IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 Crl.MC.No. 2663 of 2010() ------------------------------------- CC.201/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): ADDL. 3RD ACCUSED --------------------------------------------------------- M/S.THATIKONDA SATYANARAYA & SONS 16-7-90 OLD GRAIN MARKET AREA, WARANGAL 506002(A.P) REPRESENTED BY ITS MANAGING PARTNER. BY ADVS. SRI.P.K.IBRAHIM SRI.D.B.BINU SMT.K.P.AMBIKA SMT.A.M.FASEENA RESPONDENT(S): COMPALAINANT/STATE ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. THE FOOD INSPECTOR, EDAPPALLY CIRCLE 3. PONNAN K., PRODUCTION SUPERVISOR, M/S.NEST CONDIMENTS LTD., THENGODE P.O. EDACHIRA, COCHIN. 4. M/S.NEST CONDIMENTS LTD., THENGODE P.O., EDACHIRA, COCHIN-682021. REPRESNTED BY PONNAN K, PRODUCTION SUPERVISOR, M/S. NEST CONDIMENTS LTD., THENGODE P.O. EDACHIRA, COCHIN. PUBLIC PROSECUTOR SRI.REKHA C.NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2663 OF 2010 =========================== Dated this the 30th day of September,2010 ORDER Third accused who was impleaded as an additional accused by Judicial First Class Magistrate Court-I, Aluva in C.C.201/2007 as per order dated 5.3.2010, on Annexure A5 petition filed by the first accused under section 20A of Prevention of Food Adulteration Act filed this petition under section 482 of Code of Criminal Procedure on receipt of Annexure A7 summons. 2. Though notice was served on the third respondent, first accused at whose instance petitioner was impleaded did not appear. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Annexure A6 proceeding paper of Crl.M.C.2663/2010 2 Judicial First Class Magistrate shows that after appearance of accused 1 and 2, the case was posted for evidence to 5.12.2009. On that day Annexure A5 petition filed by first accused was allowed, before adducing any evidence and the petitioner was impleaded as the third accused. The question is whether learned Magistrate is empowered to implead a person who is not an accused while exercising powers under section 20A of Prevention of Food Adulteration Act, before adducing any evidence. 5. Section 20A provides that where at any time during the trial of any offence alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, 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 Code of Criminal Procedure or in Section 20 of Prevention of Food Adulteration Act to proceed against him, as though, prosecution had been instituted against him under section 20. Crl.M.C.2663/2010 3 But as is clear from Section, the power under section 20A could be exercised at any time during trial but only on being satisfied “on the evidence adduced before it” . Therefore it is mandatory that evidence must be adduced before the Magistrate exercise the powers under Section 20A of the Prevention of Food Adulteration Act. As is clear from Annexure A6 proceeding paper, learned Magistrate allowed Annexure A5 application and impleaded the petitioner, exercising the power under section 20A, before recording any records. In such circumstances, the order is illegal. Petition is allowed. The order in Annexure A5 MP 308/2010 dated 5.3.2010 impleading petitioner as the third accused under section 20A of Prevention of Food Adulteration Act is quashed. It is made clear that learned Magistrate can consider the application, at the appropriate stage in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.2663/2010 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006