IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Crl.MC.No. 3415 of 2005(B) ------------------------- AGAINST THE ORDER DATED 23/08/2005 IN C.M.P NO.2352 OF 2005 IN S.T.NO.352/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... PETITIONER/ACCUSED: ------------------- P.S.JOSEPH, PADANILAM MEDICAL STORE, ERUMELY. BY ADV. SRI.T.A.SHAJI SRI.M.A.ASIF SMT.T.V.NEEMA SMT.RAGAM.S.MOHAN RESPONDENTS/COMPLAINANT & STATE: -------------------------------- 1. FOOD INSPECTOR, KANJIRAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. THOMAS JOHN AMBOOKAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3415/2005 ORDER ON Crl. M.A. NO.12613 OF 2005 IN Crl. M.C.NO.3415 OF 2005 DISMISSED SD/- 7/08/2008 V.K. MOHANAN, JUDGE /TRUE COPY/ P.A. TO JUDGE scm V.K. MOHANAN, J. ------------------------------ Crl. M.C.No. 3415 of 2005 ------------------------------ Dated this the 7th day of August, 2008 O R D E R The first accused in S.T.No. 352/2004 on the file of the Judicial First Class Magistrate Court -II, Kanjirappallay is the petitioner herein, who challenges Annexure B order of the court below, by which Annexure A petition filed by him for impleading the manufacturer of the product in question, as an additional accused, was dismissed. 2. The petitioner is running a medical store under the name and style Padanilam Medical Store, Erumely. Now he is being prosecuted along with other accused for the offence under Section 16 (1)(a)(i) read with Section 21(a),(n),(m),7(i) and Rule 5 Appendix B.A.07.07, Rule 23 and 29 of the Prevention of Food Adulteration Act, 1955. The allegation is that samples of Glucose-D, kept in 100 grams packets, taken from the medical store and on chemical analysis, it was found to be not conforming to the standard prescribed for Dextrose falling under item No.A.07.07 of Appendix B of the P.F.A Rules and therefore the said item was an adulterated one. Crl. M.C.No. 3415/ 2005 Page numbers 3. On getting process from the court below, the petitioner entered appearance and he had preferred Annexure A petition. The defence taken by the petitioner is that he had purchased article from Vasantham Products, 5/87, Kalarampatti Main Road, Salem -15, as per invoice No. 019/2003-2004 dated 01/11/2003 which was stated to be the consignment sale of M/s. Universal Starch Chemicals Allied Ltd., Mumbai. According to the petitioner, they are the licensed manufacturers and the petitioner had kept the article in the same condition as he had purchased it from the manufacturers. So according to the petitioner, he is entitled to the protection of Section 19(2) of the Prevention of Food Adulteration Act. Thus on the basis of the above ground, the petitioner filed Annexure A petition, and along with Annexure A petition he had produced the invoice mentioned above. After considering Annexure A petition, the court below passed order as per Annexure B, by which the request of the petitioner was declined. It is the above order sought to be quashed in this proceedings and also prayed to allow Annexure A petition. 4. I have heard Mr. T.A.Shaji, learned counsel for the Crl. M.C.No. 3415/ 2005 Page numbers petitioner as well as the public prosecutor. 5. Reiterating the averments taken in Annexure A petition and in this Crl.M.C., learned counsel for the petitioner submitted that Annexure B order passed by the court below is absolutely unsustainable and against the statutory provisions. In support of the plea to quash Annexure B order, he invited my attention to Section 19 (2) of the Prevention of Food Adulteration Act, which runs as follows; “ A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves- (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form and (b) that the article of food while in his possession was properly stored and that he sold it in the same state Crl. M.C.No. 3415/ 2005 Page numbers as he purchased it. ” So according to the learned counsel, if the petitioner is able to prove that the article in his possession and he sold are in the same state as he purchased it, he is entitled to get the benefit of Section 19(2), and in such a case no petition can be filed against the petitioner. 6. Admittedly, Annexure A petition was filed under Section 20 A of the Prevention of Food Adulteration Act. Section 20 A says 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.” 7. From the above Section, it can be seen that Section 20 A is Crl. M.C.No. 3415/ 2005 Page numbers an enabling provision of the court to implead any person during trial seen to have been committed an offence on the basis of the evidence adduced. Therefore, after the commencement of the trail, if the court is of the opinion that there is any evidence to connect the manufacturer with the commission of the offence, the manufacturer can be impleaded as an accused by exercising the powers under Section 20A of the Prevention of Food Adulteration Act. But that does not mean in this case, at this stage, the accused/petitioner is entitled to get the benefit of Section 19(2) and to implead the manufacturer under Section 20A of the P.F.A Act. In Annexure A petition, the petitioner has taken a contention that he had only repacked the Glucose in the same state which he had purchased and he had never made any change to the commodity which they are supplied by the manufacturer. This contention can be considered only on the basis of the evidence, that is yet to be adduced in this case. Of course, if the petitioner is able to establish or substantiate the above condition, certainly he is entitled to get the benefit of Section 19(2) of the Prevention of Food Adulteration Act. But the learned magistrate in the impugned order, especially in Crl. M.C.No. 3415/ 2005 Page numbers para 5, it is observed as “admittedly the Glucose alleged to have been supplied by Vasantham Products, 5/87, Kalarampatti Main Road, Salem -15 has been repacked by the petitioners. Hence the petitioners could not say that they have never made any change to the commodity which they have supplied by the manufacturer. They could not say that they have not adulterated food products and this court could not come to a finding that where the adulteration has been committed”. The court below cannot be blamed for the above observation since in Annexure A petition, the petitioner has made certain statements. According to him, the above observation is unwarranted. Even if it is admitted as that the petitioner has repacked the article, it does not mean that he had made adulteration with the food and if it is adulterated, the mode of adulteration etc. are question of facts which can be settled only on the basis of evidence. Therefore, I am of the view that such observation is unwarranted and premature. 8. In the light of the above discussion, I am of the view that it is open to the petitioner to move the court at appropriate stage of evidence and if the court thinks fit and proper in the light of the Crl. M.C.No. 3415/ 2005 Page numbers evidence on record at that time consider the question to implead the manufacturer as an additional accused. It is open to the petitioner / accused to adduce evidence and to substantiate his contention on the basis of Section 19(2) of the P.F.A Act and it is thereafter the court has to decide whether the jurisdiction under Section 20 A is to be exercised in terms of the prayer of the petitioner, untrammelled by any observation or finding contained in the impugned order or in this order. In the light of the above facts and circumstances of the case, the Criminal Miscellaneous Case is disposed of and to enable the court to take appropriate decision as directed above, the Annexure B order is quashed. Crl. M.C is disposed accordingly. V.K. MOHANAN, JUDGE scm