ITC LTD. Vs. STATE OF H.P.

JUDGEMENT

(1.) THE petitioner has challenged the order dated 14th December, 2009 passed by the learned Chief Judicial Magistrate, Nahan impleading it as one of the accused in petition pending before the Court.

(2.) THIS case has a chequered history and unfortunately it has shuttled from Court to Court. It is undisputed before me that prior to the institution of the present petition, Cr. MMO No. 147 of 2008 was filed by the petitioner herein challenging the order imp -leading the petitioner herein as one of the accused, under Section 20 -A of the Prevention of Food Adulteration Act (hereinafter referred to as the Act).

(3.) ADVERTING to the order dated 6.11.2006 this Court in its order extracted the findings of the trial Court: 06.11.2006: Present: None for the Food Inspector. Accused with counsel Shri M.K. Jain, Adv. An application for exemption of complainant Food Inspector, received which is allowed for the reasons stated in the application. 2. I have already heard the Food Inspector and the counsel for the accused and have perused the application under Section 20 -A of the P.F.A. Act, for impleading the manufacturer M/S I.T.C. Ltd., WSP, Parwanoo, Plot No. 25, Sector 1, Industrial Area, Parwanoo and the invoice attached with the application. 3. From the perusal of the material on the file, I am satisfied that M/s I.T.C. Limited, WSP, Plot No. 25, Sector 1, Industrial Area, Parwanoo, being manufacturer is also concerned with the offence punishable under Section 16(1)(a)(i) readwith Section 7(i) of the P.F. A. Act and he is thusliable to be impleaded as co -accused in this complaint. Accordingly, accused M/s I.T.C. Limited, WSP, Sector -1, Plot No. 25, Industrial Area, Parwanoo through its proprietor is hereby impleaded as co -accused under Section 16(1)(a)(i) read with Section 7(i) of the said Act being manufacturer and, accordingly, the accused be summoned for facing the trial of aforesaid offence before this court for 8.12.2006. Sd/ -(R.K. Sharma) Chief Judicial Magistrate, Announced Sirmaur Distt. at Nahan, H.P. It is well settled that in order to implead manufacturer, distributor or dealer, such evidence should be adduced as to connect them with the commission of such offence for which a person is being tried. If such evidence is bill or cash memo or warranty, it should be brought on record in accordance with law, which can only be done by the applicant by giving his statement on oath and also by producing some other evidence. An identical question came up for consideration before the Single Bench of this Court in Ram Krishan Yoginder Pal v. State of H.P. (1992) FAC 133)which was also relied upon by the Single Judge of this Court in case Krishan Kumar Jain v. State of H.P. and another Cr. Revision No., 44/93 decided on 20.5.96. In Ram Krishan Yoginder Pauls case supra, it was held that Section 20 -A is in the nature of an exception to the provision of Section 20. In this Section, a manufacturer, distributor or dealer of an article of food can be impleaded as accused by a Court if it is satisfied on some evidence recorded in the trial that the manufacturer, distributor or dealer is also concerned with the offence for which some person is being tried. As such, for invoking jurisdiction under section 20 -A of the Act, there should be trial of an offence under the Act pending before the Magistrate against a person other than the manufacturer, distributor or dealer of an article of food; there should be evidence adduced before the Magistrate during such trial and the Magistrate should be satisfied on such evidence that the manufactures, distributor or dealer is concenred with that offence. In order to imp -lead manufacturer, distributor or dealer, such evidence should be adduced as to connect them with the commission of such offence for which a person is being tried. If such evidence is bill or cash memo or warranty, it should be brought on record in accordance with law. It was also a case where the Food Inspector had conceded the application of respondent -accused No. 2 but it was held that the minimum requirement was that the respondent -accused No. 2 should have come forward and deposed about all this on oath. In the instant case significantly, when the sample was taken by the Food Inspector from respondent Sanjay Kumar, in Panchnama Ext.P3 against column No. 9, he disclosed the name of the manufacturers Biswas Food Private Limited, 515, Krishan Gali, Katra, Neel Chandani Chowk, Delhi -6 having Batch No. AA Packed on 6.7.2004. The brand of the ˜Atta was ˜Ashirwad kept in his stall for sale. There was not reference to the petitioner as manufacturer. Prima -facie the stand taken by respondent No. 4 is contradictory to the record. - This Court quashed the entire proceedings of impleading the petitioner herein as one of the accused holding that an inquiry has to be undertaken/conducted by the Magistrate under Section 20 -A of the Act in accordance with law before further action is taken and to ensure that there is primfacie evidence on record adduced before the Magistrate that the person impleaded is in fact involved in the commission of offence as alleged. The Court also noticed that when the sample was taken by the Food Inspector from Sanjay Kumar, in Panchnama Ext.P3 against column No. 9, he disclosed the name of manufacturer as Biswas Food Private Limited, 515, Krishan Gali, Katra, Neel Chandani Chowk, Delhi -6 having Batch No. AA Packed on 6.7.2004. In the circumstances the Court also concluded that stand taken by the accused was contradictory. The case was sent back for decision in accordance with law.