KESHAVJI RAISEE Vs. V M PATIL

JUDGEMENT

(1.) A sample of groundnut oil purchased by the Food Inspector, Mr. Patil. from the Janata General Stores, Vikhroli, Bombay, having been found to be adulterated, the original accused No. 1 Naik in whose name the licence of the shop stood and accused No, 2, respondent No. 2, Sunderji Meghji Shah, are being tried for having committed an offence punishable under Section 16 (1) (a) (i) read with Section 7 (i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the 'act' in the Court of the Metropolitan Magistrate. 34th Court, Vikhroli, Bombay. Accused No. 1, however, is absconding and the trial is being proceeded with only against accused No. 2.

(2.) THE Food Inspector was examined before the charge on 5th March 1976. He was cross-examined after the charge on 19th April 1976. During the course of the cress-examination, a cash-memo, Ex. 1. was put to the Food Inspector. The Food Inspector deposed that; the wholesalers mentioned in the cash-memo, i. e. M/s. Mukesh Oil Depot, was also being prosecuted for having sold adulterated groundnut oil, the sample of which was independently taken by the Food Inspector. We are now informed that the Proprietor of the Mukesh Oil Depot, i. e. , the present petitioner, has been discharged in those proceedings, because no adulteration was found in the course of analysis, made by the Central Food Laboratory, Calcutta, In cross-examination, the Food Inspector was definitely asked whether Ex. 1 which is the cash-memo was shown to him by the accused No. 2, and he positively stated that Ex. No, 1 was not at all shown to him by the accused. There is some dispute about the date which is written on Ex. 1. Admittedly, there is some over-writing so far as the number of the month is concerned, as is clear from the evidence of the Food Inspector himself; because though at one stage he has referred to this bill as dated 23-7-1975, at a later stage of the proceedings, he has referred to this bill as bearing the date 23-4-1975. The Food Inspector further deposed that the accused had told him that the cash-memo in respect of the groundnut oil, a sample from which was purchased by him, was missing and could not be traced. However, he further made a statement that the accused had told him that he had purchased the groundnut oil in question from Messrs. Mukesh Oil Depot by a cash-memo dated 23-71975. He, however, was not able to say whether Ex. 1 was the cash-memo in respect of the said oil. Ex. 1 has a warranty put on it by a rubber stamp as contemplated by Rule 12-A of the Prevention of Food Adulteration Rules, hereinafter referred to as the 'rules', in Form VI-A.

(3.) AFTER the cross-examination of the Food Inspector, the accused No. 2 filed an application stating that the partners of M/s. Mukesh Oil Depot should be joined as co-accused along with him. Now surprisingly in the application the cash-memo, Ex. No. 1, is referred to as dated 23-8-1975. In the application it is stated that according to the provisions of Section 20-A of the Act, the supplier, i. e. , the present petitioner should be impleaded. The prosecution left the matter to the court. The trying Magistrate, however, read the evidence of the Food Inspector to indicate that the groundnut oil in question was purchased by the accused from Messrs. Mukesh Oil Depot and that the cash-memo, Ex. 1, contained the condition of warranty given by the Proprietor, Mukesh Oil Depot. Therefore, it became necessary according to the trial court to implead the wholesaler, viz. , the present petitioner as co-accused. An order was. therefore, made directing that the petitioner shall be impleaded as accused No, 3 and summons shall be sent to him and the case was to proceed after the newly added accused appeared. This order of the trial court discloses that the joinder of the present petitioner was consequential upon the accused No, 2 trying to invoke the statutory defence which was available to him under Section 19 (2) of the Act.