IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 941 of 2009(E) ------------------------------------ CC.NO.607/1999 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA. .................... PETITIONER/ACCUSED NO.4: ------------------------------------------ C.C.JOHNSON, PROPRIETOR, CHUNGATH TRADERS, GENERAL MERCHANTS AND COMMISION AGENCIES, MARKET ROAD, CHALAKKUDY. BY ADVS. MR.T.A.SHAJI, SMT.M.R.JAYALATHA. RESPONDENTS/ 1ST ACCUSED & COMPLAINANT: ------------------------------------------------------------------------ 1. M.P.GEORGE, S/O.PAULOSE, MADASSERRY HOUSE, MOOKKANNUR. 2. V.K.BEENA, FOOD INSPECTOR, ANGAMALY CIRCLE. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR. GOPAKUMAR G. (ALUVA), SMT.ANUPAMA JOHNY, R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 941 of 2009-E ================== Dated this the 3rd day of June, 2009. O R D E R Petitioner, who was impleaded as additional accused under Sections 2(ia), (m) and 7(i) read with Sction 16(1)(a) (i) invoking the power under Section 20A of Prevention of Food Adulteration Act by Judicial First Class Magistrate Court-II, Aluva in C.C.No.607/1999, is challenging Annexure F order passed by the Magistrate in this petition filed under Section 482 of the Code of Criminal Procedure. 2. Learned Counsel appearing for the petitioner and first respondent were heard. 3. The Food Inspector, who was examined in the case as PW1 took sample of Gingelly Oil from the shop of first respondent on 19-12-1998 after preparing mahazer and based on the sample after getting report, prosecution was launched against the first respondent as first accused and second accused is the licensee of the shop and third accused, the manufacturer of Gingelly Oil. First respondent Crl.M.C.No.941/2009 -2- produced the original of Annexure C bill evidencing purchase of Gingelly Oil in the trade name “Nirmal” on 18-12-1998 and contended that the sample was taken from the said Gingelly Oil. Annexure E petition was filed under Section 20A of Prevention of Food Adulteration Act to implead petitioner from whom that Gingelly Oil evidenced by Annexure C bill was purchased. Under Annexure F order, the Magistrate impleaded petitioner as an additional accused. That order is challenged by the petitioner contending that Annexure F order is illegal and even if first respondent had purchased Gingelly Oil as evidenced by Annexure C bill, it will not connect petitioner with the Gingelly Oil purchased by Food Inspector from the shop of first respondent. It was argued that Annexure A complaint shows that the sample was taken from a tin of Gingelly Oil, which was seized and when under Annexure C bill the sealed tin of Gingelly Oil with brand name “Nirmal” manufactured by third respondent was purchased petitioner cannot be found guilty for adulteration and hence he cannot Crl.M.C.No.941/2009 -3- be impleaded as an accused. Learned Counsel argued that as seen from the Mahazer there were several similar tins in the shop at that time and it cannot be said that sample was taken from that tin, which was purchased under Annexure C bill and on that basis also petitioner cannot be impleaded. Learned Counsel also argued that Annexure C was not issued by the petitioner and it is not genuine and in such circumstances petitioner cannot be compelled to face trial in this case as an accused. Learned Counsel appearing for first respondent relied on the evidence of PW1, when he was cross-examined by third accused, manufacturer of Gingelly Oil, it was suggested that there was tampering of the bottle and the bottle from which sample was taken was not as it was manufactured and so learned Magistrate was justified in impleading the petitioner as an accused. 4. Question whether the sample taken by the Food Inspector from the tin purchased by first respondent from the petitioner can be decided only at the time of trial. It was pointed out by the learned Counsel appearing for the Crl.M.C.No.941/2009 -4- petitioner that Food Inspector had found several similar tins of Gingelly Oil in his hop at the time of purchasing the Gingelly Oil. But on that ground it cannot be said that Annexure F order is illegal. As the question whether the sample was taken from that particular tin purchased by first respondent under Annexure C bill can only be proved at the time of evidence. So also whether Annexure C bill is genuine or not and was issued by the petitioner or not are matters for evidence. In the light of the evidence on record and the stand taken by the manufacturer, third accused, the Magistrate was justified in impleading the petitioner based on Annexure C bill produced by first respondent. Hence I find no reason to interfere with Annexure F order. It is made clear that petitioner is entitled to raise all defence which is raised in this petition before the Magistrate. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr