IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.MC.No. 567 of 2008 -------------------------------- [CC.NO.1096/1998 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA] .................... PETITIONERS/ACCUSED 4 TO 6: ----------------------------------------------- 1. S.K.AYAKALI NADAR SONS, 1093, PERIYAKULAM ROAD, THENI- 625531. 2. S.K.A.P.BALAKRISHNAN, S/O.PONNUSWAMY NADAR, S.K.AYAKALI NADAR SONS, 1093, PERIYAKULAM ROAD, THENI -625531. 3. S.K.A.P.VAJRAVEL, S/O.PONNUSWAMY NADAR, S.K.AYAKALI NADAR SONS, 1093, PERIYAKULAM ROAD, THENI -625531. BY ADV. MR.S.RADHAKRISHNAN. RESPONDENTS/ACCUSED NO. 1 TO 3/RESPONDENT/COMPLAINANT/ RESPONDENT: --------------------------------------------------------------------------------------------------- 1. P.K.SIVASANKARA PILLAI, RAGAVILLA, MATHILBHAGAM, THIRUVALLA. 2. SMT.AMMINI AMMA, RAGAVILLA, MATHILBHAGAM, THIRUVALLA. 3. RANGANATHA REDDIYAR, COMMISSION AGENT, VADAPPILLY, CHANGANASSERY. 4. THE FOOD INSPECTOR, THIRUVALLA. 5. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R4 & R5 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR, R1 & R2 BY ADVS. MR.V.MANOJ KUMAR, MR.IYPE JOSEPH, R3 BY ADV. MR.N.A.MURALEEDHARAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.567 OF 2008 ------------------------------------------ Dated 1st March 2010 O R D E R When can a person who is not an accused could be proceeded against under Section 20 A of Prevention of Food Adulteration Act. Can he be impleaded as an additional accused before evidence is adduced? These are the questions to be settled in the case. 2. Facts are not disputed. Fourth respondent, Food Inspector, Thiruvalla filed a complaint before Judicial First Class Magistrate, Thiruvalla against respondents 1 to 3, the accused, alleging that they committed offence under Section 7 (i), 16(1A) of Prevention of Food Adulteration Act (hereinafter referred to Crmc 567/2008 2 as the Act). Summons were issued to respondents 1 to 3. Learned Magistrate recorded the evidence of the complainant, as provided under Section 244 of Code of Criminal Procedure and thereafter framed charge on 17/3/2003. When the case was posted for recording evidence on 2/6/2003 third respondent filed Annexure-I petition under Section 20 A of the Act, producing a delivery note as well as form XXVI issued under Tamilnadu General Sales Tax Act to implead the petitioners, the firm and its partners, as additional accused 4 to 6 contending that the food article was purchased from the firm and so they are also concerned with the offence alleged in the case. By order dated 2/7/2003, learned Magistrate allowed the petition and Crmc 567/2008 3 impleaded petitioners as accused 4 to 6. This petition is filed under Section 482 of Code of Criminal Procedure to quash the order passed under Section 20 A of the Act contending that when evidence was not adduced, learned Magistrate cannot implead petitioners as additional accused. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned counsel relying on the decision of Delhi High Court in Ramkumar v. Municipal Corporation of Delhi (1973 FAC 75) and High Court of Himachal Pradesh in Ramakrishnan Yoginder Pal v. State of Himachal Pradesh (1992 (2) FAC 133) and the Apex court in M/s.Omprakash Sivaprakadh v. Kuriakose (1999 (3) KLT 861) and this Crmc 567/2008 4 court in Govinda Rao v. Food Inspector (2002 (1) KLT 843), Francis v. Dinesan (2003 (1) KLT 370) and Aiyakkali Nadar sons v. State of Kerala in 2005 (4) KLT SN 73) argued that third respondent had filed the petition under Section 20 A, before any evidence was adduced and hence, learned Magistrate could not have impleaded petitioners as additional accused. Learned counsel argued that it is settled law that power under Section 20 A can be invoked only on the evidence adduced before the court and as the petition was filed and allowed by the court prior to adducing any evidence, the order impleading petitioners as additional accused is illegal and is to be quashed. 5. Section 20 A of the Act deals Crmc 567/2008 5 with the power of the court to implead the manufacturers and others. Under the Section, at any time during trial of any offence under the Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food and where 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 proceed against him, as though prosecution had been instituted against him under Section 20, notwithstanding anything contained in Sub Section 3 of Section 319 of Code of Criminal Procedure or Section 20 of the Act. Section 20 of the Act deals with cognizance and trial of offences. Section Crmc 567/2008 6 319 of Code of Criminal Procedure deals with the power of the court, to proceed against persons appearing to be guilty of offence. Under Sub Section 1 where in the course of any inquiry into, or trial of an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. Sub Section 3 provides that any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. 6. Section 20 A of the Act enables Crmc 567/2008 7 the court, trying a person for an offence under the Act, notwithstanding anything provided under Sub Section 3 of Section 319 of Code of Criminal Procedure, to proceed against such person as though prosecution had been instituted against him under Section 20, if at any time during trial, on the evidence adduced before it, the court is satisfied that such manufacturer, dealer or distributor is also concerned with that offence. Section 20 A of the Act reads. “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 Crmc 567/2008 8 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 Code of Criminal Procedure, 1973 or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.” 7. When Sub Section 1 of Section 319 provides that in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, Section 20 Crmc 567/2008 9 A of the act provides that at any time during the trial of any offence under the Act, the court is satisfied that such manufacturer, distributor or dealer is also concerned with that offence, he could be proceeded against. Both Section 319 of Code of Criminal Procedure and Section 20 A of the Act enables the court to proceed against a person, who is not facing trial before the court as if, prosecution has been instituted as against him. In both the cases, the power could be invoked only on the evidence adduced before the court. When Section 319 provides that to enable the court to proceed against such person, it should appear to the court that the said person has committed any offence for which such person could be tried with the Crmc 567/2008 10 accused. Section 20 A provides that court can exercise the power if on the evidence adduced before it the court is satisfied that the manufacturer, distributor or dealer who is not an accused in the case, “is also concerned with that offence”. It is thus clear that to invoke power under the Act, court is to be satisfied on the evidence that such manufacturer, distributor or dealer is also concerned with that offence. To invoke the power under Section 319 of Code of Criminal Procedure or under Section 20 A of the Act, some evidence before the court. Before any evidence is adduced before the court, the said power cannot be invoked. 8. Apex court in Kishun Singh v. State of Bihar (1993 AIR SCW 771) had Crmc 567/2008 11 considered the “evidence” contemplated under Section 319 of Code of Criminal Procedure and held. “On a plain reading of Sub Section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub Section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not Crmc 567/2008 12 arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police.” Apex court in RajKishore Prasad v. State of Bihar (1996 (4) SCC 495) had occasion to consider whether a court of Session could invoke the power under Section 319 before any evidence was adduced before it, on the materials placed before the committal court. It was declared that such evidence cannot be used and only the evidence adduced before the Sessions court, could be treated as sufficient to proceed under Section 319 of Code of Criminal Procedure. The position has been re- iterated in Ranjit Singh v. State of Punjab (AIR 1993 SC (3) 3148). Crmc 567/2008 13 9. Division Bench of this court in Radhakrishnan Nair v. Food Inspector (1990 Crl.L.J 713) had occasion to consider the very same question. That was a case where, before evidence was adduced the Food Inspector filed an application before the Magistrate stating that it is not the accused who is facing trial, who is the person responsible for the sale of adulterated milk, but the person sought to be impleaded. Petition was filed under Section 319 of Code of Criminal Procedure 20 to implead that person as the accused. It was allowed by the Magistrate. This court quashed that order holding that the power can be invoked against such person, only if it is established that there is some evidence to hold that he has committed Crmc 567/2008 14 an offence which could be tried along with the accused. Their Lordships held. “Powers under Section 20 A cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that Magistrate can act under the Section. Obviously Section 20 A could not have been invoked to implead the petitioner as a sole accused.” Learned Single Judge in Aiyakkali Nadar Sons v. State of Kerala (2005 (4) KLT SN 73) following the decision of the Apex court in M/s.Omprakash Shivaprakash's case (supra) also took the view that when no evidence is adduced in the course of trial, invocation of power under Section 20 is not justified. Their Lordships considering Crmc 567/2008 15 Section 20 A of the Act held. “The above provision overrides the ban contained in S.20 of the Act that no prosecution shall be instituted for the offences under the Act, except by or with the consent of the authorities mentioned in the Section. The essential conditions for invoking the power under S.20-A are that (1) the trial should have begun already; (2) the trial must be of any offence under the Act allegedly committed by a person other than the manufacturer or distributor or dealer of the food article; (3) the Court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence; (4) such satisfaction must have been Crmc 567/2008 16 formed “on the evidence adduced before the Court”. It was also held that the power under Section 20 A of the Act cannot be invoked before the stage of adducing evidence in the trial, nor can it be invoked after the conclusion of the trial and the Magistrate in that case had chosen to exercise the power prematurely and therefore, the action is without jurisdiction. 10. That exactly is the position herein. As is clear from Annexure-II order passed by the learned Magistrate, though Food Inspector was examined as PW1 at the stage of Section 244 of Code of Criminal Procedure, the documents, based on which the third respondent sought to implead the petitioners as additional accused, were not produced before the court earlier. The Crmc 567/2008 17 Food Inspector was not questioned on those materials. Therefore, when the charge was framed on 17/3/2003, there was no evidence before the court to show that petitioners were concerned with the offence being tried by the learned Magistrate. When Annexure-I petition was filed on 2/6/2003 also, there was no evidence. When the petition was allowed on 2/7/2003 also no evidence was adduced. In such circumstances, learned Magistrate was not justified in invoking the power under Section 20 A of the Act. 11. Petition is allowed. The order dated 2/7/2003 allowing Annexure-I petition and impleading petitioners as accused 4 to 6 is quashed. But that does not mean that, if on the evidence adduced learned Crmc 567/2008 18 Magistrate is satisfied that petitioners are also concerned with that offence, they cannot be impleaded. Learned Magistrate is definitely entitled to proceed against the petitioners, if he is satisfied on the evidence adduced before him that they are also concerned with that offence. M.SASIDHARAN NAMBIAR, JUDGE. uj.