IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 108 of 2010 Date of Decision 28th March, 2011 __________________________________________________________ ITC Ltd. ….Pertitioner. Versus State of H.P. & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ___________________________________________________________ For the Petitioner: Mr. K.D. Sood, Advocate. For Respondent Nos.1 & 2: Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Deputy A.G. For Respondent No.3: Mr. Deepak Kaushal, Advocate. __________________________________________________________________ Dev Darshan Sud, J(oral) The petitioner has challenged the order dated 14th December, 2009 passed by the learned Chief Judicial Magistrate, Nahan impleading it as one of the accused in petition pending before the Court. 2. This case has a chequered history and unfortunately it has shuttled from Court to Court. It is undisputed before me that prior to the institution of the present petition, 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Cr.MMO No. 147 of 2008 was filed by the petitioner herein challenging the order impleading the petitioner herein as one of the accused, under Section 20-A of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). 3. The facts which are not disputed are that on 12th August, 2004 the Food Inspector visited the shop of accused Sanjay Kumar and purchased 1500 grams of ‘Atta’ from a sealed bag of “Ashirwad Atta” brand kept for sale for analysis. One of the samples was sent to Public Analyst, Kandaghat for examination and according to the report, the Public Analyst found alcoholic acidity of 0.21% as against the maximum prescribed standard of 0.18%. After seeking the consent of the Local Health Authority prosecution was launched against Shri Sanjay Kumar only. After about one year, the accused moved an application under Section 20-A of the Act alleging therein that M/s Sadhu Lal Madan Lal through its proprietor Bimal Parkash be impleaded as an accused. Thereafter, this accused also filed an application under Section 20-A of the Act claiming that food article has been bought from the manufacturer for which purpose proforma invoice dated 14.7.2004 was placed on record as proof. The Court considered the record and on no objection of the Food Inspector, the petitioner herein was impleaded as accused. 4. Adverting to the order dated 6.11.2006 this Court in its order extracted the findings of the trial Court: “06.11.2006: Present: None for the Food Inspector. Accused with counsel Shri M.K. Jain, Adv. An application for exemption of complainant Food Inspector, received which is 3 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 1, 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-1, 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, Announced Sirmaur Distt. at Nahan,H.P. 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 4 oath and also by producing some other evidence. 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 another Cr. Revision No., 44/93 decided on 20.5.96. 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 thisSection, 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 concenred 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 5 that the respondent-accused No. 2 should have come forward and deposed about all this on oath. In the instant case significantly, when the sample was taken by the Food Inspector from respondent Sanjay Kumar, in Panchnama Ext.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 not reference to the petitioner as manufacturer. Prima-facie the stand taken by respondent No. 4 is contradictory to the record.” This Court quashed the entire proceedings of impleading the petitioner herein as one of the accused holding that an inquiry has to be undertaken/conducted by the Magistrate under Section 20-A of the Act in accordance with law before further action is taken and to ensure that there is primfacie evidence on record adduced before the Magistrate that the person impleaded is in fact involved in the commission of offence as alleged. The Court also noticed that when the sample was taken by the Food Inspector from Sanjay Kumar, in Panchnama Ext.P3 against column No. 9, he disclosed the name of manufacturer as Biswas Food Private Limited, 515, Krishan Gali, Katra, Neel Chandani Chowk, Delhi-6 having Batch No. AA Packed on 6.7.2004. In the circumstances the Court also concluded that stand taken by the accused was contradictory. The case was sent back for decision in accordance with law. 6 5. Again the impugned order has been passed by the learned Magistrate holding that according to the Bill Ext.D-1 and statement of accused Bimal Parkash recorded on 3.10.2009 it was evident that he was running a wholesale shop of Karyana in the name and style of M/s Sadhu Ram Madan Lal, Katcha Tank, at Nahan and he had sold wheat flour to the accused Sanjay Kumar on 16.7.2004 vide Bill Ext.D-1 and he had purchased this Atta from M/s I.T.C. Limited, Parwanoo vide Invoice No. 0005723 and 3047162408 dated 14.7.2004 . He therefore proceeded to implead the petitioner herein as one of the accused. 6. What I find from this order again is that the Court does not notice as to whether Batch number in the invoices produced tallies with the batch number of the seized article which was purportedly purchased from I.T.C. Limited. 7. Learned counsel appearing for the petitioner urges that this impleadment is perse illegal as evidence brought on record does not connect the petitioner herein with the involvement of the sale of the foodstuff justifying its impleadment as accused in the case. Learned counsel submits that even if the submission is not accepted, the prosecution must otherwise fail as there was total non-compliance of Section 13 (2) of the Act. 8. Adverting to the second point first, what I find is that it is undisputed before me that no notice as envisaged under Section 13 (2) of the Act was given to the petitioner herein to enable him to exercise his rights under the Act. The Section mandates that: 7 “13(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 9. Learned counsel relies upon the decision of the Supreme Court in Rameshwar Dayal vs. State of U.P. 1996(2) FAC 197 holding: “ The matter arises under the Prevention of Food Adulteration Act. The sample taken was found to be adulterated. On the record it appears that the report of the Public Analyst is not supplied to the accused as required under Section 13 (2) of the Act. Consequetly, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provide that such a report should be supplied to the accusd within a certain period. The question arose in a similar case whether this rule is mandatory or directory. We need not launch into such a discussion in this case. We are satisfied that serious prejudice has been caused to the appellant because of non- supply of the Public Analyst’s report as required under Section 13 (2) of the Act. The High Court having noticed this, yet rejected the plea on the mere ground that such an objection was not raised 8 before the trial Court. It is not a question of an objection, but it is a question of prejudice. Such a point can be raised even at a later stage if material on record supports the same. In the result the conviction and sentence are set aside. The appeal is allowed accordingly.” (at p.197-198) Learned counsel also relies upon the decision of Allhabad High Court in Lakshmi vs. State 1996(2) Allahabad High Court 198 in support of his submissions. 10. Adverting to the fact situation of the case, the sample was seized in 1994 and now more than seven years have elpased. It cannot be said that sample would be fit for analysis even if the petitioner is granted an opportunity how to exercise his right of having the sample analysed from the Central Food Laboratory. That is aside from the fact that the Section itself provides the time limit within which such right is to be exercised. There is no doubt in my mind that the food article can not be analysed after a long period of time. Even otherwise, the adulteration found is one of marginal increasing in acidity and foodstuff would naturally increase its acidity after such a long spell of time. In these circumstances, this petition is allowed. Order dated 14th December, 2009 is quashed and set aside. 11. Before parting with the petition, I may observe that it will be open to the other accused to move the learned trial Court in case there is non-compliance of Section 13(2) of the Act and necessary consequences in accordance with law shall follow. Let 9 record of the trial Court be sent back immediately. March 28th, 2011 (Dev Darshan Sud), ms Judge 10