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2015 DIGILAW 1268 (RAJ)

Vimal Bhatia v. State of Rajasthan

2015-07-09

VIJAY BISHNOI

body2015
JUDGMENT 1. - This criminal misc. petition under section 482 CrPC has been filed by the petitioner being aggrieved with the order dated 12.02.2015 passed by Sessions Judge, Jaisalmer (for short 'the revisional court' hereinafter) in Cr. Revision Petition No.11/2012, whereby the revision petition filed by the petitioner against the order dated 01.12.2011 passed by Chief Judicial Magistrate, Jaisalmer (for short 'the trial court' hereinafter) in Cr. Case No.10/2010 has been dismissed. 2. The trial court vide order dated 01.12.2011 has ordered for framing charge against the petitioner for the offence punishable under section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short 'the Act of 1954' hereinafter). 3. Brief facts of the case are that Shri Revant Singh, Food Inspector, Jaisalmer had filed a complaint in the trial court while alleging that on 16.06.2009, he had inspected a shop named and styled as M/s Grihasti Departmental Store situated at Gandhi Colony, Jaisalmer and purchased three bottles of mustard oil for the purpose of sending sample for testing. Proprietor of M/s Grihasti Departmental Store has produced a purchase bill of mustard oil from dealer M/s Shree Jee Agencies, Bhatia Market, Jaisalmer. It is alleged in the complaint that the sample of mustard oil was sent to the laboratory and as per the report of the laboratory, the same was found adulterated. It is specifically mentioned in the complaint that despite repeated reminders issued to the dealer - firm M/s Shree Jee Agencies, it has failed to produce the bill or voucher of the manufacturer firm to prove that the mustard oil was purchased by it from the manufacturer firm. In the complaint, the Food Inspector had made the proprietor of M/s Grihasti Departmental Store and owner of dealership firm M/s Shree Jee Agencies as accused. 4. Before the trial court, in the pre-charge evidence, the statements of Food Inspector were recorded on 16.02.2011 and thereafter the trial court heard the counsel for the accused-persons for the purpose of framing of charges. After hearing counsel for the accused-persons and the Assistant Public Prosecutor, the trial court has ordered for framing of charge against the accused-persons vide order dated 01.12.2011. 5. Being aggrieved with the order dated 01.12.2011, the petitioner (owner of dealership firm) preferred a revision petition before the revisional court, however, the same has been dismissed vide order dated 12.02.2015. Hence, this criminal misc. petition. 6. 5. Being aggrieved with the order dated 01.12.2011, the petitioner (owner of dealership firm) preferred a revision petition before the revisional court, however, the same has been dismissed vide order dated 12.02.2015. Hence, this criminal misc. petition. 6. Learned counsel for the petitioner has submitted that during pre-charge evidence of Food Inspector, Shri Revant Singh, the petitioner, who is the owner of Shree Jee Agencies had produced an invoice of purchase of mustard oil from Shree Hari Industries Bharatpur, who was the manufacture of mustard oil. It is contended that in view of the copy of Invoice, the trial court is obliged to implead the manufacturer Shree Hari Industries, Bharatpur as an accused as per section 20-A of the Act of 1954 but the trial court has not considered the same and illegally ordered for framing charge against the petitioner and other co-accused person only. It is also contended that from the invoice produced by the petitioner, it is clear that he had purchased the oil from Shree Hari Industries, Bharatpur and, therefore, he was entitled to be discharged but the trial court has not considered the same and illegally passed the impugned order. It is also argued that the revisional court has not considered the said fact situation and illegally dismissed the revision petition filed by the petitioner. 7. In support of the above arguments, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in M/s Omprakash Shivprakash v. K.I. Kuriakose and Ors., 2000 CRI.L.J. 26(1) ; this Court in Amolak Chand v. State of Rajasthan, 1986(1) WLN 461 and Kerala High Court in M/s Radhakrishna Traders, Kottur Mandal, Guntoor v. C.V.Saseedharan & Ors., 2013 CRI.L.J. 937. 8. Heard learned counsel for the petitioner and perused the impugned orders. 9. The trial court in its order dated 01.12.2011 has clearly observed that despite repeated reminders from the Food Inspector, the dealer firm has failed to produce the bill or warranty letter to demonstrate that it had purchased the mustard oil from the manufacturer company. In the absence of any such proof, it cannot be held that only the manufacturer is liable for commission of offence punishable under the provisions of Act of 1954 and the petitioner and other co-accused person are liable to be discharged. 10. In the absence of any such proof, it cannot be held that only the manufacturer is liable for commission of offence punishable under the provisions of Act of 1954 and the petitioner and other co-accused person are liable to be discharged. 10. The revisional court has also taken into consideration this aspect of the matter and held that when the petitioner has failed to furnish any proof before the Food Inspector to prove that the dealer firm had purchased the mustard oil from the manufacturer through a bill or invoice, the claim of the petitioner for discharging him and impleading the manufacturer as accused is not tenable. After going through the impugned orders passed by both the courts below, this Court does not find any illegality in the same. 11. There is another aspect of the matter which has not been dealt with by either of the courts below. It is noticed that charges have been framed against the petitioner on 11.04.2014 i.e. after passing of the order dated 01.12.2011 by the trial court. Before framing of charge, it cannot be held that the trial has been commenced against the petitioner. When the trial has not been commenced against the petitioner, there was no occasion for the petitioner to claim before the trial court to implead the manufacturer as co-accused while taking aid of section 20-A of the Act of 1954. 12. In M/s Omprakash Shivprakash v. K.I.Kuriakose and Ors. (supra), Hon'ble Supreme Court while dealing with the similar situation has held as under: "6. It can be pointed out now that the plea of any of the accused was not recorded nor even asked by the Magistrate before he ordered impleadment of the appellant. Power of the Court to implead the manufacturer, distributor or dealer, in cases involving offences under the Act, is envisaged in Section 20-A of the Act. It can be pointed out now that the plea of any of the accused was not recorded nor even asked by the Magistrate before he ordered impleadment of the appellant. Power of the Court to implead the manufacturer, distributor or dealer, in cases involving offences under the Act, is envisaged in Section 20-A of the Act. It reads thus: "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." 7. The above provision overrides the ban contained in Section 20 of the Act that no prosecution shall be instituted for the offences under the Act except by or with the consent of the authorities mentioned in the Section. The essential conditions for invoking the power under Section 20-A are that (1) the trial should have begun already; (2) the trial must be of any offence under the Act allegedly committed by a person other than the manufacturer or distributor or dealer of the food Article; (3) the court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence; (4) such satisfaction must have been formed "on the evidence adduced before the court." 8. Section 319 of the Code empowers the Court to proceed against any person who is not being made an accused already, if it appears from the evidence collected in the inquiry or trial of an offence that such person has committed an offence for which he could be tried together with the already arraigned accused. Section 319 of the Code empowers the Court to proceed against any person who is not being made an accused already, if it appears from the evidence collected in the inquiry or trial of an offence that such person has committed an offence for which he could be tried together with the already arraigned accused. One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the Court can proceed against that other person, while in the latter the satisfaction of the Court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends." ...................... ..................... .................... The above scrutiny of the relevant provisions reveals that the trial of 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, if the Magistrate opts to hold summary trial. Hence, evidence in a trial under the Act can be adduced only after recording the plea of the accused as envisaged in the said section. Thus, it is clear that a Magistrate can implead any person under Section 20-A of the Act only after reaching the stage envisaged in Section 254(1) of the Code. 13. As a matter of legal proposition this Court has clearly stated in M/s Bhagwan Das Jagdish Chander, ( AIR 1975 SC 1309 : 1975 Cri LJ 1091) (supra) that "it is clear that the contemplated action can only be taken during the course of the trial". (The said decision has been referred to by the learned Single Judge in the impugned judgment.) 14. The other decision cited by the High Court in the judgment is Delhi Cloth and General Mills Co. Ltd., (1995 AIR SCW 4063 : AIR 1996 SC 283 : 1996 Cri LJ 424) (supra). In that case a three- Judge Bench considered yet another facet of Section 20-A of the Act. The other decision cited by the High Court in the judgment is Delhi Cloth and General Mills Co. Ltd., (1995 AIR SCW 4063 : AIR 1996 SC 283 : 1996 Cri LJ 424) (supra). In that case a three- Judge Bench considered yet another facet of Section 20-A of the Act. However, there is no indication in the said decision that power under the Section could be used at any stage before trial commences. 15. In Municipal Corporation of Delhi v. R.Sahai, AIR 1979 SC 1544 : (1979) 3 SCR 625 : (1979 Cri LJ 969) a two - Judge Bench of this Court has stated that the power under Section 20-A can be exercised only during trial. The relevant facts in that case were that a Magistrate acquitted an accused and thereafter he issued notice to the manufacturer purportedly under Section 20-A of the Act. When the said manufacturer challenged the action of the Magistrate this Court laid emphasis to the words "during trial of any offence", and observed thus (Para 2 of AIR, Cri LJ): "The opening lines of Section 20-A clearly contemplate a contingency where the discretionary jurisdiction under this Act can be exercised only during the trial of any offence, that is to say, the stage at which the Magistrate can exercise the discretion under this section must be before the trail has concluded and ended in acquittal or conviction." 16. 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. In the present case, the Magistrate has chosen to exercise the power prematurely and hence the action is without jurisdiction. We, therefore, set aside the impugned judgment of the High Court and that of the Magistrate. However, we make it clear that this judgment will not preclude the Magistrate from considering the question afresh at the appropriate stage." In view of the law laid down by the Hon'ble Supreme Court in M/s Omprakash Shivprakash v. K.I.Kuriakose and Ors. (supra), this Court is of the opinion that the prayer of the petitioner to implead the manufacturer as co-accused while invoking the provisions of section 20A of the Act of 1954 is premature.Hence, this Court does not find any force in this petition and the same is hereby dismissed.Stay petition also stands dismissed.Petition dismissed. (supra), this Court is of the opinion that the prayer of the petitioner to implead the manufacturer as co-accused while invoking the provisions of section 20A of the Act of 1954 is premature.Hence, this Court does not find any force in this petition and the same is hereby dismissed.Stay petition also stands dismissed.Petition dismissed. *******