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1989 DIGILAW 383 (MAD)

Radhakrishnan Nair v. Food Inspector

1989-07-25

PAREED PILLAY, SHAMSUDDIN

body1989
JUDGMENT Pareed Pillay, J.: Food Inspector launched prosecution for offence under Secs.2(1)(a)(m), 7(1) and 16(1)(a)(1) of the Prevention of Food Adulteration Act against the accused Somanathan Nair. When the Food Inspector was about to be examined, he submitted a report before the Court that Somanathan Nair is not the person from whom the milk was purchased. In the report he stated that the petitioner is the person who sold milk to him and the petitioner supplied false name and address to him. The learned Magistrate accepted the report of the Food Inspector and discharged Somanathan Nair. and impleaded the petitioner as the accused. Trial Court found him guilty. The appeal (Crl.A.No.26 of 1986) filed by him was dismissed by the lower appellate Court. 2. Contention of the petitioner is that the learned Magistrate went wrong in substituting him in the place of accused Somanathan Nair mentioned in the complaint and for that there was clear lack of jurisdiction as the Prevention of Food Adulteration Act does not authorise the Food Inspector to make any application to the Court to substitute another person for the accused mentioned in the complaint. Another contention is that application of Sec.319, Crl.P.C. is totally unwarranted in this case. In view of the conflicting decisions in Varghese v. Augusthy Varghese v. Augusthy (1988)1 K.L.T. 80 and Ram Chandra v. State of U.P. Ram Chandra v. State of U.P. 1985 Crl.L.J. 1677 Sreedharan, J., held that an important question of law arises for decision in the Criminal Revision Petition and that it should be heard by a Division Bench of this Court. 3. For the application of Sec.319, Crl.P.C, it must appear from the evidence during the course of any enquiry or trial that a person not being the accused has committed an offence and that he can be tried together with the accused already on the party array. In such a case, it is perfectly open to the Court to proceed against such a person for the offence which he appears to have committed. It is an essential pre-requisite that there must be evidence disclosing the commission of any offence by a person other than the accused so that he could be tried together with the original accused. Only in such a case, Sec.319, Crl.P.C, can be invoked. A report from the Food Inspector cannot be construed as evidence to invoke Sec.319. It is an essential pre-requisite that there must be evidence disclosing the commission of any offence by a person other than the accused so that he could be tried together with the original accused. Only in such a case, Sec.319, Crl.P.C, can be invoked. A report from the Food Inspector cannot be construed as evidence to invoke Sec.319. If the Food Inspector had given evidence before making the application to implead the petitioner as the accused position would have been different. As the report filed by the Food Inspector is not evidence the trial Court erred in impleading the petitioner as the accused. Moreover, as Somanathan Nair was discharged, the petitioner who was impleaded subsequently as the accused could not be tried together with the former. There was hardly any material for the trial Court to invoke Sec.319, Crl.P.C. and to proceed against the petitioner. 4. In Varghese v. Augusthy Varghese v. Augusthy (1988)1 K.L.T. 80 Balakrishnan, J., held that under Sec.319, of the Crl.P.C, the Court can proceed against any person only if it is proved that there is some evidence to show that the person has committed an offence and for which such person could be tried together with the accused. In Ram Chandra v. State of U.P. Ram Chandra v. State of U.P. 1985 Crl.L.J. 1677 there is only a passing reference to Sec.319, Crl.P.C, and its ingredients have not been analysed. As Sec.319, Crl.P.C, can be invoked against a person only if it is established that there is some evidence to hold that he has committed an offence which could be tried along with the original accused. 5. Sec.20-A of the Prevention of Food Adulteration Act postulates the following conditions: (i) Trial for an offence under the Act should be pending against a person other than the manufacturer, distributor or dealer of any article of food; (2) there must be evidence that such manufacturer, distributor or dealer is concerned with the offence; and (3) the Court must be satisfied that such manufacturer, distributor, or dealer is concerned with the offence. Powers under Sec.20-A cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that the Magistrate can act under this Section. Obviously Sec.20-A could not have been invoked to implead the petitioner as the sole accused. 6. Powers under Sec.20-A cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that the Magistrate can act under this Section. Obviously Sec.20-A could not have been invoked to implead the petitioner as the sole accused. 6. As Somanathan Nair was discharged of the offence alleged against him and as there is no provision under the Prevention of Food Adulteration Act or the Criminal Procedure Code whereby the petitioner can be impleaded in substitution of the original accused the impleading of the petitioner as the accused and consequent trial are vitiated for want of jurisdiction and hence unsustainable. The conviction and sentence entered against the petitioner by the trial Court and confirmed by the Additional Sessions Court are set aside. He is acquitted. The revision petition stands allowed. Fine if paid shall be refunded to the petitioner. His bail bonds shall stand cancelled. B.S. ----- Petition allowed.