JUDGMENT
V.S. Aggarwal, J.
1. Petitioner was tried by the court of Judicial Magistrate Ist Class, Chandigarh with respect to offence punishable under Sections 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’). He was held guilty of the above said offences and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months. Aggrieved by the same, the petitioner preferred an appeal. The learned Additional Sessions Judge, Chandigarh on 20.4.1987 dismissed the appeal, as a result of the same the present revision petition has been filed.
2. The prosecution case can be briefly listed to be that on 23.1.1980 at 9.30 A.M. the petitioner was intercepted by Food Inspector, Hazara Singh in Sector 22-B, Chandigarh. Petitioner was carrying 20 kilogram of unindicated milk for sale in a drum. The Food Inspector introduced himself to the petitioner in presence of Arjan Singh. A notice (Ex.PA) was served on the petitioner expressing the intention to purchase milk for purposes of analysis. 660 ML. of unindicated milk was purchased after stirring. Payment was made against a receipt Ex.PB. The milk was divided into 3 equal parts and converted into 3 dry and clear bottles. 18 drops of formaline were added as preservative in each bottle. Thereafter the bottles were stoppered, labelled and sealed. One of the bottle alongwith memo of Form VII bearing specimen seal impression was sent to the Public Analyst. On analysis contents of the sealed sample were found to be adulterated. Milk was found to be deficient in milk fat and milk solids by 2.8% and 9% respectively of the minimum prescribed standard. On receipt of the report of the Public Analyst, the petitioner was prosecuted.
3. The learned Judicial Magistrate had framed a charge against the petitioner for the offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Act. Petitioner had pleaded not guilty and claimed trial. The prosecution besides examining the Food Inspector, also produced Surinder Kumar as a witness. Petitioner was examined in terms of Section 313 Cr.P.C. and incriminating evidence was put to him. The entire evidence, as such, was denied. As referred to above, the learned Judicial Magistrate found the petitioner guilty of the above said offence and convicted him. The appeal filed by the petitioner also failed. This led to the filing of the present revision petition.
4. At the outset it was urged that earlier a complaint was filed which had been dismissed for non prosecution and the second complaint is not maintainable. The fact that earlier a complaint was filed which was dismissed for non prosecution has not been disputed by the learned counsel for the State. Therefore, the short question that comes up for consideration is as to whether the second complaint basically on the same facts could be filed or not. This question had been considered and answered by the Supreme Court in the case of Pramatha Nath Jalukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876. The Supreme Court held that the second complaint is not barred. In paragraph 48 it was held :-
“An order of dismissal under Section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.”
To insist that special reasons must be stated, would not be a sine-qua-non before another complaint can be filed. It always depend on the facts and circumstances of each case whether there were circumstances to entertain the second complaint or not. If there is an abuse of the process of the court, sheer harassment, mis-statement of facts, the second complaint can well be rejected on that ground. It will not be possible to put all the facts and circumstances in a mould. In the present case, when the earlier complaint was dismissed for non-prosecution and the State felt the necessity of still prosecuting the said accused and there are no mala-fide or abuse of the process of the court brought to the notice, the complaint could well be entertained. In the present case not only the aforesaid facts makes one to conclude that second complaint could be filed but at this belated stage, it will not be appropriate to go beyond those facts. Therefore, the contention must fail.
5. Pertaining to the merits of the matter, what was highlighted was a procedural defect. Learned counsel urged that it is not established that before the sample of the milk was taken, it has been stirred. But the fallacy of the argument becomes patent from perusal of the record. In the complaint it had specifically been so stated. The evidence of the Food Inspector also indicated that he had stirred the milk before taking the sample. The said evidence had been believed by the learned trial Court and the first appellate court. Being so there is no reason to come to a contrary finding. The said submission, therefore, being without merit must fail.
6. Confronted with that position yet another submission made was that when the petitioner was examined in terms of Section 313 of the Code of Criminal Procedure the report of the Public Analyst was not put to him.
7. It must be remembered that all incriminating evidence should be put to the accused when his statement in terms of Section 313 Code of Criminal Procedure. It has been enacted to permit the accused to give an explanation qua the incriminating evidence against him. However, if there is any omission, in finality it has to be seen if any prejudice is caused to the said accused or not. In the present case, the petitioner had totally denied all the facts which emerged from the incriminating evidence. When the factum of taking the sample was denied merely because if the report of the Public Analyst was not put to him, will not permit the petitioner to state that prejudice had been caused. In the peculiar facts when the facts basically were denied, the learned counsel cannot urge prejudice for an ommission.
8. The last submission made in this regard was pertaining to the sentence. It was argued that incident pertains to the year 1980 and the petitioner is facing the agony of a prolonged trial and thereafter appeal and the revision, 16 years have elapsed. The decision in the case of Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, AIR 1979 SC 1360 had set the law into motion. The scope of Article 21 was extended and it was held that expeditious disposal of the cases was an integral and essential part of the fundamental right to life and liberty. In paragraph 5 it was held :-
“Now obviously procedure prescribed by law for depriving a person of his liberty cannot be ‘reasonable, fair and just’ unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”
The same question was considered by a Bench of the Patna High Court in State of Bihar v. Ramdaras Ahir and Ors., 1985 Crl.L.J. 584. It was concluded that the word ‘trial’ would bring within its sweep, the appeal that would be pending against such an order. In paragraph 17 the Court had held :-
“Therefore, there seems to be no option, but to hold that the word ‘trial’ in the context of the constitutional guarantee of a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court- whether against conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisaged an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original court alone.”
Subsequently, the Full Bench of Patna High Court in Anurag Baitha v. State of Bihar, AIR 1987 Patna 274 reiterated the same view and in paragraph 11 it was held :-
“If Article 21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but indeed is an actually meaningful protective provision, then a fortiori expeditious hearing of substantive appeals against convictions is fairly and squarely within the mandate of the said Article.”
9. Reverting back to the fact of the present case as already mentioned above, the incident pertains to a period of more that 16 years ago. The petitioner had already undergone nearly 2 months of the sentence. As pointed out above, fair, just and reasonable procedure is implicit in Article 21 of the Constitution. After such a prolonged period, though the petition is without merit, it would be inappropriate to insist that petitioner can well be sent to undergo the rest of the sentence. It would be unfair. Article 21 of the Constitution would bring within its sweep, not only expeditious trial but disposal of appeals and revisions. The fairness to the accused-petitioner, therefore, demands in the peculiar facts of this case that giving predominance to the said article, the sentence should be reduced to the one already undergone. Order is made accordingly.
10. Subject to the aforesaid, the revision petition fails and is dismissed.