be committed to a Court of Session. That he took a more serious view of the matter than he ought to have taken of the case is not a ground for interference."

9. One finds in respectful view that it is not necessary that the court must record a finding about the offence having been so committed. Almost identical has been the expressions used by the Supreme Court in the case of Thakur Ram & Ors. vs. The State of Bihar . Once again Section 347 of the Code of Criminal Procedure 1898 was subject matter of consideration and the Supreme Court held:

"......Section 347 which occurs in Chapter XXIV headed" General provisions as to Inquiries and Trials" empowers a Magistrate to commita person for trial by a Court of Sessions if in the course of the trial before him and before signing the judgment it appears to him at any stage of the proceeding that the case ought to be so tried......"

Consequently the conclusions are obvious that it is not necessary that a particular finding must be recorded and the expression "it appears" would only mean that a Magistrate merely formulate a view.

10. On behalf of the petitioner strong reliance was placed on the single bench decision of the Allahabad High Court in the case of Khushi Ram vs. The State . In the cited case also it was friable by a Magistrate and it was committed to the court of Sessions. The Allahabad High Court took the view that where a special act has been made a special provision of punishment to be awarded by a Magistrate irrespective of the limitation placed upon his powers it amounts to abrogation of the general rule and therefore the case as such could not have been committed to the court of Sessions. The precise findings of the Allahabad High Court in this regard are:

"....Where a special Act has made a special provision for punishment to be awarded by a Magistrate irrespective of the limitations placed upon his powers under the Criminal Procedure Code it amounts to an abrogation of the general law and the provisions of section 347 of the Criminal Procedure Code cannot be applied to such a case. The Legislature by making a special provision under section 21 made it very clear that the Magistrate cannot commita case under this Act to the Court of Sessions on the ground that hecannot adequately punish the offender for he himself has been made competent to award the maximum punishment and it follows that he alone has the jurisdiction to try the case. There was no necessity to confer this special jurisdiction upon him if the jurisdiction of the Sessions Court by a commitment under section 347 of the Code of Criminal Procedure was intended to be maintained. In view of what I have observed above, I am of the opinion that the trial of the offender by the Sessions Judge was illegal and without jurisdiction. As such the order passed by the Sessions Judge cannot be upheld. It has to be set aside."

11. It is important to note that the decision of the Allahabad High Court is before the amendment of Section 21 of the Prevention of Food Adulteration Act which was effected in the year 1976 with effect from 1st April, 1976. Earlier there was no limitation on the powers of the Magistrate but as already referred to above said limitation has now been imposed and a Judicial Magistrate or Metropolitan Magistrate can sentence a person except exceeding six years or for imprisonment for life. When such limitation has been imposed the ratio decidendi of the decision rendered by the Allahabad High Court will have little role to play.

12. In fact one is constrained to observe that it is for the Metropolitan Magistrate to formulate a view when it appears to him that case ought to be tried by the court of Sessions. Ordinarily a superior could should avoid interfering in the said discretion unless it is found that the exercise of the discretion is totally arbitrary or is without jurisdiction.

13. Reference in this connection can be made to the decision from the Andhra Pradesh High Court in the case of V. Veera Raghavaloo & Ors. vs. State through SPE Hyderabad 1978 Criminal Law Journal209. In the said case Inspector CBI had filed a charge sheet against the accused for certain offences. Charges had been framed. When the case came up for trial before the Magistrate having regard to the gravity of the nature of the offence the Magistrate committed it to the court of Sessions. The said order was challenged and was held:

"To invoke the provisions of S. 323 Cr.PC it should appear to the Magistrate in any inquiry into an offence of a trial before him that the case is one which ought to be tried by the Court of Session. The case need not be one exclusively friable by a Court of Session. If the material in the case discloses an offence triable exclusively by a Court of Sessions the Magistrate has then no option but to commit the case to the Sessions. On the other hand, if the material discloses only an offence which is friable by the Magistrate himself, then he has a discretion either to try it himself or commit....."

14. Almost identical was the view point expressed by the Division Bench of the Andhra Pradesh High Court in the case The State vs. Rajkumar Sathi & Ors.1980 Criminal Law Journal 1355. Once again the scope of Section 323 of the Code of Criminal Procedure was considered and the view point expressed was identical holding:

"Section 323 is a general provision. It applies to all cases tried under the Code. It corresponds to Section 347 of the old Code except that the words "or High Court' in Section 347 are deleted in Section 323. The Section confers in general terms a wide and comprehensive power on a Magistrate to commit a case to the Court of Session at any stage of the enquiry or trial before signing the judgment if only it appears to him that the case is one which ought to be tried by a Court of Sessions. If the case appears to be one which is exclusively friable by a Court of Sessions, the Magistrate has no alternative but to commit the case to a Court of Sessions as required under Section 209, CrPC. It is only a case which appears to the Magistrate to be one which ought to be tried by the Court of Sessions that the Magistrate can act under this Section. The words "if it appears to him" contemplate the formulation of a judicial opinion. Though the discretion to commit is wide under this section, the discretion has to be exercised judicially and no hard and fast rule can be enunciated as to in what cases committal should be made under this section and in what other cases it should not be made. It all depends on the facts and circumstances of each case."

15. The Madras High Court in the case of Ramaswamy Gounder & Ors. vs. State 1981 Criminal Law Journal 1054 part heard statement of single witness was recorded before the Magistrate committed it to the court of Sessions. It was held once again that there was no scope of interference in the facts and further observed:

"On the basis of this decision and on the purport of S. 323 Cr.PC the learnedPublic Prosecutor contends that during the inquiry into an offence, by a Magistrate or during the trial before a Magistrate if it appears to the Magistrate from the evidence placed before him that the case has to be tried by the Court of Session, the Magistrate has no other alternative but to commit the case to the Court of Session. I agree with the learned Public Prosecutor."

16. From the aforesaid following conclusions can be drawn:-

i) The expression "it appears to him at any stage of proceedings" will not be a substitute for satisfaction of the Magistrate that offence as such has been committed. This opinion can be formulated at any stage of the case before signing the judgment;

ii) As a general rule if the case is friable by a Magistrate, he should so try it;

iii) However, if the learned Metropolitan Magistrate has to act under Section 323 which would come in the form of an exception to what has been stated above he must record his reasons before committing the case to the Court of Sessions.

iv) Its hould only be in rare cases that such commitment should be made to the court of Sessions when it is friable by a Magistrate;

v) Even if a special act provides that the case should be tried by a Magistrate still unless the Code of Criminal Procedure does not apply the Magistrate can act in rare cases under Section 323 of the Code of Criminal Procedure;

vi) The High Court ordinarily will not interfere in the discretion exercised unless it is totally arbitrary, without jurisdiction and no cogent reasons exist.

17. Reverting back to the facts of the present case it is patent that the learned Metropolitan Magistrate felt that the gravity of the offence was such and therefore committed it to the court of Sessions. The learned Additional Sessions Judge had also looked into the same and held that jurisdiction as such was not excluded and in guarded manner referred to the fact that the adulterated stuff could be injurious to health or could be fatal to human life. He had also taken note of the gravity of the offence. In the face of the above it is clear that there is no error or jurisdiction to prompt this court to interfere and as a result thereto it must be held that there is no ground to interfere. The revision petition being without merit must fail and is dismissed.