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Himachal Pradesh High Court · body

2008 DIGILAW 365 (HP)

Shankar Lal Shri Ram v. State of H. P.

2008-07-21

SURINDER SINGH

body2008
ORDER :- In this petition, the petitioner has assailed the order passed by the learned trial Court on 23-7-2005 impleading the petitioner herein, in Criminal Case 48/3 of 1999, Food Inspector v. Baldev Raj, as co-accused under the provisions of Section 20(A) of the Prevention of Food Adulteration Act, 1954, in short "the Act". 2. In brief the admitted facts are that on 14-5-1999 at 12.30 p. m. the Food Inspector found the respondent No. 2 conducting the business in premises of the shop running under the name and style of M/s. Himachal Janta Store, at Totu district Shimla, he also found 50 kgs of Dal Massri (i.e. 8Kgs Dal Massri Kept in the wooden box and 42 kgs in the gunny bag) kept in the shop for its sale to the general public. The Food Inspector picked up its sample from Dal Massri from the wooden-box in accordance with the Act and the rules framed thereunder. A panchnama was prepared on the spot which was signed by the accused and the witnesses present there. One sample was sent to the Public analyst, Kandaghat, for analysis and the remaining two parts of sample were deposited with the Local Health Authority, Municipal Corporation, Shimla. The Public Analyst, Kandaghat on analysis found the sample adulterated as it contained synthetic food colour "Sunset yellow FCF" whereas Dal Massri (Split pulse masur) should be free from added colouring matter. The prosecution was launched against the Baldev Raj respondent 2 after obtaining the consent of the LHA as per law. 3. Baldev Raj respondent No. 2 moved an application, on 7-11-2001 under Section 20(A) of the Act to implead the M/s. Shimla trading company respondent No.3 herein as co-accused at the end of the trial when the case was fixed for the defence evidence. His contention in the application was that he had purchased Dal Massri from M/s. Shimla Trading Company co-accused, on 1-5-1999 vide bill No. 19412, in a sealed gunny bag which was sold in the same condition to the Food Inspector. The trial Court recorded the statement of Baldev Raj, thereafter impleaded the respondent No.3 as the co-accused and Shri Satish Kumar put in appearance for M/s. Shimla Trading Company and on the basis of the evidence already recorded earlier, charge was framed against him. The trial Court recorded the statement of Baldev Raj, thereafter impleaded the respondent No.3 as the co-accused and Shri Satish Kumar put in appearance for M/s. Shimla Trading Company and on the basis of the evidence already recorded earlier, charge was framed against him. Thereafter on 7-8-2003 Satish Kumar aforesaid moved an application under Section 20-A of the Act, wherein he also pleaded that a sealed bag of the said Dal was sold by him to Baldev Raj in the same manner in which it was purchased from the present petitioners vide S. S. No. 34109 dated 28-4-1999 and a photo copy of the bill was appended with application. His statement was recorded on 16-9-2004 by the trial Court, thereafter the petitioner herein was ordered to be impleaded as the co-accused in the case and this order has been assailed in this petition. 4. I have heard the learned counsel for the parties and have examined the respective contentions. Section 20(A) of the Act reads as under : "20-A. 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). 5. In Ram Kishan Yoginder Paul v. State of Himachal Pradesh; 1992 (2) FAC 133, the co-ordinate Bench of this Court inter alia held that the requirement of Section 20 A of the Act is that the Court must be satisfied on some evidence recorded in the trial that the manufacturer, distributor or dealer of an article of food is also concerned with the offence in which some person is being tried. 6. In fact section 20-A above is in the nature of an exception to the provisions of Section 20 of the Act. 6. In fact section 20-A above is in the nature of an exception to the provisions of Section 20 of the Act. By virtue of Section 20(A), the manufacturer, distributor or dealer of any article of food can be impleaded as an accused by the Court, if it satisfied on the evidence recorded during the trial that manufacturer, distributor or dealer is also concerned with the offence in which some person is being tried. 7. Therefore, for applying this section, there should be pendency of the trial before the trial Court, secondly, there should be evidence adduced before the Magistrate during such trial and thirdly, that the Magistrate should be satisfied on such evidence that the manufacturer, distributor or dealer is concerned with that offence. 8. In the instant case pleas raised by Vendor Baldev Raj and also the respondent No. 3 after 2½ years of the trial is quite contrary to the case of the prosecution. Accordingly to the Food Inspector PW 2 the sample was taken from the wooden Box container and not from the gunny bag and this fact was not assailed in his cross-examination. Same version was made by PW4 Ashok Kumar witness. 9. During the trial of the case this plea was not put to any of the witness more specifically to the Food Inspector. The perusal of the bill Ex. AW1/1-A issued by the petitioner in favour of M/s. Shimla Trading Company shows that it had sold two bags of Dal Massri, one was weighing 98.2 kgm. and another 98.3kgms. whereas in the bill, vide which M/s. Shimla Trading Company has further sold one bag of Dal Massri, weighing 99kgs to M/s. Himachal Janta Store, Totu, on 1.5.99. The Middle figure regarding month i.e. figure "5" apparently appears to be over written over figure "6." 10. Further there is nothing on record to show that the vendor or for that matter the distributor (respondent No.3), at any time from the date of sampling till the case was fixed for the defence evidence did disclose the warranty in terms of Section 14(A) of the Act to the Food Inspector Shri B. L. Justa. 11. It is also not even prima facie established on record that the alleged article of food was kept in the same state as it was sold by the petitioner to M/s. Shimla Trading Co. 11. It is also not even prima facie established on record that the alleged article of food was kept in the same state as it was sold by the petitioner to M/s. Shimla Trading Co. which was further sold to the accused Baldev Raj till its sample was taken by the Food Inspector. 12. There is also inordinate delay in impleading the present petitioner why did it happen has not been explained. At least the name of respondent No.3 was also ascertainable from the vendor when the sample was taken. The prosecution of the petitioner after such a long lapse of time in the circumstances stated above is undesirable as held in H. V. Singh v. State of H. P. 1992 (2) FAC 224. 13. Thus on the above facts, in my opinion, the evidence adduced before the learned Magistrate is juxta opposite to the prosecution story and unreliable which is far from the judicial satisfaction. The petitioner herein stands not connected as per the provisions of Section 20-A of the Act; with the commission of the offence for which Baldev Raj was being tried. 14. Therefore, impleadment of the petitioner, as co-accused in the said proceedings, is wrong and illegal. Accordingly, the petition is allowed and the impugned order impleading the petitioner as co-accused is set aside. An authenticated copy of this order be sent to the concerned Court forthwith. Petition allowed.