Judgment:
Surinder Singh, J.
1. The present petition has been directed against the order dated 6th November, 2006 passed by the learned Chief Judicial Magistrate in Complaint No. 1/3 of 05/04, whereby the petitioner company has been summoned as an accused under Section 20-A of the Prevention of Food Adulteration Act, in short 'The Act'.
2. Record was sent for. The matter is short and is already covered by the various judgments of this Court. Thus can be disposed of at this stage.
Heard.
3. The undisputed facts are that on 12th August, 2004, the Food Inspector (respondent No. 2) visited the shop of accused Sanjay Kumar (respondent No. 3) and purchased 1500 grams of 'Atta' from a sealed bag of 'Ashirwad Atta' brand, for its analysis by taking three samples under the Act. One of the sample was sent to Public Analyst Kandaghat for its examination. As per the report, on its examination the Public Analyst found alcoholic acidity of 0.21 % as against the maximum prescribed standard of 0.18 %, thus after seeking the consent from the Local (Health Authority) the prosecution was launched against respondent Sanjay Kumar only. Said Shri Sanjay Kumar, after about one year from the initiation of proceedings against him moved an application under Section 20-A of the Act on the basis of which M/s. Sadhu Lal Madan Lal through its proprietor Bimal Prakash (respondent No. 4) was impleaded as an-accused. Thereafter, the respondent No. 4 aforesaid also moved an application on 28.3.2006, under Section 20-A of the Act, on the basis of proforma invoice dated 14.7.2004 to implead the petitioner herein.
4. On the perusal of record, it appears that the Food Inspector had no objection but the learned Chief Judicial Magistrate passed the impugned order without holding an enquiry.
5. For the sake of convenience the impugned order can be usefully reproduced here under:
6.11.2006:
Present: None for the Food Inspector.
Accused with Counsel Shri M.K. Jain, Advocate.
An application for exemption of complainant Food Inspector, received which is allowed for the reasons stated in the application.
2. I have already heard the Food Inspector and the Counsel for the accused and have perused the application under Section 20-A of the P.F.A. Act, for impleading the manufacturer M/s. I.T.C. Ltd., WSP, Parwanoo, Plot No. 25-Sector 1, Industrial Area, Parwanoo and the invoice attached with the application.
3. From the perusal of the material on the file, I am satisfied that M/s. I.T.C. Limited, WSP, Plot No. 25, Sector I, Industrial Area, Parwanoo, being manufacturer is also concerned with the offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the P.F.A. Act and he is thus liable to be impleaded as co-accused in this complaint. Accordingly, accused M/s. I.T.C. Limited, WSP, Sector-I, Plot No. 25, Industrial Area, Parwanoo through its proprietor is hereby impleaded as co-accused under Section 16 (1)(a)(i) read with Section 7(i) of the said Act being manufacturer and, accordingly, the accused be summoned for facing the trial of aforesaid offence before this Court for 8.12.2006.
Sd/-
(R.K. Sharma)
Chief Judicial Magistrate,
Sirmaur Distt. at Nahan, H.P.
Announced
6. It is well settled that in order to implead manufacturer, distributor or dealer, such evidence should be adduced as to connect them with the commission of such offence for which a person is being tried. If such evidence is bill or cash memo or warranty, it should be brought on record in accordance with law, which can only be done by the applicant by giving his statement on oath and also by producing some other evidence.
7. An identical question came up for consideration before the Single Bench of this Court in Ram Krishan Yoginder Pal v. State of H.P. 1992 FAC 133 which was also relied upon by the Single Judge of this Court in case Krishan Kumar Jain v. State of H.P. and Anr. Cr. Revision No. 44/93, decided on 20.5.1996.
8. In Ram Krishan Yoginder Paul's case supra, it was held that Section 20-A is in the nature of an exception to the provision of Section 20. In this Section, a manufacturer, distributor or dealer of an article of food can be impleaded as accused by a Court if it is satisfied on some evidence recorded in the trial that the manufacturer, distributor or dealer is also concerned with the offence for which some person is being tried. As such, for invoking jurisdiction under Section 20-A of the Act, there should be trial of an offence under the Act pending before the Magistrate against a person other than the manufacturer, distributor or dealer of an article of food; there should be evidence adduced before the Magistrate during such trial and the Magistrate should be satisfied on such evidence that the manufactures, distributor or dealer is concerned with that offence. In order to implead manufacturer, distributor or dealer, such evidence should be adduced as to connect them with the commission of such offence for which a person is being tried. If such evidence is bill or cash memo or warranty, it should be brought on record in accordance with law. It was also a case where the Food Inspector had conceded the application of respondent-accused No. 2 but it was held that the minimum requirement was that the respondent-accused No. 2 should have come forward and deposed about all this on oath.
9. In the instant case significantly, when the sample was taken by the Food Inspector from respondent Sanjay Kumar, in Panchnama Ex.P3 against column No. 9, he disclosed the name of the manufacturers 'Biswas Food Private Limited, 515, Krishan Gali, Katra, Neel Chandani Chowk, Delhi-6 having Batch No. AA Packed on 6.7.2004. The brand of the 'Atta' was 'Ashirwad', kept in his stall for sale. There was no reference to the petitioner as manufacturer. Prima-facie the stand taken by respondent No. 4 is contradictory to the record.
10. It is a fact that the learned trial Court did not initiate the enquiry nor examined the applicant on oath to connect the invoice with the petitioner. Even the application, moved by respondent No, 4 to implead the petitioner herein was also not supported by the applicant. The proforma invoice is a photocopy of the computer print-out. There is nothing on record to show prima-facie that the article of food of which the sample was taken was purchased by respondent No. 4 from the petitioner concern. It is not known by which the learned Chief Judicial Magistrate felt satisfied that the petitioner was connected/involved in the commission of the said offence.
11. Therefore, I have no hesitation to hold that the impugned order passed by the learned trial Court summoning the petitioner as co-accused under Section 20-A of the Act in the above circumstance is indefensible thus bad and cannot be sustained.
12. As such the petition is allowed and the impugned order is set-aside with the direction that the learned Chief Judicial Magistrate shall proceed to dispose of the application filed by respondent No. 3 herein under Section 20-A of the Act, afresh in accordance with law, if satisfied on the material brought on record that the petitioner herein is also connected with the commission of offence as manufacturer, implead him as a co-accused along with respondent No. 4 M/s. Sadhu Lal Madan Lal. The petition accordingly disposed of.
Record of the learned trial Court be returned.