Madhya Pradesh High Court
Dammani Brothers Oil Merchant And ... vs The State Of Madhya Pradesh on 15 November, 2016
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
M.Cr.C.No.16325/2013
Dammani Brothers Oil Merchant
Vs.
State of M.P. and another
Present: Hon'ble Shri Justice C.V. Sirpurkar
...................................................................................................
...............
Shri Aditya Ahiwasi, counsel for the petitioner.
Shri Devendra Shukla, panel lawyer for the respondent
no.1/State.
Shri K.N. Fakhruddin, counsel for the respondent no.2.
..................................................................................................
..............
ORDER
(15-11-2016)
1. This miscellaneous criminal case under Section 482 of the Cr.P.C. is directed against the order dated 6.8.2012 passed by the Court of JMFC, Chhindwara in Criminal Case No. 4617/2007, whereby the application filed by the co-accused Pradeep Hirani, Proprietor M/s Kaloo Ram Jajimal, Siyaganj, Indore under Section 319 of the Cr.P.C., was allowed and the petitioner Dammani Brothers & Oil Merchant Commission Agent through Rajendra son of Daula Ji, resident of 99 Kailash Marg, Indore was directed to be arraigned as accused no.3 in the case.
2. The facts necessary for disposal of this miscellaneous criminal case may be summarized as hereunder: Food Inspector, Chhindwara, H.C. Gulati (respondent no.2) inspected the S.M. Kirana Bhandar Dongri, District- Chhindwara belonging to accused Shoeb Ahmed and purchased three packed bottles of refined soya-bean cooking oil on 28.2.2002. The oil was found to be adulterated by the Public Analyst, Bhopal; therefore, a complaint was filed against the accused Shoeb Ahmed in the Court of CJM, Chhindwara for the offence punishable under Sections 7 (1) read with section 16 (1) of the Prevention of Food Adulteration Act, 1954. Accused Shoeb Ahmed moved an application under Section 319 of the Cr.P.C. on 9.9.2003 for impleading M/s Kaloo Ram Jajimal, Siyaganj, Indore on the ground that he had purchased three packed bottles of 500 milliliters each, which were found to have been adulterated from M/s Kaloo Ram Jajimal, Indore in a sealed condition. By order dated 08.2.2007, JMFC, Chhindwara allowed aforesaid application and arraigned M/s Kaloo Ram Jajimal (Proprietor accused no.2, Pradeep Hirani) in the case. Pradeep Hirani challenged the order dated 8.2.2007 before the Court of Additional Sessions Judge, Chhindwara in criminal revision no. 81/2007; however, the same was dismissed by order dated 30.10.2010 by the Court of 5 th Additional Sessions Judge, Chhindwara. Subsequently, accused Pradeep Hirani filed an application under Sections 13 (2) read with section 32 (a) and Section 30 (a) of the Prevention of Food Adulteration Act, 1954 and Section 319 of the Cr.P.C. for impleading Dammani Brothers, Indore as accused no.3 in the complaint on the ground that Pradeep Hirani had purchased the aforesaid three bottles of refined soya-bean oil from Dammani Brothers Oil Merchant and Commission Agent, 99 Kailash Marg, Indore in a sealed condition and they were manufacturers of the same. Learned JMFC, Chhindwara by order dated 6.8.2012 allowed the application on the basis of bills submitted by co-accused Pradeep Hirani and observed that it is clear that the bottles in question were purchased from the petitioner Dammani Brothers.
3. Consequently, the petitioner M/s Dammani Brothers was arraigned as accused no.3 in the complaint; however, the attempts to procure their attendance in the Court failed and they were declared as absconders by order dated 23.8.2013 passed by the Court of CJM, Chhindwara. Subsequently, the trial proceeded against accused Shoeb Ahmed and M/s Kaloo Ram Jajimal, Proprietor-Pradeep Hirani and by judgment dated 19.12.2013 passed by the Court of CJM, Chhindwara, accused Shoeb Ahmed was acquitted but Pradeep Hirani, Proprietor, M/s Kaloo Ram Jajimal, Indore was convicted for the offence punishable under Sections 7 (1) read with section 16 (1) of the Prevention Of Food Adulteration Act, 1954. Consequently, a sentence of rigorous imprisonment for a period of six months and a fine in the sum of Rs.10,000/- was imposed upon co-accused Pradeep Hirani. Pradeep Hirani filed appeal against the judgment in the Court of First Additional Sessions Judge, Chhindwara, which was registered as Criminal Appeal No.21/2014. Ultimately, the appeal was allowed and Pradeep Hirani was acquitted of the charge under Sections 7 (1) read with section 16 (1) of the Prevention Of Food Adulteration Act, 1954.
4. Meanwhile, the petitioner Dammani Brothers filed this petition under Section 482 of the Cr.P.C. before the High Court on 4.12.2013. It is directed against the order dated 6.8.2012 passed by JMFC, Chhindwara, whereby the application filed by Pradeep Hirani under Section 319 of the Cr.P.C. was allowed and Dammani Brothers were directed to be arraigned as accused persons in the complaint. The impugned order has been assailed before this Court mainly on two grounds. The first ground is that learned Magistrate totally ignored the provision of Section 20A of the Prevention of Food Adulteration Act, 1954. Provisions of Food Adulteration Act being an special Act, shall prevail over the Code of Criminal Procedure, which is a general Act. As such, Section 20A shall prevail over Section 319 of the Cr.P.C. As per Section 20A, the Court can implead a manufacturer, distributor or dealer only on the basis of evidence adduced before it during the trial. No evidence had been recorded in the trial Court before impleading the petitioner as being the manufacturer of the oil found to be adulterated; therefore, the impugned order was without jurisdiction. It was further argued that the averments made by co-accused Pradeep Hirani that he had purchased oil from the petitioner was baseless as Pradeep Hirani himself had taken ground before the revisionary Court in his memo of revision that he had not purchased oil from Dammani Brothers; therefore, the impugned order is liable to be set-aside.
5. Learned panel lawyer for the respondent State and counsel for the complainant Food Inspector have opposed the application on the ground that the petitioner never appeared before the trial Court and therefore had to be declared as absconder. He has straightaway come before the High Court for quashing the order impleading him as accused.
6. A perusal of the record of the trial Court, particularly the order dated 23.8.2013 reveals that neither bailable warrant nor arrest warrant was returned back to the Court either executed or unexecuted. In these circumstances, the trial Court was not justified in holding that the petitioner is beyond the reach of the police. Thus, the order declaring the petitioner as an absconder, itself was not sustainable.
7. Coming to the merits of the case, it may be noted that the petitioner was arraigned on the application of co-accused Pradeep Hirani. Pradeep Hirani was arraigned on the application made by original accused Shoeb Ahmed. Both the applications were filed under Section 319 of the Cr.P.C.. Thus, originally only Shoeb Ahmed was arraigned as an accused. At the time of impleading Pradeep Hirani as accused as well as at the time of impleading the petitioner as accused, no reference was made to Section 20A of the Prevention of Food Adulteration Act, 1954. Thus, learned counsel for the petitioner has rightly argued that the provisions of Section 20A were totally ignored.
8. It is also clear from the record of the trial Court that before impleading the petitioner, no evidence in the case had been recorded, Thus, the petitioner was arraigned only on the basis of unsubstantiated documents filed by the co- accused Pradeep Hirani.
9. Section 20A of the Prevention of Food Adulteration Act, 1954 reads as hereunder:-
20A. Power of Court to implead manufacturer, etc.- Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, notwithstanding anything contained in {sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974)} or in section 20 proceed against him as though a prosecution had been instituted against him under Section 20.
10. Paragraph nos. 7 and 8 of the judgment in the case of M/s Omprakash Shivprakash Vs. K.I. Kuriakose and others, AIR 1999 SC 3870, read as hereunder:
7. The above provision overrides the ban contained in Section 20 of the Act that no prosecution shall be instituted for the offences under the Act except by or with the consent of the authorities mentioned in the Section. The essential conditions for invoking the power under Section 20 A are that (1) the trial should have begun already; (2) the trial must be of any offence, under the Act allegedly committed by a person other than the manufacturer or distributor or dealer of the food article; (3) the Court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence, (4) such satisfaction must have been formed âon the evidence adduced before the Court.â
8. Section 319 of the Code empowers the Court to proceed against any person, who is not being made an accused already, if it appears from the evidence collected in the inquiry or trial of an offence that such person has committed an offence for which he could be tried together with the already arraigned accused. One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the Court from the evidence (either during enquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the Court can proceed against that other person, while in the latter the satisfaction of the Court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from âthe evidence adduced before it during the trialâ. In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends.
11. There is no manner of doubt in the case at hand that the petitioner was not arraigned on the basis of any evidence recorded during the trial. In any case, learned CJM in the judgment dated 19.12.2013 had convicted the co-accused Pradeep Hirani on the ground that he had failed to adduce the evidence as to from which manufacturer and by which the bill, he had purchased the bottles of the refined soya- bean oil in question.
12. Thus, it is clear that the impugned order impleading the petitioner as accused was sans jurisdiction and allowing the proceedings against the petitioner to continue on the basis of such an order would be abuse of process of Court. Thus, this is a fit case where the High Court should exercise its jurisdiction under Section 482 of the Cr.P.C. and quash the impugned order as well as proceedings arising therefrom.
13. Consequently, this petition under Section 482 of the Cr.P.C. is allowed. The impugned order dated 6.8.2012 passed by the Court of JMFC, Chhindwara in Criminal Case No. 4617/2007 and the proceedings instituted against the petitioner on the basis of that order, are quashed.
(C V SIRPURKAR) JUDGE sh