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Uttarakhand High Court · body

2004 DIGILAW 206 (UTT)

B. P. Oil Mills Ltd. , Mai Uhan, Agra v. State

2004-08-31

J.C.S.RAWAT

body2004
Judgment Heard Sri Alok Singh learned senior counsel for the petitioner and Sri Nandan Arya learned A.G.A. 2. The petition has been filed under section 482 of the Code of Criminal Procedure (for short 'Code') to quash the proceedings in Criminal Case No. 4339/ 1992 State Vs. Lajpat and others under section 7/16 Prevention of Food Adulteration Act pending in the court of CJM, Haridwar against the petitioner (accused no. 3). 3. Brief allegations in the complaint lodged before the Magistrate concerned was that on 27-11-1990 the sample of mustard oil was alleged to have been taken by the food inspector from the shopkeeper Lajpat Rai at Jwalapur Road, Khalilabad, Saharanpur. According to the prosecution the sample was sent to the laboratory for examination and it was found that the argemone was positive while other tests were within the limits of the prescribed standard. Thereafter, the sample was sent to the Central Food Laboratory vide courts order dated 07-01-1993. The Central Food Laboratory vide report dated 5-5-1993 found that the Argemone was negative, however the sample of Mustard Oil was found adulterated on other accounts. The petitioner has alleged that the accused no. 2 issued a bill to the accused no. 1 with regard to the sale of the said oil. The petitioner (accused no. 3) B.P. Mills Ltd., therefore, had not issued any bill, cash memo or warranty with regard to the oil in question. The Food Inspector never sent any notice to the petitioner company. The learned senior counsel for the petitioner further contended that the petitioner has not issued any warranty and he could not be summoned under section 20(A) of the Prevention of Food Adulteration Act 1954. 4. The learned senior counsel in support of his arguments has referred the decision in M/s Chet Ram Parumal Oil Mill Vs. State of U.P. and another 1999 (38) ACC p/938, in which it has been held :- "5. I have heard Mr. B.D. Mandhyan learned counsel for the applicant and learned A. G.A. Inspite of notices being served to the opposite party, no counter affidavit has been filed. The revision is pending since 7-12-1984 and about 14-1/2 years have elapsed. Learned counsel for the applicant contended that the name of the applicant was not disclosed by the vendor as required by section 14 of the Act. The revision is pending since 7-12-1984 and about 14-1/2 years have elapsed. Learned counsel for the applicant contended that the name of the applicant was not disclosed by the vendor as required by section 14 of the Act. No copy of the notice was sent by the Food Inspector in accordance with the provisions of Section 13(2) of the Act. The learned counsel for the applicant also referred to Section 14 of the Act, which requires the manufacturer not to sell any article of food 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. Section 14 of the Act, further provides that the bill, cash memorandum or invoice given by the manufacturer shall be deemed to be a warranty given by such manufacturer. Learned counsel for the applicant contended that the applicant had neither given any warranty nor any bill, cash memorandum or invoice to the vendor nor the Vendor had purchased the oil-tins from it, therefore, the applicant could not be tried. It was next contended that by the learned counsel that in the absence of any evidence available on the record or collected by the Food Inspector, the applicant could not be summoned. The learned counsel also referred to Section 20-A of the Act which empowers the Magistrate to summon the manufacturer at any stage of the trial if any evidence is adduced before him that the manufacturer is also concerned with the offence." ["6. Learned Additional Government Advocate could not point out any evidence indicating involvement of the applicant in the crime. "7. Considering the submissions made by learned counsel for the parties, I find that the Magistrate committed illegality in summoning the applicant. Therefore, this revision is allowed and the impugned order dated 29.9.84 is hereby set aside so far as it relates to the revisionist manufacturer. The Magistrate shall proceed against the other accused persons. However, it is made clear that at any stage of the trial if any evidence is brought on record indicating that the revisionist is concerned with the crime, it shall be open to the Court concerned to summon the revisionist and proceed against him as if the prosecution had been instituted against him under Section 20 of tile Act. The interim order dated 7.12.84 is hereby vacated. "J 5. The interim order dated 7.12.84 is hereby vacated. "J 5. The learned senior counsel in support of his arguments has also referred the decision in Om Prakash Shivprakash Vs. K.I. Kuriakose, see 1999 (8) p/633 that the court has the power to implead the manufacturer, distributor or dealer under section 20-A of the Prevention of Food Adulteration Act and this power cannot be invoked before the stage of adducing the evidence in the trial. The Hon'ble Supreme Court has further clarified that the trial for the 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. The evidence can be adduced only after recording the plea of the accused. Thus, the position is clear that power under section 20-A cannot be invoked before the stage of adducing evidence in the trial, nor can it be invoked after the conclusion of the trial. 6. The learned AGA conceded the position of facts and law as has been laid down under section 14 and 20A of the Act. 7. In the instant case, the petitioner had neither given any warranty nor any bill, cash memo or invoice to the vendor nor the Vendor had purchased the oil from the petitioner. In view of the above position of law and fact, the petitioner is not liable to be tried at this stage. 8. In view of the foregoing discussion, I find that the Magistrate concerned has committed an error in summoning the applicant. Therefore, the proceedings in Criminal Case No. 4339/1992 State Vs. Lajpat and others under section 7/16 Prevention of Food Adulteration Act is quashed only against the petitioner. So far as the proceedings against the other accused is concerned, the proceedings shall proceed against the other accused. However, it is made clear that at any stage of the trial if any evidence is brought on record indicating that the petitioner is concerned with the crime it shall be open to the court concerned to summon the petitioner and proceed against him. 9. The petition is disposed of accordingly.