IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 386 of 2001 ----------------------------- ( AGAINST THE ORDER DATED 07/02/2001 IN CMP 8344 /2000 IN CC.654/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD ) REVN. PETITIONERS/PETITIONER (1ST ACCUSED) AND 2ND ACCUSED: ------------------------------------------------------------------------------- 1. K. RAJAN, RAJ NIVAS, KOLLAMKAVU, PAZHAKUTTY P.O. 2. R. RADHA, -DO- -DO- BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENTS/COUNTER PETITIONER (COMPLAINANT ) AND STATE:: ------------------------------------------------------------------------------- 1. MANOJ, FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.386 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 2nd day of December, 2008 O R D E R -------------- Revision petitioner is accused in C.C. No.654 of 1998 on the file of the Judicial First Class Magistrate, Nedumangad. The Food Inspector filed complaint against revision petitioner and another for offences punishable under the Prevention of Food Adulteration Act (for short, “the PFA Act”) alleging that the Food Inspector purchased lime pickle in oil from the shop of revision petitioner and others which on analysis was found not conforming to the prescribed standards. When the Food Inspector was in the box, revision petitioner filed C.M.P. No.8344 of 2000 supported by an affidavit to implead the Managing Partner of M/s.Vee Pee Enterprises alleging that the said concern is the manufacturer of the lime pickle in oil from whom the Food Inspector is stated to have purchased the sample. Learned magistrate by the impugned order dismissed the application. Hence this revision. 2. Heard. 3. Counsel for revision petitioner contended that it was at the evidence stage that the request for impleading was made and hence CRL. R.P. No.386 of 2001 -: 2 :- learned magistrate was not justified in rejecting the request. 4. On going through the order under challenge it is seen that the request was to implead the Managing partner of M/s./ Vee Pee Enterprises alleging that the said concern had manufactured the lime pickle in oil. Learned magistrate observed that even as per the bill that was shown to and attempted to be proved through the Food Inspector, what was purchased was only lime and not lime pickle in oil. Learned magistrate also observed that the Food Inspector had denied the bill and claimed that revision petitioner had shown him at the time of purchase of sample another bill stated to be issued by M/s.H.D. Sham Agencies. Food Inspector had put his initial on that bill and returned to the revision petitioner but that was not the bill which the revision petitioner had attempted to introduce at the time the Food Inspector was giving evidence. Learned magistrate also observed that impleading is possible only on evidence and dismissed the application which according to the counsel is not justified. 5. Section 20A of the PFA Act states thus: “Power of court to implead manufacturer, etc.- Where at any time during CRL. R.P. No.386 of 2001 -: 3 :- 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 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 the Code of Criminal Procedure, 1973 (2 of 1974) or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20” (under line supplied). 6. Section 319 of the Code of Criminal Procedure states that court has power to implead additional accused when it appears from the evidence that any person not being an accused has committed any offence for which he could be tried together with the accused. Therefore, it is clear that it is only when 'evidence' is let in and from the 'evidence' it is revealed that another person not being accused CRL. R.P. No.386 of 2001 -: 4 :- has committed the offence that impleading is possible. This position has been clarified by a learned Single Judge of this Court in Varghese v. Augusthy (1988 (1) KLT 80) and considering Section 20A of the PFA Act, by a Division Bench of this Court in Radhakrishnan Nair v. Food Inspector (1989(2) KLT 298). Mere fact that an affidavit in support of C.M.P. No.8344 of 2000 was filed or that the bill in question was unsuccessfully attempted to be marked in evidence when P.W.1 was in the box cannot amount to 'evidence' as contemplated under Section 20A of the PFA Act or under Section 319 of the Cr.P.C. Learned magistrate is therefore justified in rejecting the application as there was no evidence as contemplated in the said provisions. However since learned magistrate was rejecting the application on that ground, it was not necessary to consider the merit of the request for impleading at that stage. Hence the said observations and finding entered by the learned magistrate in the impugned order are set aside. It will be open to the revision petitioner to make a request for impleading at the appropriate stage as contemplated in Section 20A of the PFA Act and Section 319 of the Cr.P.C. if the revision petitioner is entitled to such a course and if such a request is made at the appropriate stage, learned magistrate shall CRL. R.P. No.386 of 2001 -: 5 :- consider it as per law and the evidence. With the above observations, Revision petition is dismissed. Criminal Miscellaneous Petition No.1739 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL.R.P. NO. 386 OF 2001 =================== O R D E R 2ND DECEMBER, 2008