Kerala High Court
Omprakash Shivprakash vs K.I. Kuriakose And Ors. on 10 June, 1999
Equivalent citations: 1999CRILJ3836
ORDER K.A. Mohamed Shafi, J.
1. The sixth accused in C.C. No. 755 of 1997 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam has filed this M.C. to quash Annexure-C order passed by the Magistrate and entire proceedings initiated against him.
2. On the basis of Annexure A1 complaint, filed by the Food Inspector, Corporation of Cochin, Ernakulam, accused 1 to 5 who are the respondents 2 to 6 herein, were standing trial for the offences punishable under Section 2 (ia), (h), (i), 7(i) and 7(v) read with Section 16 (1-A) of the Prevention of Food Adulteration Act and Rule 44-A and Rule 80 of the Prevention of Food Adulteration Rules. The allegation made in the complaint is that the turdal was purchased by the complainant from the first accused exposed and exhibited by him for sale to public for the purposes of analysis and after analysis the same was found to be adulterated. The first accused informed the Food Inspector that he purchased the food article from the second accused as per Bill No. 5197 dated 26-6-1995. The second accused is a partnership firm and third accused is the Managing Partner, who is in charge of the business of the firm. As the second accused informed that they purchased the food article in question, from the fourth accused firm, as per bill No. 40978, dated 27-5-95, the fourth accused firm and the fifth accused, its Managing Partner were implicated. Even though it is stated in the mahazar prepared by the Food Inspector as well as in Annexure Al complaint that it was inscribed in Hindi on the sack wherefrom the sample was taken the name as Omprakash Sivaprakash, MITCH, Phase 3, plot No. A, Akola and also brand name as 24 CARAT COLBRAND, the Food Inspector did not implicate him as an accused stating that the other accused did not indicate whether the above name holder is a licensed manufacturer and the details such as, whether it is having a valid PFA licence etc. or whether it is a proprietary concern, firm or a company, etc.
3. After they appeared before the Court, the fifth accused filed a petition before the Court under Section 19 of the Food Adulteration Act and under Section 319 of the Code of Criminal Procedure, seeking to implead the petitioner herein, as an accused in the case. The learned Magistrate, by the impugned order dated 23-1-1998 allowed the petitioner to be impleaded as an accused in this case and directed to issue summons to him. Hence the petitioner has preferred this revision petition before this Court to quash the order passed by the Magistrate and the entire proceedings initiated against him.
4. The learned senior counsel for the petitioner vehemently submitted that the manufacturer's name stated in the mahazar and in the annexure A1 complaint is entirely different from the person sought to be impleaded as per Annexure-B petition and impieaded as per Annexure C order. He also pointed out that the brand name mentioned in the mahazar prepared by the Food Inspector and in the Annexure A1 complaint filed by him is entirely different from the brand name of the product manufactured and marketed by the petitioner, as stated in Annexure B petition. The manufacturer sought to be impleaded is entirely different from what is mentioned by the Food Inspector in the mahazar as well as in the complaint. On perusal of the recitals made in the mahazar prepared by the Food Inspector and the bills produced by the accused 1 to 4 before the Food Inspector and the Court, copies of which are shown to me, I find no difference in the person mentioned as manufacturer and person sought to be impleaded as per Annexure B petition. The petitioner cannot make much of the slight typographical error committed in the complaint, with regard to his description. Therefore, this submission of the petitioner is not sustainable.
5. The petitioner vehemently contended that in the petition filed before the learned Magistrate, by the fifth accused, it is stated that "The sample turdal seized from the accused No. 1 is not an article sold by the petitioner. The mark of the turdal sold by the petitioner is "24 carat marks", but the sample seized from accused No. 1 is having brand name "24 Carat Colbrand" which is not sold by the petitioner. It is not known whether M/s. P.K. Jacob & Company had actually sold the self same article which was purchased from the petitioner. In any case, the tur dal which is sold by the petitioner is procured from M/s. Omprakash Sivaprakash, Ltd. Kirana-bazar, Akola 440001, which is represented by Sri Sanjay Kumar and it is highly necessary that he should be impleaded as accused in this case, for the interest of justice". The learned Senior counsel submits that the above averments made in the petition clearly show that the tur dal sold in this case is entirely different from what is sold by the fifth accused to the second accused and what is manufactured and marketed by the petitioner. Therefore, on the basis of the averments made in the petition, the learned Magistrate is not at all justified in impleading the petitioner in this case.
6. Proviso to Section 14 of the Prevention of Food Adulteration Act lays down "a bill, cash memorandum or invoice in respect of sale of any article or food given by manufacturer or distributor of or dealer in such article to the vendor thereof, shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section". In this case, the first accused has produced the bill issued by the second accused and the second accused has produced the bill issued by the fourth accused for purchase of the article. The fourth accused contended that the article sold by them is manufactured and marketed by the petitioner herein. Section 20-A of the Act deals with power of the Court to implead the manufacturer which reads as follows.
where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manu-facturer,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).
Therefore, it is clear that Section 20A of the Act empowers the Magistrate to implead the Manufacturer, distributor or dealer, if he is satisfied that such manufacturer, distributor or dealer is also concerned with the offence, at any time, during the trial of any offence under the Act. The subjective satisfaction of the Magistrate trying the offence punishable under Prevention of Food Adulteration Act, to the effect that the Manufacturer, distributor or dealer is also concerned with the crime is sufficient to implead him in the case, under Section 20 A of the Act. The question whether the articles purchased by the Food Inspector for analysis in this case is the very item of food article manufactured and marketed by the petitioner which was' sold to the fourth accused, who in turn sold to the second accused and finally sold by them to the first accused vendor, are matters to be considered by the trial Court, after adducing evidence. From the materials available on record, especially the mahazar prepared by the Food Inspector, Annexure A I complaint filed by him, the receipts issued with regard to the sale of the article, are sufficient to establish that the petitioner is concerned in the offence alleged in this case, so as to implead him as an accused. Therefore, the argument of the learned senior counsel that the averments made in the petition filed by the fifth accused in this case provided negative evidence, as far as the implication of the petitioner in this case is concerned; as he has stated that he has not sold the food article in question, though he has stated that he has sold the article purchased by him from the sixth accused is not acceptable.
7. The learned senior counsel for the petitioner submitted that as the proceedings initiated by the first respondent, Food Inspector and pending before the Court is a summons case, the order passed by the learned Magistrate to implead the petitioner as sixth accused in this case is illegal and contrary to the provisions of Criminal Procedure Code. According to him, the trial in a summons case will commence only when the charge is framed by the Court against the accused concerned and in this case, no evidence is recorded nor any charge is framed against the accused and therefore the trial is not commenced. Therefore, according to him, the impugned order passed before the commencement of trial by the Magistrate is illegal. Section 20A of the Act empowers the Magistrate to implead the manufacturer, distributor or dealer as the case may be, at any time during the trial of any offence under the Act. Therefore, according to him, since the trial has not started, the petitioner cannot be impleaded as an accused, being manufacturer of the food article in question. The learned senior counsel relied upon common cause, A Regd. Society through its Director v. Union of India 1997(1) KLT 366, wherein a two Judge bench of the Supreme Court has observed as follows.
In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973.
Therefore, the learned senior counsel argued, that this case being treated as summons case, the trial before the learned Magistrate will commence only when charge is framed by the Court against the accused after examining the witnesses. Therefore, according to him, Annexure-C order impleading the petitioner as accused in this case being illegal is liable to be quashed.
8. In the decision reported in Bhagwan Das Jagdish Chander v. Delhi Administration (AIR 1975 SC 1309): (1975 CriLJ 1091), a three Judge bench of the Supreme Court has observed as follows at page 1097; of Cri LJT We are in agreement with the view of the Delhi High Court that these special provisions do not take away or derogate from the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old Sections 233 to 239 of Criminal Procedure Code. On the other hand, there seems no logically sound reason why if a distributor or a manufacturer can be subsequently impleaded, under Section 20 A of the Act, he cannot be joined as a co-accused initially in a joint trial if the allegations made justify such a course.
In the decision reported in Chandak v. Food Inspector (1990) (1) KLT 572, a Division Bench of this Court has observed as follows.
It could be said that when the case is tried as a warrant case instituted otherwise than on a police report, the trial commences only when the charge is framed after compliance with Section 244. But, as held in State of Bihar v. Ram Naresh Pandy AIR 1957 S. C. 389 (1957 Cri LJ 567) followed in Pure Ice Cream Pvt. Ltd., v. Narendrajitsingh (1975 (2) P.F.A. Cases 385, 'trial in Section 20A or even under certain provisions of the Code of Criminal Procedure cannot be understood to mean proceedings after framing of charge alone. The proceedings even before that could be treated as trial for the purpose of Section 20-A and evidence adduced at that stage also may be sufficient.
In the decision reported in Delhi Cloth & General Mills Co. Ltd. v. State of M. P. (1995 (6) SC cases, 62 (1996 Cri LJ 424), a three judge bench of the Supreme Court has observed as follows at page 426; of Cri LJ.
In fact for general offences, Section 319(1) of the Code empowers the Court where during the course of enquiry or trial of an offence, if it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, to proceed against such person for the offence which he appears to have committed. In view of the language of Section 20-A of the Act, whatever is contained in Sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e. the original accused and against others mentioned in Section 20-A. In other words, joint trial for the same offence is permitted.
9. It is clear from the above noted decisions of the Supreme Court and this Court that the manufacturer can be impieaded at any stage of the trial and it need not be after framing charge under Section 246 of the Code of Criminal Procedure, if the case is tried as a summons case, instituted otherwise than on a police charge. Therefore, the arguments advanced by the senior counsel for the petitioner, relying upon the decision of a two judge bench of the Supreme Court, while considering the commencement of trial under general provisions of the Criminal Procedure Code, has no application to the commencement of trial of a case for the purpose of the special provision in Section 20-A of the P.F.A. Act. Hence, the contention of the petitioner that Annexure-C order passed by the learned Magistrate, impleading him as accused before commencement of the trial in this case is not sustainable is of no force.
10. In the decision reported in State of Punjab v. Devinder Kumar AIR 1983 SC 545: (1983 Cri LJ 980), the Supreme Court has observed as follows at page 982; of Cri LJ.
Adulteration and misbranding of food stuffs are rampant evils in our country. The Act is brought into force to check these social evils in the larger public interest for ensuring public welfare. In certain cases, the Act provides for imposition of penalty without proof of a guilty mind. This shows the degree of concern exhibited by parliament in so far as public health is concerned. While construing such food law Courts should keep in view that the need for prevention of future injury is as important as punishing a wrong doer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be before Court in such cases, Courts should not be too eager to quash on slender grounds the prosecutions for offences, alleged to have been committed under the Act.
Therefore, it is clear that in cases of adulteration of food articles, which is rampant in our country and a grave menace to the health of general public, the prosecution of the offenders cannot be slightly interfered by invoking the provisions of Section 482 of the Criminal Procedure Code on flimsy for trivial grounds. It is clear from the contentions raised by the petitioner that he has been seeking to quash the criminal proceedings initiated against him on flimsy and hypertechnical grounds, which cannot be countenanced by this Court to exercise the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure.
11. From my foregoing discussions, it is clear that there were sufficient materials before the learned Magistrate to implead the petitioner as sixth accused, by invoking the provisions of Section 20A of the Prevention of Food Adulteration Act and Annex-C order passed by the learned Magistrate, arraying the petitioner as sixth accused in this case is perfectly justified. Therefore, no interference is called for by this Court against Annexure C order passed by the learned Magistrate. Hence, the order passed by the Magistrate is confirmed and the Criminal Miscellaneous case is dismissed.