HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.: 2 of 2008 Reserved on: 15.5.2008 Decided on: 26.5.2008 Cargill Foods India Ltd. ………Petitioner. Versus State of H.P. through Food Inspector ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Atul Nehra & Mr.Ajay Kumar, Advocates. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J.: This is a petition filed by the petitioner under Section 482 Cr.P.C. read with Article 227 of the Constitution of India seeking quashing of the proceedings as against the petitioner-Company for alleged offences under Section 7 of the Prevention of Food Adulteration Act, read with Section 16, (hereinafter to be referred as PFA Act). Briefly stated the facts of the case are that the respondent-Food Inspector filed a complaint before the learned trial Court as against Suresh Kumar under Section 16 read with Section 7 of PFA Act. The summons were issued to the said Suresh Kumar on 29.11.2004. On 15.3.2005, accused Suresh _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Kumar moved an application under Section 20-A for impleading M/s Durga Flour Mills through its Proprietor Kulbhushan Gupta as an accused on the grounds that the packets of Anand Vanaspati Ghee of 500 ML each were purchased by accused from the said Firm. The application was supported by the original invoice and the learned trial Court allowed the said application and impleaded M/s Durga Flour Mills through its Proprietor Kulbhushan Gupta as an accused on that date. Thereafter, another application was filed under Section 20-A by the said Kulbhushan Gupta for impleading M/s Navyug Traders, Parwanoo alleging that he had purchased the pouches of Vanaspati Ghee from the said Firm. The application was also allowed and the said Firm was also impleaded as an accused. A perusal of the record shows that thereafter an application under Section 20-A was moved by M/s Navyug Traders for impleading M/s Parakh Food Limited through its Managing Director as co-accused alleging that they had purchased the Vanaspati from the said Firm. The said Parakh Food Limited, now merged in the petitioner-Firm, was therefore, impleaded as an accused through its Managing Director. Being aggrieved, the petitioner has filed the present petition. I have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by the learned counsel for the petitioner were that the petitioner-Firm has not been impleaded as a party at an appropriate stage since the provisions under Section 20-A could not have been invoked as against the petitioner-Firm until the trial begins and before recording - 3 - of any evidence or recording the plea of other accused persons under Section 251 of the Cr.P.C. To substantiate his point, the learned counsel for the petitioner had placed reliance upon the decision of the apex court in Om Parkash Shiv Parkash v. K.I. Kuriakose and others, (1999) 8 Supreme Court Cases 633. A perusal of this decision shows that their Lordships had considered the provisions of Section 20-A as well as of Section 319 Cr.P.C. and had also considered as to at what stage these provisions of Section 20-A of PFA Act can be invoked by the Court. It was held in para 11 of the judgment that the trial of such a case was to be conducted in a summary manner and the case has to be tried as summons case by a Magistrate. It was further observed that when the accused appears or is brought before the Magistrate, the particulars of offence shall be stated to him as provided under Section 251 Cr.P.C. and he shall be asked whether he pleads guilty or not. Section 254(1) of the Code says that if the Magistrate does not convict the accused, he shall proceed to hear the prosecution and take all such evidence. Thereafter, observations were made in para 12 of the judgment, which are relevant and are being reproduced below: “The above scrutiny of the relevant provisions reveals that the trial of offences under the Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code, if the Magistrate opts to hold summary trial. Hence, evidence in a trial under the Act can be adduced only after recording the plea of the accused as envisaged in the said section. Thus, it is clear that a Magistrate can implead any person under Section 20- A of the Act only after reaching the stage envisaged in Section 254(1) of the Code.” - 4 - After referring to some other decisions of the High Courts, it was finally concluded by their Lordships under para 16 as under: “Thus the position is clear that power under Section 20-A cannot be invoked before the stage of adducing evidence in the trial, nor can it be invoked after the conclusion of the trial. In the present case, the Magistrate has chosen to exercise the power prematurely and hence the action is without jurisdiction. We, therefore, set aside the impugned judgment of the High Court and that of the Magistrate. However, we make it clear that this judgment will not preclude the Magistrate from considering the question afresh at the appropriate state.” I have already mentioned the manner in which the present petitioner was impleaded as an accused and the stage when he was impleaded. There is nothing on record to show that a notice of accusations was put up to any of the accused under Section 251 Cr.P.C. or the court had proceeded to record the evidence as envisaged under Section 254(1) of the Code. Therefore, it is clear that until and unless some evidence has been recorded or the provisions of Section 251 Cr.P.C. had been complied with, the present application under Section 20-A impleading the petitioner as an accused could not have been allowed. Therefore, the said order passed by the learned trial Court summoning the petitioner is liable to be set aside. However, as per the decision in the above case, this will not preclude the Magistrate from considering the question afresh at the appropriate stage. The learned trial Court shall proceed with the case keeping in view the findings recorded in the above decision of the apex court and the observations made above. There is no question to give any findings on another plea raised by the learned counsel that the petitioner could not invoke powers under Section 13(2) of the PFA Act once the order impleading and summoning the petitioner as accused has been set aside. - 5 - In view of the above discussion, the present petition is allowed and the order summoning the petitioner is set aside. The court shall proceed with the trial of the case. Steps shall be taken to dispose of the case at an early date. The petition stands disposed of accordingly. In view of the final disposal of the main petition, all the pending miscellaneous applications, if any, shall also stand disposed. Interim order shall stand vacated. (V.K. Ahuja), May 26, 2008 Judge. (TILAK)