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Himachal Pradesh High Court · body

2008 DIGILAW 310 (HP)

Managing Director, H. P. v. State of H. P.

2008-06-20

KULDIP SINGH

body2008
JUDGMENT (Kuldip Singh, J.) - The petitioners have filed this revision, for setting aside order dated 18.2.2003 passed by learned Judicial Magistrate Ist Class (II), Dehra in Criminal Case No. 41-III/2001/98, titled as Food Inspector v. Parkash Chand, whereby Managing Director of H.P. State Civil Supplies Corporation Ltd. Shimla has been summoned as accused under Section 20-A of the Prevention of Food Adulteration Act, 1954 (for short Act). 2.The facts in brief are that Food Inspector purchased for analysis a sample of 600 grams rice superfine on 30.8.1996 from respondent No. 2, which was kept for sale to the general public, on payment of Rs. 4.55. The sample so purchased was put in three dry and clean polygthene envelops in equal proportion. The signature of the vendor was obtained on each packet. One part of the sealed sample along with Form VII was sent to Public Analyst Kandaghat by Regd. Parcel in a sealed packet. The specimen impression of the seal which was used to seal the sample and packet was separately sent to the Public Analyst in a sealed cover by Regd. Post. Remaining two parts of the sealed samples and two copies of the memorandum were handed over to the Local Health Authority as required under the rules. 3.The repot of the Public Analyst was received. According to which damaged grains were 5.84% against the maximum prescribed standard of 5% and total of foreign matter and damaged grains was 6.3% against the maximum prescribed standard of 6%. In the complaint, it has also been mentioned that Parkash Chand, Salesman had disclosed under Section 14-A that he had purchased the rice superfine from the Dehra Co-op. Marketing-cum-Processing Society Ltd. Dehra, a copy of notice Form VI was sent to him by Regd. Post. The complainant has submitted that Parkash Chand, salesman and the Dehra Co-op. Marketing-cum-Processing Society Ltd., Dehra have contravened Section 7 of the Act and therefore, action be taken against them under Section 16(1)(a)(i) of the Act. The learned trial Court issued process to the accused on 9.12.1997. The notice of accusation was put to the accused on 4.2.2000. The evidence was recorded on 13.9.2002 and 5.2.2003 by the learned trial Court. An application under Section 20-A of the Act was filed before the learned trial Court on behalf of respondent No. 3 herein. The learned trial Court issued process to the accused on 9.12.1997. The notice of accusation was put to the accused on 4.2.2000. The evidence was recorded on 13.9.2002 and 5.2.2003 by the learned trial Court. An application under Section 20-A of the Act was filed before the learned trial Court on behalf of respondent No. 3 herein. In the application, it has been stated that the rice was purchased from the sub-depot Incharge, Dehra, H.P. State Civil Supplies Corporation (for short Corporation) vide bill dated 3.8.1996 and it was in turn supplied to respondent No. 2 herein vide bill Ex.PW-2/B. It has been submitted that respondent No. 3 herein has nothing to do with the same. This fact was revealed for the first time on 5.2.2003 during evidence and therefore,sub-depot, Incharge of the Corporation at Dehra may be impleaded in the case and a prayer was made in the application accordingly. 4.The learned trial Magistrate vide order dated 18.2.2003 allowed the application and summoned Managing Director of the Corporation as accused in the case. The order dated 18.2.2003 has been assailed in this Court. 5.I have heard the learned Counsel for the parties on either side and gone through the record. The learned Counsel for the petitioners has submitted that the impugned order is not sustainable. The learned trial Magistrate has summoned the Managing Director of the Corporation without holding any inquiry. The learned Counsel for the respondents have supported the impugned order. 6.The learned Counsel for the petitioners has submitted that in the application under Section 20-A of the Act, it has been specifically stated that the rice was purchased from sub-depot Incharge, Dehra of the Corporation and prayer was made for summoning the sub-depot, Incharge, Dehra of the Corporation as accused. He has also submitted that except for application there was no legal evidence on record to show that in fact the rice was purchased from sub-depot, Incharge, Dehra of the Corporation. The learned trial Magistrate has not conducted any enquiry in accordance with law and simply on the basis of no objection of the Food Inspector has summoned the Managing Director of the Corporation as accused in the case. He has submitted that summoning of a persons as accused in the case is a serious matter and a person cannot be summoned as an accused in a routine manner. He has submitted that summoning of a persons as accused in the case is a serious matter and a person cannot be summoned as an accused in a routine manner. He has referred Section 20-A of the Act which is as follows :- “Power of court to implead manufacturer, etc. - Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal procedure, 1973 (2 of 1974) or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.” The learned Counsel for the petitioners has referred Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, 1998 SCC (Cri) 1400, wherein the Hon’ble Supreme Court has held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to carefully scrutinize the evidence brought on record and then examine if any offence is prima facie committed by any accused. 7.In Krishan Kumar Jain v. State of H.P;. and another, 1997(1) Sim.L.C. 363 : 1996(2) Cur.L.J. (H.P.) 342 the facts were that an application under Section 20-A of the Act was filed for summoning the petitioner in that case as co-accused on the averments that Haldi was purchased from the petitioner which was sold to the Food Inspector. The learned Magistrate without holding an inquiry into the averments made in the application under Section 20-A of the Act merely on the concession (assertion) of the Food Inspector directed the summoning of the petitioner as co-accused in that case. On those facts, it was held that summoning of the petitioner as co-accused in that case under Section 20-A of the Act is bad and cannot be sustained. On those facts, it was held that summoning of the petitioner as co-accused in that case under Section 20-A of the Act is bad and cannot be sustained. Before a person can be summoned under Section 20-A of the Act, the Court has to hold an enquiry to find out whether prima facie the article of food of which the sample was taken by the Food Inspector was purchased as alleged by the person making the application. In the present case also the impugned order was passed on the basis of concession (assertion) made by the Food Inspector. The learned Magistrate has not conducted any enquiry regarding the allegations made in the application under Section 20-A of the Act. More over in the application, the prayer was made to summon sub-depot Incharge, Dehra of the Corporation as accused in the case. There was no averment in the application concerning Managing Director of the Corporation nor any prayer was made for summoning the Managing Director of the Corporation as accused in the case. Therefore, learned trial Magistrate has erred in summoning under Section 20-A of the Act, Managing Director of the Corporation as accused in the case. In the facts and circumstances of the case, the impugned order is not sustainable. 8.No other point was urged. 9.The result of the above discussion, the petition is allowed. The order dated 18.2.2003 passed by learned Judicial Magistrate, Ist Class-II, Dehra in case No. 41-III/01/98 is set aside. The respondents through their learned Counsel are directed to appear before the learned trial Magistrate on 28.6.2008. The record of the court below be sent forthwith, so as to reach before the date fixed in the Court below. The learned Magistrate is further directed to decide the case expeditiously. M.R.B. ———————