Criminal Misc. No. M-10717 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Misc. No. M-10717 of 2009 Date of Decision: 27.4.2009 The Hindustan Coca-Cola Beverages Pvt. Limited …Petitioner Versus State of Haryana and Another …Respondents AND 2. Criminal Misc. No. M-10718 of 2009 The Hindustan Coca-Cola Beverages Pvt. Limited …Petitioner Versus State of Haryana and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.S. Cheema, Senior Advocate with Mr. Rohit Khanna, Advocate for the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) By this common order, two Criminal Misc. Petitions bearing Nos. M-10717 of 2009 titled as “The Hindustan Coca-Cola Beverages Pvt. Limited v. State of Haryana and Another” and M-10718 of 2009 titled as “The Hindustan Coca-Cola Beverages Pvt. Limited v. State of Criminal Misc. No. M-10717 of 2009 2 Haryana and Another” will be decided together. It is agreed by counsel for the parties that for decision of the case, facts can be taken from Criminal Misc. No. M-10717 of 2009. The present petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint (Annexure P1) bearing No. 989/II/2003 titled as “Government Food Inspector (State) v. Navneet”. Complaint is stated to be pending in the Court of the Chief Judicial Magistrate, Hisar. It is stated that the petitioner-company is engaged in production, manufacture, distribution & supply of various beverages and soft drinks. The impugned complaint has been annexed as Annexure P1. The Government Food Inspector, on 8.8.2003 at about 12.10 P.M. found Navneet to be in possession of 20 crates of 500 ml. of Sweetened Carbonated Beverage “Sprite”. The Food Inspector followed the due procedure and after sealing the food items took the same into his possession and sent for analysis to the Public Analyst, Haryana. As per the report of Public Analyst, the sample was not in consonance with the prescribed standards and the sample was also held to be misbranded. Navneet, vendor, on appearance, filed an application under Section 20A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). The application was allowed vide order dated 17.5.2007. The order has been annexed as Annexure P2. The order notices filing of application by the accused/vendor that food item found to be adulterated, misbranded and manufactured by the petitioner-company. Criminal Misc. No. M-10717 of 2009 3 Accordingly, the trial Court, without recording any evidence invoked Section 20A of the Act, and summoned the petitioner-company. This Court in Moti Singh v. Haryana State and Another Criminal Misc. No. M-2177 of 2007 decided on July 28, 2008 relied upon the judgment of the Hon'ble Apex Court rendered in Om Parkash Shivparkash v. K.I. Kuriakose 1999(4) Recent Criminal Reports 817 (SC) and had held that order under Section 20A of the Act can only be passed after mandate of law laid down in Om Parkash Shiv Parkash's case (supra) is followed. It will be apposite to reproduce reasoning given by this Court in Moti Singh's case (supra):- “During the course of arguments, Mr.Suman Jain, Advocate, has very forcefully submitted that this Court should give due emphasis to the word “evidence adduced before it”. To appreciate the argument of Mr. Suman Jain, Advocate, it will be necessary to reproduce Section 20A of the Act:- “20A. Power of court to implead manufacturer, etc. — 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 court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or Criminal Misc. No. M-10717 of 2009 4 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”. Mr. Jain has further submitted that the evidence adduced is to be construed strictly and there ought to be some material before the Court to arrive at the conclusion that accused is in possession of cash memo which can be termed as warranty. Mere filing of application will not entitle the Court to dispense with requirement of Section 20A of the Act to act upon the evidence adduced. He has drawn my attention to Omparkash Shivparkash v. K.I. Kuriakose 1999(4) Recent Criminal Reports 817 (SC). Para 7 noted the various contentions of the parties and the same is reproduced below:- “7. Section 319 of the Code empowers the Court to proceed against any person who is not being made an accused already, if it appears from the evidence collected in the inquiry or trial of Criminal Misc. No. M-10717 of 2009 5 an offence that such person has committed an offence for which he could be tried together the with already arraigned accused. One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the Court to from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the Court can proceed against the other person while in the latter, the satisfaction of the Court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from “the evidence adduced before it during the trial”. In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends”. Para 15 of Om Parkash Shiv Parkash's case (supra) reads as under:- “15. 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 Criminal Misc. No. M-10717 of 2009 6 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 stage”. On 22.4.2009, this Court had passed the following order:- “Counsel for the petitioner has submitted that in the present case, order under Section 20A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”) has not been passed in consonance with the provisions of the Act. Therefore, order passed under Section 20A is to be set aside. This Court is of the view that to cure the defect, the matter can be remanded to the trial Court to pass the fresh order under Section 20A of the Act in consonance with the mandate of law laid down by Hon'ble the Apex Court in M/s Omparkash Shivprakash v. K.I. Kuriakose and Others 2000 Criminal Law Journal 26. Issue notice of motion. On the asking of the Court Mr. S.S. Mor, learned Senior Deputy Advocate General, Haryana, Criminal Misc. No. M-10717 of 2009 7 accepts notice on behalf of the respondents. A copy of petition has been supplied to him. Mr. R.S.Cheema, Senior Advocate, assisted by Mr. Rohit Khanna, Advocate, submits that next date of hearing before the trial Court is 23.4.2009. Mr. Cheema has further stated that particulars of the nominee as envisaged under Section 17(2) of the Act shall be furnished by the counsel for the petitioner before the trial Court. He further states that personal appearance of the petitioner be exempted before the trial Court. Accordingly, personal appearance of the petitioner is exempted before the trial Court subject to filing an undertaking that he shall cause appearance as and when required and the evidence recorded in his absence but in the presence of his counsel shall be binding upon him. Trial Court may also specify any other condition in the undertaking to be furnished by the petitioner. On the furnishing of undertaking, the personal appearance of petitioner shall stand exempted. Case to come up for further hearing on 27.4.2009. A photocopy of this order be placed on the file of connected Criminal Misc. No. M-10718 of Criminal Misc. No. M-10717 of 2009 8 2009. Copy of the order be given dasti on payment of usual charges.” In compliance with the order dated 22.4.2009, requisite undertaking has been furnished before the trial Court. Accordingly, impugned order (Annexure P2) passed by the trial Court is set aside. The mater is remanded back to the Court of the Chief Judicial Magistrate, Hisar, who notwithstanding the order dated 17.5.2007 shall proceed with the trial and proceed to decide application under Section 20A of the Act (Annexure P8) afresh. Vendor Navneet may step into witness box and adduce his evidence and place on record necessary cash memo from where it can be inferred that food articles were manufactured by the petitioner- company. The trial Court shall be guided by the observations made by the Hon'ble Apex Court in Om Parkash Shiv Parkash's case (supra) and pass a fresh order, in accordance with law. With the observations made above, both the petitions are disposed off. (Kanwaljit Singh Ahluwalia) Judge April 27, 2009 “DK”