Sebastian v. State of Kerala — 1998 DIGILAW 225 (KER)

Judgment :- S. Marimuthu, J. This petition is moved by one Sebastian, who is the first accused in S T. No. 70 of 1992on the file of the Court of the Judicial Magistrate of the First Class No.1, Cherthala to give a direction to the said Magistrate to evaluate the evidence already recorded and dispose of the case against him on merit. To appreciate the contentions of both the sides the common facts as well as the rival submissions of both the sides can be narrated hereunder. The present petitioner's wife by name Josephine was owning a grocery shop bearing No. 635 in Ward No. VIII of Cherthala South Panchayat, in which the present petitioner being the husband of the owner had been doing the business. Admittedly, the wife who was the second accused is now no more and at the time of launching the present criminal prosecution she was away from India. On 7.1.1992 at about 10 a.m. the second respondent, who is the Circle Inspector of Food, Cherthala Circle inspected the above shop. At the time he purchased 375 kilograms of gingelly oil on payment of Rs. 15 and Ps. 70, for which Ext. P3 voucher was issued by the petitioner. The second respondent divided the gingelly oil into three equal parts, packed them and sealed in accordance with the provisions of the Act. Thereafter he sent one of the samples to the Public Analyst with the Memorandum in Form No. VII and two other samples he sent to the Local Health Authority. The present petitioner/ accused at the time of purchase by the second respondent, disclosed that he originally purchased gingelly oil from the third respondent herein by name P.X; Joseph & Sons, Merchants and Commission Agents, Muttom Bazar, Cherthala. On account of the disclosure by the petitioner a copy of the Form VI notice was served to the third respondent, for which they sent a reply marked as Ext. P15. Then PW1, second respondent herein, filed a complaint under Ss.2(ia)(m), 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 read with item A17-11 of appendix-b to R.5 of the Prevention of Food Adulteration Rules, 1955. 2. On receipt of the summons, the present petitioner first accused appeared before the Magistrate. P15. Then PW1, second respondent herein, filed a complaint under Ss.2(ia)(m), 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 read with item A17-11 of appendix-b to R.5 of the Prevention of Food Adulteration Rules, 1955. 2. On receipt of the summons, the present petitioner first accused appeared before the Magistrate. However, the summons sent to his wife (second accused) who was then abroad, returned, unserved and therefore, the case against the present petitioner was split up and trial commenced. 3. In the trial the present second respondent as PW.1 was examined and Ext. P1 to 18 and Ext. Dl were marked. After the evidence was closed, the case was posted for 10 times for arguments and finally the arguments were heard and the judgment was reserved. Then the Magistrate took a pretty long time for pronouncing the judgment. And on 23.12.1994, he passed an order for de novo trial on impleading the third respondent as third accused as per the provisions provided in S.20A of the Prevention of Food Adulteration Act, 1954 thereinafter called the Act) read with S.319 of the Criminal Procedure Code. 4. After the third respondent was brought on record as one of the accused trial commenced and PW1 was again brought to the witness-box and examined in chief examination and only at that stage, the present petition was moved by the petitioner before this Court and obtained a stay. 5. On account of the above facts available before me, now the point to be decided is whether the Magistrate can be directed to dispose of the criminal case against the petitioner/first accused on the basis of the evidence already recorded before the third respondent herein was brought on record as an accused or whether the entire proceedings in the said S.T. No. 70 of 1992 can be quashed. The learned counsel appearing for the petitioner at the outset advanced an argument that in view of the mandatory provisions enjoined in S.20A of the Act and in S.319 of the Cr. P.C., after a new party has been brought on record as co-accused, against him alone fresh trial can be proceeded and with regard to the other accused who have been already on record, the case can be disposed of on the basis of the evidence already recorded against them. P.C., after a new party has been brought on record as co-accused, against him alone fresh trial can be proceeded and with regard to the other accused who have been already on record, the case can be disposed of on the basis of the evidence already recorded against them. Therefore, the order of the learned Magistrate that a fresh trial has to be commenced against all the accused including the third respondent who was later on impleaded as a co-accused, discarding the evidence already recorded against the present petitioner is quite against the above statutory provisions of law. To fortify the above submission the learned counsel would explain that where so many infirmities have been collected by the accused person in his favour during the trial against him before the new accused has been brought on record those infirmities will be concealed, whereby the prosecution will enable itself to strengthen its case against all accused on account of the fresh trial and in such a case the original accused, herein being the petitioner, will be caused incurable harm and as a result valuable right to which he is entitled as provided in the Indian Evidence Act and the Criminal Procedure Code will be lost. The above submission of the learned counsel, namely, the injury to be caused to the petitioner on account of the fresh trial against him is, indeed, convincing and it is in accordance with the statutory provisions of the law, and therefore, the above submission cannot be set apart. 6. However, the Public Prosecutor submitted that in view of the principles laid down by the Supreme Court in Delhi Cloth and General Mills Company Limited v. State of Madhyapradesh and Ors. (1995) 6 Supreme Court Cases 62 a joint trial can be held under S.20A of the Act. As a reply to the contention of the learned Public Prosecutor, the counsel for the petitioner submitted that in Delhi Cloth and General Mills Co. Ltd. v. State of M.P. and Ors. (1995) 6 Supreme Court Cases 62, the principle laid down is that only during the course of the trial as enjoined in S.20A of the Act, the manufacturer, dealer or distributor can be brought as a co-accused and joint trial can be conducted in order to avoid the multiplicity of the criminal prosecution. Ltd. v. State of M.P. and Ors. (1995) 6 Supreme Court Cases 62, the principle laid down is that only during the course of the trial as enjoined in S.20A of the Act, the manufacturer, dealer or distributor can be brought as a co-accused and joint trial can be conducted in order to avoid the multiplicity of the criminal prosecution. But such joint trial is not recognised by the Supreme Court in the above said decision in a case where the entire evidence was over, arguments were advanced and then pending delivery judgment. I examined the above submissions of both sides on the statutory provisions laid downiness. 20 A of the Act and S.319 of Crl.P.C. and also principle laid down by the Supreme Court in the above citation. My careful scrutiny of them will convince myself that a joint trial can brightly held by the trial Magistrate or Trial Judge as provided under S.20A of the Act and S.319 of the Cr. P.C. only before the evidence are closed in the said prosecution. In both the sections the words employed during the trial have got a great importance. In the common parlance one can easily understand "during the trial" means before the evidence is closed in a proceedings. When the matter is finally heard and then pending delivery of judgment, no strength of imagination it can be said that it was "a stage of during trial". In this view of the matter it can be un hesitatirigly said that the instant case before me was not reopened by the learned Magistrate during the original trial. And it was reopened by the Magistrate for denovo trial only after the entire evidence was over, namely, the trial was over and when it was pending delivery of judgment. When the matter is reserved for judgment or when it is pending delivery of judgment, as I have pointed out above, it cannot be meant a trial is still ending on the file of the concerned court. That be the real state of affairs, the action of the Magistrate in reopening the case and proceeding the same against the present petitioner and the third respondent as denovo trial, discarding the entire evidence already recorded against the present petitioner, as rightly pointed out by the counsel for the petitioner, valuable right of the petitioner is deprived of. That be the real state of affairs, the action of the Magistrate in reopening the case and proceeding the same against the present petitioner and the third respondent as denovo trial, discarding the entire evidence already recorded against the present petitioner, as rightly pointed out by the counsel for the petitioner, valuable right of the petitioner is deprived of. Hence, the above principle laid down by the Supreme Court in the above citation, I do not think, will render any assistance to the case of the prosecution. 7. The next point set forth by the petitioner would be, on the footing of the principles laid down by the Supreme Court in yet another decision in M/s. Bhagwan Das Jagdish Chander v. Delhi Admn. & Ann (AIR 1975 Supreme Court 1309) that there must be a ground or a prima facie case on the prosecution side that at the time of the purchase by the vendor from the manufacturer, dealer or distributor there was a connecting link between the activities of both the vendor and the distributor or the manufacturer or the dealer that the substance then purchased was adulterated and that had been purchased in order to sell to the public. In other words, there was consensus of minds between the manufacturer and the vendor at the time of the purchase by the vendor from the manufacturer, that is to say, both of them had known that it was an adulterated article and that had been transacted by them for public sale. In the above case, this principle has been laid down by the Supreme Court in paragraph No. 24 which is extracted hereunder: "The result is that we think that, in a suitable case, a vendor, a distributor and a manufacturer could be tried together provided the allegations made before the court show that there are connecting links between their activities so as to constitute the same transaction. The connecting links, in a case such as the one before us, could be provided by; firstly, the fact that a sale at an anterior stage could be viewed as the cause of the subsequent sale; secondly, the allegation that each of the accused parted with the article of food when it was in an adulterated state; and thirdly, by the common object of the manufacturer, the distributor and the vendor that the article should reach the consumer to be used as food. The third and last mentioned link seems decisive and must tilt the balance in favour of legality of a joint trial of the parties concerned. B ut we are also conscious of the fact that courts cannot ignore broader requirements of justice." In the instant case on hand the voucher issued by the third respondent as a dealer to the petitioner is marked as Ext. D1. Accordingly to the case of the prosecution, as noticed above, gingelly oil was purchased by the second respondent from the petitioner on the relevant day. It is also the case of the prosecution that the said gingelly oil was originally purchased by the petitioner from the third respondent under Ext. D1. But Ext. D1 does not contain gingelly oil, on the other hand, it discloses that two tins of oil were purchased by the petitioner from the third respondent. When that be so it was the plea taken up by the third respondent by sending a reply notice to the second respondent, Food Inspector that he never sold gingelly oil to the petitioner herein under Ext. D1. That reply had also been marked as Ext. P15 in the trial initiated at the second time. When that he the real facts I feel that prosecution has also failed to establish that gingelly oil was purchased by the petitioner from the third respondent under Ext. Dl. In such circumstances, it is very difficult to bring third respondent as one of the co-accused under S.20A of the Act read with S.319 Cr. P.C, As adverted to above the view of the Supreme Court is quite obvious in Bhagavan Das Jagdish Chander v. Delhi Admn. & Ann (AIR 1975 Supreme Court 1309) that there must be a connecting link between the activities of the vendor and manufacturer so as to constitute a transaction which is legally forbidden. P.C, As adverted to above the view of the Supreme Court is quite obvious in Bhagavan Das Jagdish Chander v. Delhi Admn. & Ann (AIR 1975 Supreme Court 1309) that there must be a connecting link between the activities of the vendor and manufacturer so as to constitute a transaction which is legally forbidden. In the instant case, it is clear as discussed above, that there is no material on the prosecution side that there was such connecting link between the vendor/ the present petitioner herein and the manufacturer/ the third respondent at the time of the purchase under Ext. D1. Therefore, on account of the forgoing reason I am of the clear view that the prosecution even against the third respondent cannot be encouraged particularly in view of the principles of law detailed above as well as the facts and circumstances of the case. Hence, though the relief sought for in this petition is to the effect that the prosecution can be proceeded against the present petitioner on the evidence already recorded before the third respondent was brought as a co-accused, on account of the peculiar circumstances narrated above and also on account of the totally insufficient evidence on the prosecution side to base a conviction against the petitioner no order can be passed as prayed for in this case. For if the Magistrate is directed to proceed as prayed by the petitioner, it will not serve any purpose excepting the waste of judicial time of the Magistrate. And this court in such situation will not be a silent spectator. Therefore, the entire proceedings in S.T. No. 70/92 can be quashed in the interest of justice. In the result proceedings in S.T. No. 70/1992 on the file of the official Magistrate of the First Class No. 1, Cherthala stands quashed.