IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO. No.68 of 2011 Judgment reserved on: 1.8.2011 Date of decision: 24.8.2011 Hari Om Yog Raj ….Petitioner. Vs. State of H.P. and others ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Nimish Gupta, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S. Rana, Assistant A.G. for respondents No.1 & 2. Mr. M.S. Guleria, Advocate, for respondent No.3. Kuldip Singh, J. This petition has been filed for quashing of complaint dated 25.5.2010, summoning order dated 31.5.2010 passed by learned Addl. Chief Judicial Magistrate, Chamba in case No.98- 1/10/14-III/10. 2. The facts in brief are that respondent No.2 had filed a complaint against respondent No.3 and petitioner alleging therein that on 18.2.2010 respondent No.2 had visited the shop of respondent No.3 and during inspection it was found that he had kept 5 Kg. of Dal Whether the reporters of the local papers may be allowed to see the Judgment? …2… Arhar in a wooden rack for sale. In the presence of witness, respondent No.2 declared his intention to take a sample of Dal Arhar for analysis and served a notice on respondent No.3. 3. The respondent No.3 disclosed during sampling process that he had purchased Dal Arhar from petitioner vide VAT invoice/bill No.1592 dated 5.1.2010. On the basis of statement of respondent No.3, the respondent No.2 served a notice under Section 14-A of the Prevention of Food Adulteration Act, 1954 (for short Act) to petitioner and intimated the petitioner seizure of sample of Dal Arhar. 4. On completion of proceedings and receiving report of the Public Analyst, the respondent No.2 submitted papers to Chief Medical Officer, Chamba for obtaining written consent to launch prosecution against respondent No.3 and petitioner. The Chief Medical Officer, Chamba granted written consent and thereafter respondent No.2 had filed complaint before Addl. Chief Judicial Magistrate, Chamba against respondent No.3 and petitioner for offence punishable under Section 16(1)(a)(i) of the Act. 5. The Addl. Chief Judicial Magistrate on 31.5.2010/11.8.2010 took cognizance of the case and issued process to petitioner. It has been stated that Addl. Chief Judicial Magistrate took cognizance of the case without verifying the documents placed on record and without considering whether prima facie case is made out against petitioner, who has been made accused on the basis of cash memo No.1592. The Addl. Chief Judicial Magistrate has not verified the cash memo No.1592 which was issued in favour of one …3… Sonu Kiryana Store, Rajera on 5.1.2010 and not in favour of respondent No.2. The bill No.1592 has been tampered and the name of petitioner has been changed by overwriting. 6. The petitioner is innocent. There is no evidence against the petitioner to prosecute him with respondent No.3. In these circumstances, summoning order and complaint against petitioner are liable to be quashed. 7. There is no evidence to connect the petitioner with the commission of offence. The material on record indicates that Dal Arhar was delivered in sealed bags whereas the sample of Dal Arhar was taken from wooden box. There is no nexus between Dal Arhar allegedly purchased by respondent No.2 from respondent No..3 and Dal Arhar which was allegedly supplied by petitioner to respondent No.3. The consent for launching the prosecution is wholly mechanical and without application of mind. 8. The allegations in the complaint, even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioner. There is no specific allegation against the petitioner in the complaint. The complaint against the petitioner is without any foundation. The petitioner has ultimately prayed for quashing of the complaint and summoning order dated 31.5.2010/11.8.2010. 9. I have heard Mr. Nimish Gupta, Advocate for the petitioner so also Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana, Assistant A.G. and Mr. M.S. Guleria, Advocate, for the respondents. I have also gone through the record. In the …4… complaint, it has been stated that respondent No.3 had disclosed during the sampling process that he had purchased Dal Arhar from petitioner vide bill No.1592 dated 5.1.2010, a notice under Section 14-A along with copy of notice in Form-VI was also given to petitioner intimating about the seizure of Dal Arhar. The sample of Dal Arhar was found adulterated with Kesari Dal and also contains yellow synthetic food colour “Tartrazine” by the Public Analyst, vide report No.63 dated 1.4.2010. The Chief Medical Officer, Chamba granted written consent under Section 20(1) of the Act to launch prosecution against respondent No.3 and petitioner. The complaint was filed for punishing respondent No.3 and petitioner under Section 16 (1-A) and 16(1)(a)(i) of the Act. 10. The Section 20A of the Act provides that on the basis of evidence adduced during trial, the Court is satisfied that 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 or in section 20 proceed against him as though a prosecution had been instituted against him under section. The Supreme Court in M/s. Bhagwan Das Jagdish Chander v. Delhi Administration and another AIR 1975 SC 1309 has held that in a suitable case, a vendor, a distributor, and a manufacturer could be tried together provided the allegations made before the court show that there are connecting links between their activities so as to constitute the same transaction. The connecting links, in a case could be provided by firstly, the fact that a sale at an anterior stage could be viewed as the …5… cause of the subsequent sale; secondly, the allegation that each of the accused parted with the article of food when it was in an adulterated state; thirdly, by the common object of the manufacturer, the distributor, and the vendor, that the article should reach the consumer to be used as food. It has been held that the third and last mentioned link seems decisive and must tilt the balance in favour of legality of a joint trial of the parties concerned. But, Courts cannot ignore broader requirements of justice. Hon’ble Justice Alagiriswami,J while concurring with the majority judgment has also held that before the manufacturer, the distributor and the vendor could be tried jointly it must be alleged that the manufactured food was adulterated when manufacturer passed it on to the distributor, the distributor passed it on to the vendor and the vendor sold it to the consumer. It is not necessary to prove that the article of food was adulterated at the third stage. 11. In the case on hand there is no allegation in the complaint that the alleged sale made by petitioner in favour of respondent No.3 could be viewed as the cause of the subsequent sale nor there is any allegation that petitioner parted with the article of food when it was in an adulterated state. There is no allegation that the petitioner and respondent No.3 had common object that Dal Arhar allegedly sold by petitioner to respondent No.3 should reach the consumer to be used as food. The invoice No.1592 has been relied by respondent No.2, it is in the name of purchaser Kewal Krishan Karyana Store Rajera. The invoice No.1592 indicates that there is a cutting in the name of purchaser ‘Kewal Krishna’ and ‘Kewal Krishan’ has been written after …6… cutting “Sonu”. In the complaint there are no allegations for joint trial of petitioner with respondent No.3 for commission of alleged offence. The evidence has not yet been recorded. In Thakur Das Babu Ram v. State of Himachal Pradesh 1989 (1) FAC 343, it has been held that power under section 20A of the Act can be exercised during the trial of an offence under the Act. In O.P. Shiv Prakash v. K.L. Kuriapose (1999) 8 SCC 633, it has been held that section 20A of the Act cannot be invoked before the stage of adducing evidence in the trial. Thus seen from any angle, at this stage petitioner cannot be proceeded along with respondent No.3 for commission of alleged offence under the Act. In case, during trial evidence comes on record and the learned Magistrate is satisfied that petitioner is required to be impleaded as an accused under section 20-A of the Act then he shall be at liberty to pass an appropriate order. However, at this stage the summoning order against petitioner for alleged offence under the Act is not sustainable and the same deserves to be quashed. 12. In view of above, the petition is allowed. The summoning order dated 31.5.2010/11.8.2010 against petitioner only is quashed. However, learned Magistrate will be at liberty to invoke section 20A of the Act and pass appropriate order, if during trial from evidence the learned Magistrate is satisfied that petitioner has also committed offence along with respondent No.3 under the Act. The respondents through their counsel are directed to appear before trial Court on 19.9.2011. The record of the lower Court be sent back immediately. August 24, 2011 ( Kuldip Singh ), (sks) Judge. …7…