Sunday, 20 September 2015

Whether trial will be vitiated on the ground that statement recorded under S 313 of CRPC does not bear certificate issued by Magistrate?

The last contention of Mr. Verma is that there has been infraction of the provision of Section 281 of the Code of Criminal Procedure in recording of the statement of accused under Section 313, Cr. P.C.
16. Sub-section (5) of Section 281 specifically provides that any statement of the accused recorded by a Magistrate or by the Court of Sessions must bear a certificate of the concerned Magistrate or Presiding Judge to the effect that examination was taken in his presence and hearing and that the record contains a full true account of the statement made by the accused. Admittedly in the present case, this certificate is missing from the statement of the accused. Learned Sessions Judge dealing with this question held that this aspect will not vitiate the trial of the accused as he has not been prejudiced or injured by this omission in his defence.
17. There is no dispute that statement of the accused was recorded by the learned trial Magistrate. It is also not in dispute that answers given by the accused to the questions were faithfully recorded by the learned trial Magistrate-. Section 463 of the Code provides that if there is non-compliance with the provision of Section 281 or S. 164 of the Code, it may nevertheless take such statement into consideration, if such Magistrate or Judge is satisfied that non-compliance has not injured the accused in his defence and that such statement was duly made by the accused.
18. In the facts and circumstances of the case, it cannot be said that the accused was prejudiced in any manner by non-recording of the certificate by the learned trial Magistrate. No injury is caused to the accused particularly when it is not in dispute that statement as recorded by the learned trial Magistrate under Section 313, Cr. P.C. was in fact made by the accused and its authenticity is not questioned' This, irregularity will have no effect on the merits of the case which stands cured by provisions of Section 463 of the Code.
19. The Supreme Court in State of Himachal Pradesh v. Gita Ram, 2000 (4) Crimes 21 (SC) : (2000 Cri LJ 4039), observed that the very object underlined in Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that aspect after the whole trial is over. It is noticed that no such objection was raised by the accused before the learned trial Magistrate. It is not open to the accused to raise such objection at this stage.
Himachal Pradesh High Court
Mohan Lal vs State Of H.P. on 28 July, 2003
Equivalent citations: 2005 CriLJ 591,2003 FAJ 572 HP

Bench: K C Sood

1. On 13th October, 1993, Food Inspector, Sh. S. C. Joshi, intercepted accused Mohan Lal selling mixed milk. Mohan Lai had kept the milk for sale in two iron buckets. Each of the buckets contained about six liters of milk. The Food Inspector, after disclosing his identity, expressed his intention to purchase 750 milliliters of milk, for the purpose of analysis. He accordingly issued a notice to the accused. Food Inspector purchased 750 milliliters of mixed milk on payment of Rs. 3.75 paise for the purpose of analysis. Before lifting the sample, the milk was stirred to make it homogeneous and thereafter poured into three neat, clean and dry bottles. In each of the bottles, 20 drops of formalin were added as preservative. The samples were corked, wrapped and sealed. Codal formalities were completed. One part of the sample was sent to the Public Analyst, Kandaghat. Public Analyst, Kandaghat by his report dated 17th November, 1993 (Ex. P6) found that the sample of the milk deficient in milk fat. and milk solid is not fat. Milk fat content was 2.8% against the minimum prescribed standard of 4.5% and milk solids not fat were 4.2% against the minimum prescribed standard of 8.5% for the mixed milk. The Food Inspector after obtaining necessary sanction, under Section 20 of the Prevention of Food Adulteration Act (Act for short), filed a complaint before the learned Chief Judicial Magistrate, Solan. Learned trial Magistrate, by his judgment dated 28-7-1999 convicted accused Mohan Lal for offences punishable underSection 16(1)(a)(i) of the Act and sentenced him to suffer simple imprisonment for six months and to pay fine of Rs. 1.000/-. In case of default in the payment of fine, accused to undergo simple imprisonment for three months.
2. Aggrieved, accused carried an appeal before the learned Sessions Judge, which was dismissed by the learned Sessions Judge by his impugned judgment dated 26-8-2000."
3. Still not reconciled, accused had filed the present petition under Section 397 read with Section 401 of the Code of Criminal Procedure.
4. I have heard Mr. G. D. Verma. learned Senior Advocate, instructed by Mr. Romesh Verma, learned counsel and Mr. Ashok Chaudhary, learned Additional Advocate General for the State-respondent.
5. Three contentions are raised by Mr. Verma
(a) The sanction accorded by the Local Health Authority, under Section 20 of the Act, is without application of mind and, therefore, not a valid sanction
(b) The milk, before lifting of the sample, was not made homogeneous which resulted in discrepancy, and
(c) Learned trial Magistrate, while recording statement of the accused, under Section 313, Cr. P.C., did not comply with the provisions of Section 281 of the Code of Criminal Procedure and, therefore, the trial is vitiated.
6. By relying upon State of Himachal Pradesh v. Joginder Kumar, 1992 (2) Sim LC 221 and State of Himachal Pradesh v. Lal Chand, 1992 (2) Sim LC 339, Mr. Verma, learned Senior Counsel urges that the sanction was accorded by the competent authority in a mechanical manner without the application of mind.
7. In Joginder Kumar, perusal of sanction indicated that the sanction was given in printed form and blank columns were filled by some one else. The sanction order did not disclose that the sanctioning authority took notice of various documents sent by the Food Inspector and it was found as fact that the concerned authority merely depended upon the report of Public Analyst in according sanction. It is in this background that this Court held that the sanction was invalid. Similarly, in Lal Chand, the sanction did not ex facie indicate as to what facts and circumstances were placed before the sanctioning authority, when he accorded sanction under Section 20 of the Act. This omission led the Court to observe that the sanctioning authority must point the relevant particulars on the basis of which the prosecution was based.
8. Section 20 of the Act came to be considered by the Supreme Court in Suresh H. Rajput v. Bhartiben Pravinbhai Soni, (1996) 7 SCC 199. The Apex Court held that the requirement ofSection 20(1) of the Act would stand satisfied, if the report of the Public Analyst and other pertinent material in connection therewith is placed before the" sanctioning authority. At that stage, it was not given to the sanctioning authority to weigh the pros and cons and then to find whether the case would result in conviction or not. It is not for the sanctioning authority to consider such matters.
9. In State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222, their Lordships held that :
"It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sh. Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard.
(Emphasis given)
10. In the present case, it is categorical evidence of the Food Inspector (PW-1), that he personally made an application to the Chief Medical Officer, the competent authority, along with relevant documents, who read each of the document and wrote seen on every document and after applying his mind accorded sanction Ex. P-9. A perusal of the sanction (Ex. P-9) shows that the documents, that is, Notice Form No. VI, receipt of vendor, panchnama prepared on the spot, receipt of the sample by the Public Analyst, Kandaghat, report of the Public Analyst along with the letter of LHA, Solan and Memorandum in Form No. VII etc. were placed by the Food Inspector before the Local Health Authority (CMO, Solan). These documents were perused by him. The relevant portion of the sanction reads :
"That after carefully study of the documents placed before me by Sh. S. C. Joshi, Food Inspector, Solan, i.e., Notice form VI, receipt of vendor, panchnama prepared on the spot, receipt of sample by Public Analyst, Kandaghat, report of Public Analyst along with letter of LHA, Solan and Memo. VII etc. I have applied my mind fully to these documents pertaining to the case of Sh. Mohan Lai s/o Sh. Lachmi Singh, Milk Seller of village Sanhol, PO Kote Beja, Tehsil Kasauli, Distt. Solan and came to the conclusion that it is a fit case for launching prosecution in the Court of law as the sample of mixed milk bearing LHA, Solan serial and code No. SLN/S/180/93 taken by Sh. S. C. Joshi, Food Inspector, Solan on 13-10-1993 has been declared as adulterated and contents of the sample "the milk fat content is 2.8% against the minimum prescribed standard of 4.5% and Milk solids not fat con-2005 Cri. L. J./38 II tents is 4.2% against the minimum prescribed standard of 8.5% in the sample of mixed milk" as per Public Analyst, Kandaghat report No. 1263 dated 17-11-93,"
11. Reading of sanction makes it clear which ex facie shows that before according sanction all the relevant papers were perused by the sanctioning authority and it is only thereafter that sanction to prosecute the accused was accorded by the competent authority.
12. This Court in State of H. P. v. Madan Lal, Latest HLJ 2000 (HP) 534 : (2000 Cri LJ 4200), in similar circumstances held that sanction accorded by the sanctioning authority, after going through the report of the Public Analyst and other relevant documents pertaining to that case, was a proper sanction.
13. Sanction, in my view, in the facts of this case does not suffer from any infirmity.
14. The next contention of Mr. Verma is that the sample of the milk taken by the Food Inspector was not made homogeneous by properly stirring it. The contention lacks foundation. It is the evidence of the Food Inspector, as appreciated by the trial Court and the first appellate Court that he stirred the milk, which was kept in an iron bucket for sale, properly and made it homogeneous before he lifted and purchased the sample for the purpose of analysis. The Food Inspector has not been cross-examined on this aspect of the case by the accused. The other witness has also not been cross-examined even to suggest that the milk was not properly stirred and made homogeneous. The trial Court dealing with this question referred to the testimony of Food Inspector (PW-1) and held that it was proved from the testimony of Food Inspector that the milk lying in the container was made homogeneous by stirring the same in the container. Similarly, in appeal the learned Sessions Judge, rejected the argument of the accused that milk was not stirred and made homogeneous after appreciating the evidence. This Court in its revisional jurisdiction will not go into concurrent findings of fact, by the learned trial Court and the first appellate Court. Nevertheless that evidence has again been seen and there is nothing on record which shows that milk from which the sample was lifted by the Food Inspector was not made homogeneous by stirring as claimed by the accused.
15. The last contention of Mr. Verma is that there has been infraction of the provision of Section 281 of the Code of Criminal Procedure in recording of the statement of accused under Section 313, Cr. P.C.
16. Sub-section (5) of Section 281 specifically provides that any statement of the accused recorded by a Magistrate or by the Court of Sessions must bear a certificate of the concerned Magistrate or Presiding Judge to the effect that examination was taken in his presence and hearing and that the record contains a full true account of the statement made by the accused. Admittedly in the present case, this certificate is missing from the statement of the accused. Learned Sessions Judge dealing with this question held that this aspect will not vitiate the trial of the accused as he has not been prejudiced or injured by this omission in his defence.
17. There is no dispute that statement of the accused was recorded by the learned trial Magistrate. It is also not in dispute that answers given by the accused to the questions were faithfully recorded by the learned trial Magistrate-. Section 463 of the Code provides that if there is non-compliance with the provision of Section 281 or S. 164 of the Code, it may nevertheless take such statement into consideration, if such Magistrate or Judge is satisfied that non-compliance has not injured the accused in his defence and that such statement was duly made by the accused.
18. In the facts and circumstances of the case, it cannot be said that the accused was prejudiced in any manner by non-recording of the certificate by the learned trial Magistrate. No injury is caused to the accused particularly when it is not in dispute that statement as recorded by the learned trial Magistrate under Section 313, Cr. P.C. was in fact made by the accused and its authenticity is not questioned' This, irregularity will have no effect on the merits of the case which stands cured by provisions of Section 463 of the Code.
19. The Supreme Court in State of Himachal Pradesh v. Gita Ram, 2000 (4) Crimes 21 (SC) : (2000 Cri LJ 4039), observed that the very object underlined in Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that aspect after the whole trial is over. It is noticed that no such objection was raised by the accused before the learned trial Magistrate. It is not open to the accused to raise such objection at this stage.
20. No other point is raised.
21. In the end Mr. Verma, prays that the learned trial Magistrate has imposed sentence of six months and fine of Rs. 1,000/-and the milk being primary food, the minimum sentence improbable under the law is imprisonment for three months and fine of Rs. 500/- and, therefore, the sentence may be reduced, particularly when the accused has already suffered agony of the trial during all these years.
22. Taking into consideration the facts of the case and the fact that the accused has already suffered agony and pain of the trial for about 10 years, the sentence imposed by the learned trial Magistrate is reduced. It is directed that the accused shall suffer imprisonment for three months and pay fine of Rs. 1,000/-. In case of default in the payment of fine, he shall further undergo imprisonment for one month.
23. Accused shall immediately surrender to undergo the sentence imposed and appear before the learned trial Court on 16th August, 2003. If he does not surrender, the trial Court shall take appropriate steps for the execution of the sentence imposed on him.
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