Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE28H DAY OF MARCH20147TH CHAITHRA, 1936 Crl.MC.No. 1720 of 2014 ------------------------------------- S.T.NO. 121/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM ---------------- PETITIONERS: --------------------- 1. NISHA.K.C., NISHA HOUSE, THIRUVANNUR NADA P.O, KOZHIKODE.
2. MUHAMMED ASHRAF T.K., NISHA HOUSE, THIRUVANNUR NADA P.O, KOZHIKODE. BY ADVS.SRI.N.M.JAMES SRI.J.JAYAKUMAR RESPONDENTS/STATE & DEFACTO COMPLAINANT: -------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE FOOD INSPECTOR, VADAKARA CIRCLE, PUTHUPPANAM P.O, VADAKARA, KOZHIKODE. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON2803-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Msd. Crl.MC.No. 1720 of 2014 --------------------------------- APPENDIX ----------------- PETITIONER(S)' ANNEXURES ------------------------------------------ ANNEXURE A1: COPY OF THE COMPLAINT IN S.T.NO. 121/09 FILED BY THE2D RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM. ANNEXURE A2: COPY OF THE APPLICATION DATED1705.2014 FILED BY THE2D RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM. ANNEXURE A3: COPY OF THE LETTER DATED2210.2013 OF THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE1 KOZHIKODE. ANNEXURE A4: TRUE COPY OF THE PROCEEDING PAPER OF THE COURT BELOW DATED1701.2014. ANNEXURE A5: TRUE COPIES OF THE SUMMONS ISSUED BY THE COURT BELOW TO THE PETITIONERS. RESPONDENT(S)' ANNEXURES: --------------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. K. Ramakrishnan, J.
============================== Crl.M.C.No.1720 of 2014 ============================== Dated this, the 28th day of March, 2014. ORDER
This is an application filed by the petitioners for accused Nos. 5 and 6 in S.T.No.121/09 on the file of the Judicial First Class Magistrate Court, Nadapuram, pursuant to Annexure A2 under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioners are subsequently arrayed as additional accused Nos. 5 and 6 in S.T.No.121/09 on the file of the Judicial First Class Magistrate Court, Nadapuram. The complaint was originally filed by the second respondent against accused Nos.1 to 4 alone alleging offences under Section 16 1(a)(i) read with Section 7(i) and Section 2(i-a)m of the Prevention of Food Adulteration Act and Appendix B-A-28.03 of Prevention of Food Adulteration Rules 1955. The prosecution allegation was that, on 22.10.2008 at about 1.00 p.m the second respondent reached the premises of Rubiyan Super Training Centre, Nadapuram functioning in Room No.VII/1124- A15, 16, 18, 19 and 20 in Nadapuram Grama Panchayat and purchased 1.5 kg of dates and after Crl.M.C.No.1720 of 2014 :
2. : getting the public analyst report, it was found that, it does not confirm to the standard provided for the same and thereby they have committed the above said offence. Trial started and the present petitioners have been subsequently impleaded on the basis of alleged warranty claimed under Section 19(2) of the above said Act. The application is not sufficient to summon the petitioners. No notice under Section 13(2) of the Act was issued even to the original accused persons. So, the entire prosecution will not stand. So, they prayed for quashing the proceedings as against them.
3. Heard the Counsel for the petitioners and the learned Public Prosecutor who is appearing for the respondent. Called for a report from Judicial First Class Magistrate, Nadapuram before whom the case is pending and the learned magistrate sent a report regarding the things transpired up to the impleadment of present petitioners in the above case which reads as follows: " In obedience to the direction in Official Memorandum referred to above, I may respectfully submit as follows: S.T.121/09 is arising out of complaint filed by the Food Inspector, Vatakara Circle against four accused namely 1) Avdul Nazar K.K., 2) Sajid C., 3) Hassan Haji P.P., and 4) Crl.M.C.No.1720 of 2014 :
3. : Rubian Super Trading Centre. The offence alleged against them are u/s.16(1)(a)(i) r/w.7(1) and section 2(i-a)m of the PFA Act and Appendix B- A-28.03 of PFA rules. The allegation is that complainant had purchased dates from the 4th accused which was found to be adulterated. Accused Nos.1 and 2 are the partners and 3rd accused is the Managing Partner of the 4th accused. On appearance of accused, the complainant was exajined. Accused had confronted an invoice to PW1 stating that they purchased the said item from a company named Nadapram Trading Company and that they had sold the same in the same condition. The invoice was marked as Ext.D1.Ext.D1 is an invoice dated 19.09.08 issued by Nadapuram Trading Company to 4th accused for purchasing 2 boxes of wet dates of 10 kgs for Rs.445. Based on the said invoice, 3rd accused on behalf of 4th accused, filed an application as CMP205711 to implead the said Nadapuram Trading Company as additional 5th accused in this case. The said application was allowed and Nadapuram Trading Company and its Managing Partner were impleaded as additional accused Nos.5 and 6 respectively. On appearance of accused No.5, the Nadapuram Trading Company, PW1 was recalled and further examined. 5th accused had introduced another warranty stating that he had purchased the product from one Mithu & company, 13/915, Big Bazar, Calicut- 673 001. The said invoice dated 25.08.2008 was marked as Ext.D2. This document would show that said Mithu & Co. had sold 2 boxes of dry dates and 35 boxes of wetdates for a sum of Rs.10632.89. A5 filed an application to implead the said Mithu & company. The said application is also seen allowed and Mithu and Co. was impleaded as additional 7th accused. Crl.M.C.No.1720 of 2014 :
4. : In spite of issuing repeated summons to the 7th accused in the address furnished by the complainant, the said firm was not served. Finally, the complainant produced a letter issued from the office of Assistant Commissioner, Special Circle 1, Commercial Taxes, Kozhikode addressed to the complainant. As per this document the details of the partners of M/s.Mithu & Co, Big Bazar, Calicut for the period 2008-09 are as follows:
1. D.K.Mithu, Daivathankandy (House), Thiruvannur Nada (P.O)., Kozhikode 2) D.K.Mithendralal, Daivathankandy (House), Thiruvannur Nada (P.O.), Kozhikode. 3) Mohammed Ashraf T.K., Nisha House, Thiruvannur Nada (P.O.), Kozhikode. 4) Nisha K.C., Nisha House, Thiruvannur Nada (P.O.), Kozhikode. By producing the said document, the complainant requested to issue summons to the above persons, who are the partners of 7th accused. On issuance of summons, all the above four persons entered appearance on the last posting date, ie. On 18.03.2014, representing Mithu & Company. D.K.Mithu and D.K.Mithendralal entered appearance through one lawyer and T.K.Mohammed Ashraf and K.C.Nisha entered appearance through another lawyer. Thus, I may submit that accused Nos.5 and 6 were impleaded on an application filed by the 3rd and 4th accused relying on Ext.D1 document. Similarly, 7th accused, Mithu & Co. was impleaded on an application filed by the 5th accused relying on Ext.D2. The above facts are respectfully submitted." 4. The Counsel for the petitioners submitted that the Crl.M.C.No.1720 of 2014 :
5. : impleadment of the present petitioners is against law at the later stage of the trial. Further, no notice under Section 13(2) of the Act has been sent to any of the accused persons. So, they have been denied a valid opportunity to defend the case. So, according to him, the proceedings is bad.
5. On the other hand, the learned Public Prosecutor submitted that the original accused have no case that they have not received any notice under Section 13(2) of the Act and they have not challenged the prosecution before any authority so far and they are facing trial. Further, the present petitioners have been impleaded subsequently on the basis of the evidence available invoking Section 20A of the Prevention of Food Adulteration Act. So, there is nothing wrong in impleading the petitioners.
6. Admittedly, on going through the report of the learned magistrate, it is seen that originally the petitioners were not impleaded in the proceedings and the complaint was filed only against original accused Nos. 1 to 4. Thereafter, during trial, the accused Nos.1 to 4 produced Ext.D1 a bill which shows that they have purchased the articles from the 5th accused and on that basis 5th accused was impleaded. When Crl.M.C.No.1720 of 2014 :
6. :
5. h accused appeared, the Food Inspector was again recalled and examined and Ext.D2 bill said to have been obtained by 5th accused from one M/s Mithu and Company, 13/915, Big Bazar, Kozhikode and the present petitioners represents that Company. So, it is on that basis, Annexure 2 petition was filed for impleading them as party in the proceedings and accordingly, the company was impleaded and since notice could not be served on the company, after getting the particulars regarding the persons who are responsible for conduct of the business of that company from the Sales Tax Department, the present petitioners were impleaded and notice have been issued to them.
7. Section 20A of Prevention of Food Adulteration Act reads 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.]" Crl.M.C.No.1720 of 2014 :
7. :
8. So, Section 20A of the Act gives the power to the court to implead the manufacturers or dealers at a later stage of the proceedings on the basis of evidence. It is on that basis when evidence came from the side of the defence by producing a bill alleged to have been issued by M/s Mithu and Company to the 5th accused regarding the disputed articles, they have been impleaded now. So, under the circumstances, it cannot be said that the court below had committed any illegality in impleading the present petitioners invoking the power under Section 20A of the Prevention of Food Adulteration Act 9. Since they have been impleaded during the course of the trial, there is no possibility of issuing any notice under Section 13(2) of the Act arises. The question whether the original accused persons were issued with Section 13(2) notice or not is a matter to be considered by the court on the basis of evidence available before that court. The petitioners can also raise all the contentions available to them before that court to deny that liability or even the genuineness of the bill that has been produced before that court. So, under the circumstances, the action of magistrate impleading the petitioners invoking Crl.M.C.No.1720 of 2014 :
8. : the power under Section 20A of the Act on the basis of the evidence produced before that court at that stage invoking the power under Section 20A of the Act cannot be said to be illegal and on that basis the relief claimed by the petitioners to quash the proceedings cannot be granted. But, it is made clear that dismissal of this application will not affect the right of the petitioners to raise all the contentions available to them before the trial court to get themselves exonerated from the liability. With the above observation and direction, the petition is disposed of. Sd/- K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge