IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.MC.No. 1144 of 2008() ------------------------------------ CC.27/2004 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONERS/ADDL.5TH & 6TH ACCUSED: ------------------------------------------------------------ 1. M/S. KAIRALI TRADERS, NELLIKUZHI P.O., KOTHAMANGALAM. 2. M/S. KAIRALI TRADERS, REP. BY SRI.ABOOBACKER, S/O.MOHAMMED KAREEM, PUTHUPARAMBIL, NELLIKUZHI P.O.,KOTHAMANGALAM. BY ADV. MR.SANTHOSH SUBRAMANIAN MR.SHEJI P.ABRAHAM RESPONDENTS/COMPLAINANT/ACCUSED 1-4/STATE: ----------------------------------------------------------------------------- 1. FOOD INSPECTOR, THIRUVALLA CIRCLE. 2. THOMAS SEBASTIAN (SUNNY), 48 YEARS, S/O. THOMAS, MENCHERIKALAM HOUSE, VEROOR P.O., CHANGANACHERRY. 3. ROBORT J.MANCHERIKALAM, MANCHERIKALAM HOUSE, INDUSTRIAL NAGAT P.O., KURISUMMOODU, CHANGANACHERRY. 4. M/S. KOCHI VELICHENNA VYAPARAM, MARKET ROAD, CHANGANACHERY. 5. MATHEW SEBASTIAN, S/O. V.SEBASTIAN, KUTTAM PEROOR, MADAPPALLY P.O., CHANGANACHERRY. 6. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R6 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R5 BY ADV. MR.C.S.MANILAL. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/12/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO. 1144 OF 2008 ------------------------------------------ Dated 4th December 2009 O R D E R Petitioners are accused 5 and 6 in C.C.27/2004 on the of Chief Judicial Magistrate, Pathanamthitta. They were impleaded as additional accused later, after cognizance for the offence under Sections 16(I-A) (i) read with Section 2(ia)(c) and Section 2(1) of Prevention of Food Adulteration Act read with Rule 5 Appendix B(A-17.01) and Rule 50 and Rule 50(1-B) of P.F.A Rules, were taken based on a bill produced by the fourth accused. The bill was shown to the Food Inspector, when examined and he was asked whether the bill was not shown to him. Food Inspector replied in the negative. Still the document was marked. Petitioners were impleaded as additional accused subsequently. Hence they could not have cross examined PW2 about the bill. Later fourth accused was examined as DW1. Though adjournment was granted to enable the counsel appearing for the petitioners to cross examine as he was laid up, he Crmc 1144/08 2 did not avail the opportunity which according to the petitioners was for without valid reasons as counsel was laid up. After closing the evidence, petitioners filed Crl.M.P.851/2008 to re-call DW1 to cross examine him, contending that the bill, which is marked as Ext.D2, was not genuine and from the copy of the bill available with petitioners, it is clear that the entries were manipulated. It is therefore, contended that it is necessary to cross examine DW1 on this aspect. By order dated 7/3/2008 the petition was dismissed for the reason that petitioner was granted sufficient opportunity, but he did not cross examine. Petition was admitted by this court on 14/3/2008 and an order of stay of further proceedings was granted which was subsequently made absolute until further orders. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Petitioners were impleaded as additional accused, on the ground that it was they who supplied the adulterated coconut oil to the fourth accused based on Ext.D2 bill marked by the learned Magistrate. DW1 was not cross examined by the Crmc 1144/08 3 petitioners. According to the petitioners it was because of the illness of the counsel. Though learned Magistrate was justified in finding that opportunity was granted. When the question is whether Ext.D2 is genuine or not and it is a relevant material fact, opportunity could have been granted to cross examine DW1. In such circumstances, interest of justice warrants that learned Magistrate should permit petitioners to cross examine DW1. Petition is allowed. Order in Crl.M.P.851/2008 in C.C.27/2004 is set aside. Crl.M.P.851/2008 stand allowed. Chief Judicial Magistrate, Pathanamthitta is directed to re-call DW1 and permit the petitioners to cross examine. It is made clear that petitioners shall not seek adjournment for the purpose of cross examination of DW1 and on the date fixed by the court, the counsel has to cross examine DW1 and if not, Magistrate is to proceed with the case by hearing arguments. M.SASIDHARAN NAMBIAR, JUDGE. uj.