Rajasthan High Court - Jaipur
Nathu Lal vs State Of Rajasthan And Ors. on 7 July, 1989
Equivalent citations: 1989(2)WLN377
JUDGMENT M.B. Sharma, J.
1. This revision petition is preferred against the order dated 3rd April, 1989 by which the ACJM No. 2, Kota has ordered to implead the petitioner as an accused in the case, under Section 20A of the Prevention of Food Adulteration Act, 1954 (for short, "the act").
2. This case has its own chequered history. The incident relates to the year 1972, and the case is still pending in the court of ACJM No. 2, Kota. Om Prakash Pal, the then Food Inspector, Kota, purchased some sample of Til oil on 2nd July, 1972, from the shop of Mohanlal, where, Kaushal was the salesman. The said sample was then sent for analysis which on examination, was found to be adulterated. After obtaining sanction, a complaint was lodged against Mohanlal and Kaushal Kumar under Section 7/16 of the Act, in the year 1972 The trial of the case started, and on 26th June, 1976 Mohanlal moved an application under Section 20A of the Act disclosing that the from which the sample was taken on 2nd July, 1972, was purchased by him duly sealed, from M/s Sunderlal-Hansraj of Kota. He also submitted a bill for the purchase of the said oil tin, dated 26th June, 1972. The trial court granted that application; and Hansraj being the Proprietor of firm M/s Sunderlal Hansraj was impleaded as an accused in the case. Thus again the trial stated. On 10th November, 1977, Hansraj moved another application under Section 20A of the Act, where in, he took alternative pleas. His first contention was that the sample purchased on 2nd July, 1972 by the Food Inspector, from the shop of Mohanlal, was not taken from the very tin of oil, which was sold by him to Mohanlal. His second plea was that he had purchased the tin from the shop of M/s Shivnath Motilal in which firm Nathu Lal was partner. The trial court, after hearing on the application, allowed the application by order dated 12th March, 1984 impleading firm Shivnath Motilal through Nathulal partner, as an accused. That order was challenged by Nathu Lal, the petitioner before the Sessions Judge, Kota, and the learned Sessions Judge, accepting his contention, set aside the order of the learned ACJM dated 12th March, 1984 The trial of the case then started, The prosecution examined all its witnesses and closed the evidence. The accused persons also gave statement Under Section 313, Cr PC and entered into defence. Petitioner Nathu Lal and Muneem Mohanlal were examined as defence-witnesses. By that time, the firm. M/s. Shivnath Motilal had already dissolved. After recording statement of Nathulal as a partner of the dissolved firm Shivnath-Motilal, the APP moved another application on 12th Dec, 1988, requesting the court to implead Nathulal as an accused in the case. The reason was that Nathulal had admitted in his statement that he sold 20 tins of Til oil to Hansraj; and on the basis of this statement, the APP moved the application for impleading him as an accused. The learned Magistrate vide impugned order dated 3rd April, 1989, impleaded petitioner Nathulal as an accused in the case. That order of the Magistrate has been challenged in this petition.
3. Mr. B.L. Mandhana, the learned Counsel for the petitioner brought the entire facts of the case to the notice of this Court and argued that there are so many legal points which are sufficient to quash the order dated 3rd April, 1989. His first contention was that the order of the learned Magistrate (ACJM) is without jurisdiction. According to him, Section 17 of the Act shows that where an offence under the Act has been committed by a company, the person, if any, who has been nominated under Sub-section (2), to be in-charge of, and responsible to, the company for the conduct of the business of the company, or where no person has been so nominated, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. From the Explanation given under this section, it becomes clear that the word "company" includes a firm. So, pointing out Section 17 of the Act, it was argued that it was the duty of the prosecution to show prima facie that petitioner Nathulal, at the time of taking sample, was either in charge of the business of the firm, from where the sample was taken, or he was duly nominated, as envisaged in Sub-section (2) of Section 17 of the Act, for making him responsible to the conduct of the business of the company. Here is not a case of the prosecution that Nathulal petitioner had sold the sample of oil to the Food Inspector, nor is it the allegation that at the time of taking sample, Nathulal was in charge of the business or the shop from where the sample was taken So, the argument is that in no circumstances, Nathulal can be impleaded as an accused, as Section 17 defines. To support his argument, Mr. Mandhana relied on the case of P.R. Neelkamham v. State of Raj. and Ors. 1986 RLR 172, where in, it was held that there must be allegation in complaint that the Directors and salesman were in charge and responsible for the conduct of the business of the company, and that in the absence of such allegation no prosecution could be launched and no cognizance could be taken against the Directors and salesman. In that case, it was further observed that to apply. Section 20A, there should be some evidence before the Court and that distributor or dealer can be impleaded as accused only during trial. So, the principle laid down in the above case-law is that there must be some evidence against Nathulal petitioner to show that be was in charge and responsible for the conduct of the business of the firm/ shop from where the sample was taken by the Food Inspector. As there is no such evidence on the record, the order impleading him as an accused, is a bad order, argued Mr. Mandhana. This argument has substances.
4. During the trial in the year 1977, when Hanraj moved an application Under Section 20A, petitioner Nathulal was impleaded as an accused; and the main ground in that application taken by Hansraj was that he had purchased the oil-tin from the firm M/s. Shivnath Motilal, who were manufacturers of Til oil. On the basis of this information Nathulal was impleaded as an accused. Against that order, Nathulal then filed a revision in the Court of Sessions Judge, which was accepted vide order dated 12th March, 1984, by which, the order impleading Natbulal as an accused, was set aside. At that time, the point was that the oil was sold by the firm 'Shivnath-Motilal' to Hansraj, and Hansraj had sold it to Mohanlal, the dealer, from whose possession, the sample was taken. So, on this very ground when once a person was made accused and that order was set aside by the Sessions Judge, on the same ground and contention, upon the APP's moving a second application on 12th Dec, 1988 and on the same circumstances, the learned ACJM could not have granted the application making the petitioner against accused in the case. I fail to understand, how the learned ACJM passed the order. This is a very strange order, which shows that either it was not brought to the notice of the learned Magistrate that the earlier order dated 12th March, 1984, impleading Nathulal as an accused was set aside by the learned Sessions Judge, or knowingly that there was such an order, the learned Magistrate again passed this order; and if he has done it knowingly then this is an unfortunate case which shows ignorance of principles and niceties of law of the trial court. Therefore, this is a ground on which the impugned order is liable to be set aside.
5. The contention of Hansraj in his application as well as statement recorded Under Section 313, Cr. PC is that be had sold the tin of Til oil to Mohanlal. vendor, but, the sample which was taken by the Food Inspector on 2nd July, 1972, was not from that very tin, which was sold by him to Mohanlal. There is nothing on the record to show that the sample was taken by the Food Inspector from the tin which was sold by Hansraj to Mohanlal. In the absence of any proof on this aspect, the contention of Hansraj is a very strong one. When he raised this objection, it was duty of the prosecution, to prove that the sample was taken from that very tin which was sold to Mohanlal by Hansraj. So, the prosecution should have proved this fact in the begining. Thus, the fact goes that Hansraj stated that he had purchased the oil from the firm M/s. Shivnath-Motilal. Its partner Nathulal has admitted that he had sold a number of oil tins to Hansraj. But, this statement does not mean that the very tin from which the sample was taken by the Food Inspector on 2nd July, 1972,was the same tin which was sold by the firm M/s. Shivnath-Motilal to Hansraj. So, it was not the tin which was later on sold by Hansraj to Mohanlal. In the absence of any evidence; I fail to understand, how the learned Magistrate gave the finding that Nathulal was responsible for the adulterated oil which was purchased from the dealer, Mohanlal. The trial court could not understand this matter in its right perspective. So, this is also a ground which is sufficient to set aside the impugned order which cannot be said to be a correct order.
6. It was also argued that when a vendor purchases some food article, the deales a certificate of warranty. Sections 14 & 19 of the Act deals with warranty. According to Section 14, no manufacturer or distributor of or dealer in. any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. This provision has been made in order to safeguard the distribution of food articles. When sealed tins are sold to vendors, it has been made obligatory on the manufacturer/distributor/dealer to issue a warranty in writing to the vendor about the nature and quality of the article. So, if a manufacturer sells a food article to a vendor, he is bound to give this warranty. If a distributor sells a food article, he is bound to give this warranty. If a distributor sells a food article, he is bound to issue this warranty; and if a dealer sells it, he is also bound to give this warranty.
7. In the present case according to Mohanlal, Hansraj was the dealer in Til oil and he had sold it to him. So, Nathulal who was the manufacturer, had not sold the til oil to vendor Mohanlal, that is to say that Nathulal did not give any warranty in writing to Mohanlal. Similarly, the distributor did not sell the oil, he was not required to give any warranty. The dealer Hansraj had sold it to Mohanlal; so, Hansraj was to issue that warrantly. The said warranty should have been taken on record by the prosecution in order to show as to which tin was sold by dealer Hansraj to Mohanlal. Whether the tin from which the sample was taken by the Food Inspector was that very tin for which the warranty was given by Hansraj, to this effect, there is no proof on the record. This is also a lacuna, in the prosecution case. If they want to connect Nathulal, the manufacturer, with this crime, they must have connected him with the sample showing that this was the sample taken from that very tin which was sold to him by Hans Raj who had purchased it from the manufacturer, M/s Shivnath Moti Lal. There is nothing on the record to this effect. So, on this aspect also, the order of the learned ACJM is a bad one.
8. It was then argued that the sample was taken in the year 1972, and after a lapse of 17 years, the petitioner. Nathulal has been impleaded as an accused. According to Section 468, Cr PC, the limitation for taking cognizance is 3 years only, and in this case, cognizance against the petitioner has been taken after 17 years. So, on this aspect also, taking cognizance after 17 years, is bad in the eye of law and cannot be maintained, argued the learned Counsel for the petitioner. This argument too has substance.
9. In view of my above discussion, I find that the impugned order dated 3rd April, 1989, is bad in law and is liable to be quashed.
10. Consequently, the miscellaneous petition is allowed; and the order dated 3rd April, 1989, passed by the ACJM No. 2 Kota, in Criminal Case No. 511/83 (State v. Kaushal Kumar), is here by quashed.