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2003 DIGILAW 85 (HP)

STATE OF H. P. v. PUNJAB TRADING COMPANY

2003-04-23

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This revision petition is directed against the orders of learned Additional Sessions Judge (II), Kangra at Dharmshala, dated 29.6.2002 whereby the order of learned trial Magistrate, summoning the respondent as an accused was set aside. 2. In order to appreciate the controversy, few facts may be noticed: It appears, Food. Inspector, District Kangra visited the shop of Shiv Kumar, named and styled as M/s. Verma Karyana Store, Dhameta, Tehsil Nurpur, on 23.4.1996. The Food Inspector expressed his desire to lift the sample of "Arhar" for the purpose of analysis, from a bag which was kept for sale in the shop. The Food Inspector purchased 600 grams of Arhar Dal on payment of Rs. 12. A notice in Form No. VI was given to Shiv Kumar, who was present in the shop. The sample was divided into three parts. Each part was separately packed and sealed. One of the sample was sent to the Public Analyst, Kandaghat for the purpose of analysis. The Public Analyst found that the sample was not of "Arhar Dal" but was of "Kesari Dal", whereas "Arhar Dal" should be free from Kesari Dal in any form. The prosecution was launched against Shiv Kumar. Shiv Kumar moved an application, under Section 20(a) of the Prevention of Food Adulteration Act, before the learned trial Magistrate for summoning and impleading the Punjab Trading Company, Grain Market, Damtal, as co-accused, in the case as, according to accused Shiv Kumar, he had purchased Arhar Dal from the Punjab Trading Company, Damtal, vide bill No. 3126 dated 13.5.1995, from which the sample was taken by the Food Inspector. 3. The learned Trial Magistrate allowed the application by an order dated 25.4.1998 forming an opinion that the Proprietor of the Punjab Trading Company, Damtal, was also concerned with the offence for which the accused Shiv Kumar was facing the trial and directed the respondent herein, through its Proprietor Brij Mohan, to be summoned for offences punishable under Sections 16(l)(a)(i), 16(1-A) read with Section 7(i) and (ii) of the Prevention of Food Adulteration Act, 1254. 4. Dis-satisfied with the summoning order, the respondent Punjab Trading Company carried a revision petition before the learned Sessions Judge, Dharamshala, which was allowed by the learned Additional Sessions Judge, by the impugned order. 5. Aggrieved the State has filed the present petition. 6. I have heard Mr. Chaudhary, learned Additional Advocate General and Mr. 4. Dis-satisfied with the summoning order, the respondent Punjab Trading Company carried a revision petition before the learned Sessions Judge, Dharamshala, which was allowed by the learned Additional Sessions Judge, by the impugned order. 5. Aggrieved the State has filed the present petition. 6. I have heard Mr. Chaudhary, learned Additional Advocate General and Mr. Bal Krishan Sood, learned Counsel for the respondent. I have also been taken through the record. 7. Mr. Chaudhary, learned Additional Advocate General, has not been able to show how the impugned order of the learned Additional Sessions Judge is bad and not sustainable. 8. The learned Additional Sessions Judge, took note of the fact that the Food Inspector purchased the sample of "Arhar Dal" from accused Shiv Kumar. However, the sample was found to be that of "Kesari Dal" and not of Arhar Dal, whereas the respondent Punjab Trading Company, Damtal, sold to accused Shiv Kumar of M/s. Verma Karyana Store, Dhameta, Tehsil Nurpur, vide Bill No. 3126 dated 13.5.1995, 52 Kgms. of Arhar Dal and not Kesari Dal. 9. It is to be noticed that 52 Kgms. of Arhar Dal was sold to M/s. Verma Karyana Store, Dhameta, of which accused Shiv Kumar ib the Proprietor, on 13.5.1995 by the bill in question. The smaple was lifted by the Food Inspector on 23.4.1996, almost after one year of the purchase of Dal by M/s. Verma Karyana Store, Dhameta. The sample was lifted by the Food Inspector from the bag containing 52 kgms. of Arhar Dal. It is inconceivable, as submitted by the learned Counsel for the respondent that even after one year quantity of Arhar Dal remained the same particularly when the bag from which the sample was lifted was not sealed and was kept open for sale. The learned Additional Sessions Judge, also took note of the fact that there was no material on record to show that the accused Shiv Kumar had kept the Dal purchased from the Punjab Trading Company in the same condition in which it was purchased. I see no irregularity in exercise of the jurisdiction of the learned Additional Sessions Judge, in this case. 10. I see no irregularity in exercise of the jurisdiction of the learned Additional Sessions Judge, in this case. 10. So far question of propriety of interference by the learned Additional Sessions Judge, at the stage of summoning of the accused is concerned, the Apex Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749, ruled that summoning of an accused in a criminal case is a serious matter. The order of the Magistrate, summoning an accused, must show application of mind to the facts of the case and the law applicable thereto. Their Lordship observed: "He has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 11. It is true that the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless, but that does not mean, their Lordships observed in Pepsi Foods Ltd., that the accused cannot approach the High Court under Section 482 of the Code against the summoning order particularly when there is no material to make any case against the accused summoned by the Magistrate. 12. In the facts and circumstances of this case, the impugned order made by the learned Additional Sessions Judge, cannot be said to be perverse or lacking jurisdiction. There is no merit in this revision petition. The petition is dismissed. 13. The record of the learned trial Court shall be remitted back immediately. 14. It is expected, taking into consideration that this case pertains to year 1998, the trial Court shall make all efforts to conclude the case within next six months. Revision dismissed.