D SUNDARAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicants seek quashing of order dated 2nd August, 2008 passed by the learned Judicial Magistrate First Class, Ankleshwar in Criminal Case No.7129/2005.

(2.) The respondent No.2 Food Inspector visited the premises of the original accused No.1 on 1st March, 2005 and drew samples of Kissan Tomato Ketchup. The said sample came to be sent for analysis to the Public Analyst, who, vide his report dated 4th/5th April, 2005 opined that the same was adulterated and did not comply with the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955. The original complainant filed an application dated 2nd August, 2008 requesting the learned Magistrate to issue summons under section 20-A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') against the applicants herein. The learned Magistrate took cognizance of the complaint and passed an order dated 2nd August, 2008 directing issuance of summons against the applicants herein.

(3.) Mr. P.M. Thakkar, Senior Advocate for the applicants submitted that on a bare reading of the application dated 2nd August, 2008 submitted by the second respondent, it is evident that the same is an abuse of the process of law and that the impugned order dated 2nd August, 2008 passed by the learned Magistrate is erroneous and against the provisions of law. It was further submitted that the application dated 2nd August, 2008 had been submitted by the second respondent at a premature stage inasmuch as the stage for filing such an application would come only after commencement of trial. Referring to the provisions of section 20-A of the Act, it was submitted that under the said provision, the legislature has given powers to the Magistrate to implead accused persons in a prosecution but the same has certain pre-conditions inherent in the section which are required to be satisfied. The preconditions are: (i) the trial must commence for the said offence; (ii) the trial must commence for an offence under the Prevention of Food Adulteration Act; and (iii) there must have been evidence adduced before the court during the trial that such manufacturer, distributor or dealer is concerned with the offence with which the person proceeded against in the trial was charged and (iv) the court must be satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is concerned with this offence. It was contended that the above three pre-conditions must be fulfilled before process is issued under section 20-A of the Act, whereas in the instant case, the learned Magistrate has failed to appreciate the scheme of section 20-A of the Act and notice that none of the pre-conditions for issuance of summons thereunder have been met with. Under the circumstances, the impugned order dated 2nd August, 2008 deserves to be quashed and set aside on this ground alone. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Omparkash Shivprakash v. K.I. Kuriakose and Others, 1999 8 SCC 633.