Orissa High Court
Lingaraj Oil Industries Ltd. ... vs State Of Orissa on 10 April, 2003
Equivalent citations: 2003(I)OLR550
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The petitioner is an accused in 2(c) C.C. Case No. 139 of 1994 pending in the Court of the learned S.D.J.M., Bolangir and has approached this Court in this application under Section 482, Cr. P.C. challenging the order dated 26.9.2001 passed by the learned Magistrate rejecting the prayer of the petitioner to reconsider the order taking cognizance.
2. From the record it appears that the Food Inspector, Bolangir took sample of Refined Rice Bran Oil from accused No. 1., M/s. Rambhagat Shyamlal Agrawala, and sent the same to the Public Analyst for analysis. At the time of taking simple the accused No. 1 disclosed to the Food Inspector that in had purchased the oil vide Bill No. 43 dated 2.4.94. The sample sent to the Public analyst indicated adulteration for which the report was submitted after obtaining sanction from the C.D.M.O. for commission of offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act against the petitioner and the other accused. After the learned Magistrate took cognizance of the said offence, an application was filed by the petitioner for reconsideration of the order taking cognizance referring to Section 20-A of the Act.
3. Shri Pujari, the learned counsel appearing for the petitioner submitted that the learned Magistrate could not have taken cognizance of the offence so far as the petitioner is concerned at the first instance. He further contended that petitioner undisputedly being the manufacturer can be added during trial in the event of availability of evidence to show that the adulteration had taken place at the hands of the manufacturer. In support of his contention, the learned counsel referred to Section 20-A of the Act and also relied upon a decision of the Apex Court in the case of M/s. Omprakash Shivprakash v. K.I. Kuriakose and Ors. reported in A.I.R. 1999 S.C. 3870. The learned Addl. Standing Counsel, on the other hand, submitted that since the name of the petitioner was disclosed during investigation by the accused No. 1 as manufacturer of the oil and there was document to show that accused No. 1 had purchased the oil from the petitioner, there was no legal bar in submitting a report for commission of the offence so far as the petitioner is concerned and the learned Magistrate was also justified in taking cognizance of the said offence.
4. On perusal of the impugned order, it appears that the contention raised before this Court had also been raised before the learned Magistrate. Though the learned Magistrate has referred to the decision of the Apex Court, he came to hold that in the facts of the present case, the said decision has no application and accordingly rejected the application for reconsideration of the order taking cognizance. On the perusal of the lower Court records, I find that the only material available so far relating to the present petitioner is the statement of the co-accused stating that he had purchased the oil from the petitioner under Bill No. 43 dated 2.4.94. Question that arises for consideration is whether the statement of the co-accused is enough to submit a report stating that the present petitioner has also committed the offence as alleged. Section 20-A of the Prevention of Food Adulteration Act provides as follows :
"20-A. 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."
5. The said provision clearly indicates that a manufacturer, distributor or dealer can be proceeded with only during trial of any offence under the Act alleged to have been committed by any person not being the manufacturer, distributor or dealer provided the Court is satisfied on perusal of evidence led before it that the manufacturer is also concerned with the offence. The Apex Court in the case of M/s Omprakash Shivprakash v. K.I. Kuriakose and others (supra) observed as follows :
"Power of the Court to implead the manufacturer, distributor or dealer, in cases involving offences under the Act, is envisaged in Section 20-A of the Act. The 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. 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 inquiry 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 "the evidence adduced before it during the trial'. In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends. The trial of offences under the Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code, if the Magistrate opts to hold summary trial. Hence, evidence in a trial under the Act can be adduced only after recording the plea of the accused as envisaged in the said section. Thus it is clear that a Magistrate can implead any person under Section 20-A of the Act only after reaching the stage envisaged in Section 254(1) of the Code. The power cannot be invoked before stage of adducing evidence in trial, nor can it be invoked after conclusion of trial."
6. Though the learned Magistrate may be correct in saying that the facts of the present; case are different than that of the decision referred to above, the principle laid down by the Apex Court while interpreting Section 20-A of the Act fully apply to the present case. There being no other evidence available on record at this stage except the statement of the co-accused. I am of the view that the learned Magistrate should have allowed the application of the petitioner. Only at the stage of trial, if evidence is placed before the Court to show that the petitioner is also concerned with the offence, the learned Magistrate could proceed under Section 319 of the Code of Criminal Procedure or in terms of Section 20-A of the Prevention of Food Adulteration Act.
I, therefore, set aside the impugned order as well as the order taking cognizance so far as the present petitioner is concerned and direct that in the event in course of trial evidence is placed before the learned Magistrate to show that the petitioner is also concerned with the commission of offence, it will be open for him to proceed under Section 319, Cr. P.C. or in terms of Section 20-A of the Food Adulteration Act.
The Criminal Misc. case is accordingly allowed.