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2015 DIGILAW 342 (GAU)

Bipul Sarma v. State of Assam

2015-03-20

M.R.PATHAK

body2015
JUDGMENT : M.R. Pathak, J. 1. Heard Mr. A.M. Bora, learned counsel appearing for the Petitioner and Mr. B.S. Sinha, Addl. Public Prosecutor, Assam for the State. The brief fact of the case is that on 29.06.2011 one Smti. N.N. Begum, Food Safety Officer of Darrang District along with an office staff visited the business premises of M/s. Balaji Chat House, LNB Road, Mangaldai, District-Darrang, owned by its Proprietor Sri Sambhu Mahato, for inspection of the food articles kept therein for human consumption and collected a sample of vegetable sauce for analysis that was kept in the said shop complying all legal formalities under the provisions of Prevention of Food Adulteration Act, 1954 (P.F.A. Act, in short) and the 1955 Rules framed under the said 1954 P.F.A. Act. 2. On 30.06.2011 the said Food Safety Officer submitted a part of the sample of vegetable sauce that was collected on 29.06.2011 from 'Balaji Chat House' to the Public Analyst, Government of Assam, Bamunimaidam, Guwahati and after necessary examination, the Public Analyst, Government of Assam by his report No. PF/M/7/11 dated 30.07.2011 gave his opinion holding that the said sample of vegetable sauce is an adulterated one. 3. On receipt of necessary written consent/prosecution sanction from the Joint Director of Health Services Darrang, Mangaldai, on 31.10.2011 the said Food Safety Officer, Darrang District lodged a complaint with the offence report before the Chief Judicial Magistrate, Darrang, Mangaldai to initiate prosecution and to take cognizance against the offender. 4. The learned Trial Magistrate accordingly registered the aforesaid complaint of the Food Safety Officer, Darrang District dated 31.10.2011 as C.R. Case No. 2356/2011, took cognizance of the same and issued summon to the accused Sri Sambhu Mahato, Proprietor of said 'Balaji Chat House'. Further, on appearance of said Sri Mahato, the learned Trial Magistrate granted him bail and preceded the case as a Warrant Procedure Case and issued summons to the witnesses for evidence before charge. 5. Further, on appearance of said Sri Mahato, the learned Trial Magistrate granted him bail and preceded the case as a Warrant Procedure Case and issued summons to the witnesses for evidence before charge. 5. However, the accused Sri Sambhu Mahato on 17.11.2012 filed a petition before the learned Trial Magistrate stating that the sample of vegetable sauce, named as 'Craze', which was collected by the complainant, i.e. the Food Safety Officer, Darrang District from his shop on 29.06.2011, was manufactured by one 'Dawn Factory' as reflected in the cash memo and when the complainant collected the sample of the said sauce, the bottle was in the same condition/state (sealed condition) in which he purchased it and as such, the accused Sri Sambhu Mahato prayed before the Trial Magistrate to implead the 'Dawn Factory' in the case and to issue notice to it. 6. The Trial Magistrate considering the case record/Form-VI, allowed the aforesaid petition of the accused Sri Sambhu Mahato dated 17.11.2012 and exercising his power under Section 319 of the of the Code of Criminal Procedure, 1973 (Cr.P.C. in short) vide order dated 17.11.2012 impleaded the petitioner, namely, Sri Bipul Sarma as an accused in the said C.R. Case No. 2356/2011 and issued summon to him. 7. Being aggrieved, the petitioner has filed this application under Section 482, read with Section 401 of the Cr.P.C. for quashing the impugned order dated 17.11.2012 passed by the learned Chief Judicial Magistrate, Darrang, Mangaldai in C.R. Case No. 2356/2011. 8. Mr. Bora, learned counsel for the petitioner asserted that the Trial Magistrate, while passing the impugned order dated 17.11.2012 in exercise of power under Section 319 Cr.P.C. erred in law, as the conditions precedent for exercising the powers under Section 319 Cr.P.C. was not complied with. Mr. Bora submitted that powers under Section 319 Cr.P.C. can he exercised in the course of an enquiry or a trial of an offence and the case in hand being a case arising out of a Complaint, the question of exercising power under Section 319 Cr.P.C. shall arise only at the stage of trial after recording evidence and in the present case, as evidence in the case is yet to be recorded, the impugned order dated 17.11.2012 issued by the learned Trial Magistrate should be set aside. 9. Section 319 of the Cr.P.C. reads as follows: "319. 9. Section 319 of the Cr.P.C. reads as follows: "319. Power to proceed against other persons appearing to be guilty of offence. - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 10. Section 16A of the said P.F.A. Act, 1954 as amended, provides for trial all offences under Section 16(1) of the said 1954Actina summary way by a Judicial Magistrate of the first class specially empowered in that behalf. Said Section 16 of the P.F.A. Act 1954 reads as follows: "16A. Section 16A of the said P.F.A. Act, 1954 as amended, provides for trial all offences under Section 16(1) of the said 1954Actina summary way by a Judicial Magistrate of the first class specially empowered in that behalf. Said Section 16 of the P.F.A. Act 1954 reads as follows: "16A. Power of court to try cases summarily.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be fried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a. summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." 11. Section 20A of the P.F.A. Act, 1954 as amended, empowers the Court to implead the manufacturer, distributor or dealer of any article of food and it reads as follows: "20A. Power of court to implead manufacturer, etc. Section 20A of the P.F.A. Act, 1954 as amended, empowers the Court to implead the manufacturer, distributor or dealer of any article of food and it reads as follows: "20A. 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." 12. Trial, with regard to Court of law, generally means - a formal examination of evidence in a court of law by a judge/jury/tribunal, to decide if the accused of a crime is guilty or not. Similarly, 'evidence' with regard to Court of law, generally we mean - the information that is used in a court of law to try to prove the incident/occurrence adjudicated by the Court. 13. Blake's Law Dictionary defines 'Trial' as a formal judicial examination of evidence and determination of legal claims in an adversary proceeding. Blake's Law Dictionary also defines 'evidence' as something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact. Evidence broadly defines the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain. Evidence is the demonstration of a fact; it signifies that which demonstrate makes clear or ascertain the truth of very fact or point in issue either on the one side or on the other. In legal acceptation, the term 'Evidence' includes all the means by which any alleged method of fact, the truth of which is submitted to investigation is established or disproved. Evidence has also been defined to mean any species of prove legally presented at the trial of an issue by the Act or the parties and through the medium of witnesses, records, documents, concrete objects and the like. Evidence has also been defined to mean any species of prove legally presented at the trial of an issue by the Act or the parties and through the medium of witnesses, records, documents, concrete objects and the like. Judicial evidence means evidence produced in court consisting of all facts brought to the attention of or admitted into evidence before the Tribunal. Legal evidence means all admissible evidence both oral and documentary of such a character i.e. reasonably and substantially proves the point rather than merely raising suspicion or conjuncture. 14. By the impugned order dated 17.11.2012 the learned Trial Magistrate, as he is empowered under Section 20A of the said P.F.A. Act, 1954; impleaded the petitioner as an accused of the offence involved in the case under Section 16(1) of the said 1954 Act before commencement of the trial of the said case in a summary way. 15. Chapter XXI of the Cr.P.C. (containing Sections 260 to 265) deals with Summary Trials and Section 262 Cr.P.C. specifies that trial of summons cases shall be followed for summary trials subject to some variations. 16. Chapter XX of the Cr.P.C. (containing Sections 251 to 259) provides for Trial of Summons-Cases by Magistrates. The Summary Procedure for Trial of Summons Cases as bestowed in the said Section under Chapter XX of the Cr.P.C. provides that - as soon as the accused appears, the Magistrate must satisfy himself, if the case is upon police report, that necessary copies of police report and other documents as referred to in Section 207 have been furnished to the accused. The Magistrate then is required to state to the accused the particulars of the offence of which he is an accused and ask him whether he pleads guilty or not and no formal charge is necessary to be framed. If the accused pleads guilty, the Magistrate may convict him at once thereupon. In respect of certain pity offences, the accused without attending before the Magistrate may plead guilty and may be so convicted. If the accused pleads guilty, the Magistrate may convict him at once thereupon. In respect of certain pity offences, the accused without attending before the Magistrate may plead guilty and may be so convicted. If the accused person is not convicted on a plea of guilty and denies the truth of the complaint made against him, the Magistrate shall, proceed to hear the prosecution & its witnesses in support of the prosecution and also the accused and his witnesses as required under Section 254(1) Cr.P.C. After hearing the prosecution about its case, recording/taking evidence of all witnesses that the prosecution produces in its support without summons and as also for whom the Magistrate may have issued summons on the prosecution applying for the same in sufficient time before the hearing. In such summary trials, examination includes cross-examination and re-examination of the substance of evidence of its witnesses. After the examination of prosecution witnesses is over and after some additional evidence, if the Magistrate himself thinks it necessary to call for, the Magistrate shall hear the arguments and shall pass the judgment recording the substance of the evidence containing a brief statement of the reasons for the finding as provided by Section 264 Cr.P.C. 17. It is seen from the Objects of Section 20A of the P.F.A. Act that - in order to plug the loopholes in the then existing provisions of the P.F.A. Act, discovered in the light of experience of its actual working, the said Section 20A of the P.F.A. Act was incorporated after due deliberation by the amending Acts (Act 49 of 1964). It is the defence of hide and sick game; resorted to by the offender falling within the category of manufacturer, distributors, dealers and vendors among themselves, to evade the punishment, accusing each other to suit the convenience of the occasion, which prompted the Legislature to come forward with the provisions contained in Section 20A of the Act. The Object sought to be achieved by the newly introduced section can be realized only if the warrantor and the vendor are brought together to take their trial as co-accused in one and the same proceeding and further to safe guard the said Section 20A and to achieve the intention of the Legislature, it was again amended by the Act 34 of 1976. 18. 18. In the cases of V.N. Kamdar v. Municipal Corporation, Delhi and in Bhagwan Das Jagdish Chander v. Delhi Administration and also from the report of the Joint Committee, the Hon'ble Supreme Court observed that - evidence of multiplicity of proceedings, speedy trial and determination of the liability, if any, of the manufacturer and/or distributors of the article of food, along with that of the vendor in respect of the adulterated food articles are the basic object with which Section 20A was brought on the statute book. 19. A perusal of Section 20A of the P.F.A. Act, 1954 makes it clear that during the course of trial the Magistrate has to be satisfied on the evidence adduced before him, the dealer or manufacturer were also concerned/connected/liable with that offence, and only then they could be summoned as accused to stand trial along with original accused-vendor from whom the sample was taken. 20. From the reading of Section 20A of the P.F.A. Act, 1954, the precondition for exercising the power under said Section appears as follows:- (i) the trial for an offence under the Act should be pending against a person other than the manufacturer/distributor/dealer of any article of food; (ii) there must be evidence before the court that such manufacturer/distributor/dealer was concerned with the offence with which the person concerned was charged and the Court which convicts should be satisfied by evidence that such manufacturer/distributor/dealer is concerned with the offence. 21. For Section 20A of the P.F.A. Act, 1954 to be pressed into service, what is essential to that there is some evidence before the Court and such impleadment of an accused can be done only during the trial of any offence. But such section can be pressed only during the trial under the said 1954 Act and not thereafter that is after closing of the trial. Such impleadment of a manufacturer /distributor/dealer is permissible in a proceeding against them under the Act any time during the trial of any offence and not after the conclusion of a trial or at the time when the trial concludes. 22. Summary Trial is a speedy trial by dispensing with unnecessary formalities of delay and in such trial, as provided under Section 262 Cr.P.C. the same procedure as that of Summons Case is to be observed. 22. Summary Trial is a speedy trial by dispensing with unnecessary formalities of delay and in such trial, as provided under Section 262 Cr.P.C. the same procedure as that of Summons Case is to be observed. The procedure for regular trial is not eliminated in a summary trial and like regular trial, the right of cross examination also exists in such summary trial. It is clear from above that the Magistrates, during the trial of the Summons Case, examines the witness. However, in a proceeding under summons case, the trial is to be shortened or simplified by having recourse to certain provisions in the matter of recording evidence, preparation of records and passing of judgment, where with regard to the offence under the 1954 Act provides for limited sentence of imprisonment up to 3 months. But at the same time such proceedings of summary trial has to be conducted with the same care as in regular trial or perhaps with more care, so that the accused may not entertain any apprehension of failure of justice on account of the summary procedure. 23. The Hon'ble Apex Court of India, in the case of M/s. Omprakash Shivprakash v. K.I. Kuriakose & Ors. reported in (1999) 8 SCC 633 has held that - "The trial of the offences under the Prevention of Food Adulteration Act, 1954 begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Cr.P.C. 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." "Thus the position is clear that power under Section 20-A (P.F.A. Act) cannot be invoked before the stage of adducing evidence in the trial, nor can it be invoked after the conclusion of the trial." 24. It is seen that in the present case learned Trial Magistrate proceeded with the case as a Warrant Procedure Case and issued summons to the witnesses for evidence before charge and at that stage of the proceeding on the basis of an application dated on 17.11.2012 of the accused Sri Sambhu Mahato, Proprietor of 'Balaji Chat House' to implead the manufacture of the seized vegetable sauce, namely, 'Dawn Factory' in the case and to issue notice to it, the Trial Magistrate, in exercise of his power under Section 319 Cr.P.C. impleaded the petitioner herein, as an accused in the said C.R. Case No. 2356/2011 and issued summon to him. 25. Apparently, in the said C.R. Case No. 2356/2011, the evidence 'during the trial' did not commence and evidence are yet to be adduced. The minimum requirement of law, as settled, is that some prima facie evidence should be adduced before the Court during the trial so that the commission of offence by the manufacturer/distributor/dealer is proved and only thereafter Section20A of the P.F.A. Act, 1954 will have its application. Section 20A of the P.F.A. Act 1954 can be pressed into service/can be proceeded against the distributor/dealer/manufacture of food articles for their impleadment as accused in a case under the said 1954 Act, only when, there is some evidence before the Court and such impleadment can be done only during the trial of any offence under the said 1954 Act. With regard to the case in hand, it was only at the stage of summons to the witnesses for evidence before charge, when the stage of trial did not reach in the case during its initial stage, leaned Trial magistrate by the impugned order dated 17.11.2012 impleaded the petitioner as an accused in the case under Section 319 Cr.P.C. and issued summon to him. As such, before getting satisfaction under Section 20A of the said 1954 Act and without being in the stage of the trial of the offence as provided by the P.F.A. Act, 1954 and as settled by the Hon'ble Supreme Court of India as stated above, learned Trial Magistrate could not have impleaded the manufacturer, i.e. the petitioner herein as an accused in the said C.R. Case No. 2356 of 2011 merely upon the request of the accused-vendor and issue summon to him. 26. 26. In the present case, learned Trial Magistrate exercised the power under 319 Cr.P.C. hastily & prematurely and his said action being without jurisdiction, the impugned order dated 17.11.2012 issued by learned Trial Magistrate i.e. learned Chief Judicial Magistrate, Darrang, Mangaldai in C.R. Case No. 2356 of 2011 is hereby set aside and quashed. However, it is made clear that the Trial Magistrate i.e. learned Chief Judicial Magistrate, Darrang, Mangaldai is at liberty to consider the question of impleadment of the petitioner herein as an accused in the said C.R. Case No. 2356 of 2011 afresh at the appropriate stage of the said proceeding. With the aforesaid observation, this petition is allowed. No order as to cost. Petition Allowed.