Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision No. 558 of 1966, decided on 16th December 1966.
‑Plea of guilty‑Trial whether summary or otherwise should be fair‑Accused must understand in clear terms offence he is charged with before he pleads guilty thereto.
S. 44‑Section 44 does not itself lay down any offence but prescribes penalties for offences defined in various sections of Ordinance‑‑No punishment can be awarded if no section is mentioned in judgment‑Someone cannot be said to be "guilty under S. 44".
K. Harunur Rashid for Petitioner.
A. T. M. Masud D. L. R. for the State.
A Rule was issued on the Deputy Commissioner of Mymen singh to show cause why the order of conviction and sentence of the petitioner Ganesh Chandra Sil purported to have been made under section 44 of the East Pakistan Pure Food Ordinance1959, by Mr. A. Rabim Magistrate First Class, Tangail, should not be set aside.
The prosecution case, as it appears from the judgment of the Court of Appeal below, is that the accused petitioner exposed for sale Mustard Oil which was suspected to be adulterated. A Sanitary Inspector is alleged to have sent the sample for analysis which was found to be adulterated as reported by the said Sanitary Inspector. In this case the accused is stated to have been examined under section 242 of the Code of Criminal Procedure. It is further stated that he pleaded guilty to the charge. It is also stated by the Magistrate in his judgment that he therefore convicted him under section 44 of the Ordinance and sentenced him to suffer rigorous imprisonment for six months and also to pay a fine of Rs. 400.00 and, in default, to suffer rigorous imprisonment for one and half months more. On appeal, the learned Sessions Judge reduced the sentence of imprisonment to three months and a fine of Rs. 200.00.
Mr. K. Harunur Rashid, learned counsel for the petitioner, submits that the impugned order of conviction and sentence is illegal inasmuch as the Magistrate recorded that the accused pleaded guilty without explaining to the accused the accusation made against him. His contention is that the Magistrate gives no indication anywhere as to the offence alleged to have been committed by him and as such it was clear that the accusation was never explained to him.
The learned Deputy Legal Remembrancer appearing on behalf of the State submits that although the Magistrate has not mentioned the particular section of the Ordinance which has been contravened, it is clear that an offence under the Ordinance has been committed. According to him this being a summary trial, nothing more was necessary.
The impugned order of the Magistrate together with cause title is fully set out below:
"No. 149(3) of 1966.
State v. Ganesh Chandra Sil
U/s. 44 of E. P. Pure Food Ord./59.
Serial No.
of order. Date. Order. Signature.
16‑4‑66. The case is received by transfer today. The accused is examined under section 242, Cr. P. C. after stating the particulars of the offence under section 44, of E. P. P Food Ordinance, 1959 being explained to him. The accused pleads guilty and begs the mercy of the Court. I sentence the accused to undergo R. 1. for 6 (six) months and also to pay fine of Rs. 400/00 I/d. R. 1. for 1 J months more.
(Sd.) A. Rahim,
Magistrate 1st Class, Tangail.
16‑4‑66."
Even the cause title of the impugned Judgment shows that the case is under section 44. The learned Magistrate himself says that he explained the offence under section 44. But is there any offence defined in section 44 The Answer must be in the negative.
I cannot agree with the learned Deputy Legal Remembrancer that nothing more was necessary. A trial whether summary or otherwise has to be fair and the accused must understand in clear terms as to what he has committed and for what offence he is being charged. It is a duty of the Court to see that the accused fully understands the accusation against him before he pleads guilty to it.
. In the case of this particular Ordinance, this is very important. I would like to refer to section 20 of the Ordinance by way of illustration. Material part of section 20 is as follows:‑
20. (1) Notwithstanding anything contained in sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, in any prosecution for the sale of any article of food in contravention of any of the provisions of those sections relating to such article, it shall be a defence for the seller to prove.‑
(a) that he purchased such article as being of a nature, substance or quality which would entitle him to sell it and with a written warranty to that effect, and
(b) that, at the time of the sale to which the prosecution relates he had no reason to suppose that the article was not of such a nature, substance or quantity, and that it was then in the same condition as when he purchased it.
If an accused is charged to have contravened the provision of certain offences defined in various sections mentioned in section 20, the accused can take a special defence as provided therein. Therefore, merely putting the accusation even would not be sufficient in a trial under this Ordinance. The section should be clearly mentioned to the accused so that he may decide as to whether or not he would take one or other of the pleas available to him under section 20. In a trial under this Ordinance the contention of the learned Deputy Legal Remembrancer to the effect that omission to mention the section has not prejudiced the accused is of no substance.
The examination of the question however points out more serious defect. Section 44 of the Ordinance together with marginal note reads as follows:‑ .
"44. Penalties.‑Who ever contravenes any provision of this Ordinance mentioned in the first column of the following table shall be punished, for the first offence, with a fine not less than that mentioned in the third column and not exceeding that mentioned in the fourth column of the said table, and for a second or subsequent offence of the same kind with punish ment not less than that mentioned in the fifth column and not exceeding that mentioned in the sixth column of that table." The scheme of the Ordinance is that the Court has to first find out as to which provision of the Ordinance has been violated. The second step is to refer to section 44 for penalties to be awarded. Section 44 does not lay down any offence itself. It makes provision for penalties for offences defined in various other sections of the Ordinance with the help of a table which follows section 44. In the said table various sections are set out together with offences; then sentences to be awarded for first and sub sequent offences are also set out in different columns against different sections. If it is found that some one has contravened the provision of a section, he will be awarded punishment shown against that section for first or subsequent offences as the case may be. If no section is mentioned in the judgment, no punishment can be awarded, for, table cannot be referred to. It cannot therefore be said that someone is guilty under) section 44.
In this case the learned Magistrate has said that particulars of the offence under section 44 have been put to the accused. It makes no sense whatsoever. It creates an absurd position; and to this the learned. Deputy Legal Remembrancer has no answer. It is incorrect to say that; he offence under section 44 has been explained, there being none defined in that section. Bare reading of the section makes it clear that the table mentioned in section 44 cannot be referred to for the purpose of awarding a sentence unless a finding is recorded by the Magistrate as to which provision of the Ordinance has been contravened. This indicates non application of the mind of the Magistrate. On a perusal of the record it seems to me that the learned Magistrate himself did not know what was the offence for which the accused was being convicted. This constitutes, to say the least, failure to hold a fair trial. Since the accused has not been found guilty under any of the sections which lay down offences under the ordinance, the impugned order of conviction and sentence is illegal,
For the reason stated above, the Rule is made absolute and the impugned order convicting and sentencing the accused is set aside and the accused petitioner is directed to be set at liberty forthwith.
Rule made absolute. Conviction set aside.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer