RUPINDER SINGH Vs. STATE OF H. P.

JUDGEMENT

(1.) Being aggrieved and dissatisfied with order dated 14.3.2012, (Annexure PD), passed by the learned Chief Judicial Magistrate, Shimla in case No. 86/3 of 11/02 /103-3 of 11/02, whereby petitioner, who happens to be proprietor of M/s Azad Enterprises, Bypass Road Solan, District Solan, has been ordered to be arrayed as one of the accused in Case No. 106/3 of 11/02 filed by Food Inspector, Shimla, under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter, 'Act'), petitioner has approached this Court in the instant criminal revision petition filed under Section 397 and 401 of Cr.P.C. Perusal of the complaint filed through Food Inspector, Shimla (Annexure P-1), reveals that on 29.05.2020, Sh. L.D. Thakur, Food Inspector, drew sample of mineral water from 24 sealed bottles of one litre each, manufactured by Himalayan Natural Mineral Water, Dhaula Kuan at District Sirmaour, from the shop of respondents No.2 & 3. Since, bottles taken for sample had no certification mark of Bureau of Indian Standards, Food Inspector proceeded to lodge complaint under Section 16(1) (a)(i) of the Act in the competent court of law against respondents Nos, 2 to 3. Respondents No.2 & 3, specifically stated before Food Inspector that all the 24 bottles taken for sample were purchased from respondent No.4,i.e. Proprietor of M/s Universal Agencies, 150/1, Anaj Mandi, Shimla, and as such, respondent 4 also came to be arrayed as an accused along with respondents No. 2 & 3. Record reveals that during the pendency of the aforesaid complaint, respondent No.4 filed an application under Section 20(a) of Prevention of Food Adulteration Act, of seeking impleadment of M/s Himalayan Natural Mineral Water, Mount Everest Mineral Water Ltd., Dhaula Kuan, Paonta Sahib, District Sirmaur, Himachal Pradesh, which came to be registered as CMA No. 110-4 of 2007. In the aforesaid application, applicant/respondent No.4 averred that since the bottles allegedly found at the shop of respondents No. 2 & 3, were manufactured by aforesaid company, it also needs to be arrayed as an accused along with other accused. In support of aforesaid application, applicant/respondent No.4, made a statement before Court on oath dated 5.7.2005 ( Annexure P-3) specifically stating therein that bottles of mineral water, as recovered from the premises of respondents No. 2 & 3 were purchased by him from M/s Himalayan Natural Mineral Water, who is manufacturer of bottled mineral water. He also placed on record certified copy of Form-6 (c) which came to be exhibited as Ext. A-X, as well as receipt Ext. AY to demonstrate that all the bottles of mineral water allegedly taken for sample were purchased by him from the M/s Himalayan Natural Mineral Water. In his crossexamination, he fairly admitted that he has not produced bill of purchase, if any, made by him from M/s Himalayan Natural Mineral Water. Learned Court below having taken note of the averments contained in the application as well as statement made in support of the application, dismissed the application vide order dated 5.7.2007, Annexure P-5/A. Careful perusal of the aforesaid order reveals that since the applicant/respondent No.4 Amit Sood was unable to place on record bills qua the purchase, if any, made by him from the proposed respondent accused, Court dismissed the application. Documents produced by him, i.e. Exts. XP, PY & PZ, were not found to have any connection with the manufacturer and as such, there appears to be no illegality, if any, committed by court below while rejecting the aforesaid prayer made on behalf of applicant/respondent No.4. Interestingly, after 4 years of dismissal of the aforesaid application, applicant/respondent No.4, again in the year 2011, filed fresh application under Section 20 (a) of the Act (Annexure P-6) praying therein for impleadment of petitioner, i.e. Azad Enterprises, Solan as an accused. In the aforesaid application, applicant/petitioner took a summersault, averring in the application that though the manufacturer of alleged mineral water bottles is M/s Himalayan, but he had purchased the mineral water bottles from Azad Enterprises Bypass, Solan. In support of averments contained in the application, as referred above, respondent-complainant No.4, Amit Sood also gave his statement on oath (Annexure P-4) and also placed on record one bill allegedly issued in his favour by petitioner M/s Azad Enterprises, Solan. Petitioner in his statement Annexure P-4, stated that he has a Godown in the name of M/s Agency Shogi and on 9th April, 2001, he had purchased bottles of mineral water from Azad Enterprises Bypass Solan vide a bill Ext. AW1/A. On the basis of aforesaid statement as well as averments made in the application, court below vide impugned order dated 14.3.2012 Annexure P-5/B allowed the application and arrayed present petitioner, who happens to be proprietor of M/s Azad Enterprises, Solan as an accused. In the aforesaid background, petitioner has approached this Court in the instant proceedings filed under Sections 397 and 401 of Cr.P.C, praying therein to set aside the aforesaid impugned order dated 14.3.2012 passed by learned Chief Judicial Magistrate, Shimla in case No. 106/1 of11/02.

(2.) Learned counsel for respondent No.4, states that the petitioner has nowhere stated even a single line in the petition as to what is his connection with the manufacturer. Neither he denied in the petition that he was not the dealer of the manufacturer of the product nor he has denied that he had supplied bottles to respondent No.4. Learned counsel for respondent No.4 states that his client was supplied mineral water bottle by the petitioner. Learned counsel for respondent No.4 while drawing attention of this Court to pages 94 onwards of the evidence part states that the respondent No.4/complainant, in his cross-examination by accused Nos. 1 and 2 stated that mark B was not in his knowledge. Mark B is the exemption from certification of Bureau of Indian Standards, for those applicants, who had applied for licence. The relevant lines of mark B in the introductory para itself say "further the Ministry of Health and Family Welfare has decided that in order to facilitate the process of grant of licence, the product of companies, whose applications have been recorded before 29 March, 2001 may be permitted in the market, "without the required certification from BIS" till 30.6.2001. It has also been stated that BIS should take the decision by that date either to grant the licence or close the applications." Learned counsel for respondent No.4 further submits that his plea to connect the petitioner with the sale of mineral water to the respondent No.4 was not new one as is being projected by the petitioner. If the statement of the complainant, which was recorded on 1.9.2004, is seen, it will be crystal clear that as far back as in the year 1994, respondent No.4 has put a suggestion to the complainant in the last line of page 97 on which the complainant has replied to the suggestion put by respondent No.4 to the complainant that lot of bottles by accused No.3 was purchased from Azad Enterprises Solan(present petitioner). Learned counsel for respondent No.4 further argued that he has successfully proved that the manufacture of mineral water bottle is Himalayan Natural Mineral Water. It is not the case of respondent No.4 that he purchased mineral water bottles from manufacture. Learned counsel for the respondent No.4 further stated that in view of Mark B and statement of the complainant that he is not aware of mark B, application to implead manufacture was moved to clarify as to what is the stand of the manufacturer in view of mark B. Learned counsel for the respondent No.4 further argued that the only stand of petitioner is that in the bill, Himalayan Natural Mineral Water is not mentioned, but he nowhere states that he is not connected with the manufacture in any way

(3.) Having heard learned counsel representing the parties and perused the material available on record, this Court finds that applicant/respondent No.4, during the pendency of case under the Act, twice moved applications for impleadment for manufacturer of the mineral water as well as supplier of the mineral water. In first application, Annexure P-2, which was filed in the year 2007, applicant/respondent categorically stated before court below by way of application filed under Order 20(a) of the Act as well as while making an oral statement on oath that he had purchased bottles of mineral water allegedly recovered from the shop of respondents No. 2 & 3 from M/s Himalayan Natural Mineral Water Dhaula Kuan, but since, he was unable to produce bill, if any, given to him by the aforesaid manufacturer, his application, as referred to above, was rejected vide order dated 5.10.2007, Annexure P-5/A. Interestingly, after four years of passing of aforesaid order, respondent /accused No.4, filed fresh application under Section 20(a), praying therein for impleadment for present petitioner M/s Azad Enterprises as an accused on the ground that bottles of mineral water allegedly recovered from the premises of respondents No. 2 & 3, were purchased by him from M/s Azad Enterprises bypass road, Solan. In the aforesaid application, respondent No.4, took altogether contradictory stand stating that he had purchased bottle of mineral water manufactured by Himalayan from Azad Enterprises Bypass Road, Solan. In support of aforesaid claim, respondent while deposing on oath before Court also produced one bill Ext.AW-1/A to demonstrate that for sum of Rs. 85,200/- he had purchased 710 cases of mineral water. Careful perusal of aforesaid bill though suggests that on 9.4.2001, petitioner M/s Azad Enterprises had sold 710 cases of mineral water to M/s Universal Agency Shoghi for a sum of Rs. 85, 200/-, but there is nothing to infer that cases of miner water sold by M/s Azad Enterprises were manufactured by M/s Himalayan, rather there is no mention, if any, of the make of the bottles allegedly sold by M/s Azad Enterprises to Universal Agency, Shoghi and as such, there was no occasion for court below to conclude on the basis of subsequent application filed by respondent No.4 under Section 20 (a) of the Act as well as bill annexed therewith that bottles allegedly taken for sample from the premises of respondents No. 2 & 3, were sold to respondent No.4 by petitioner M/s Azad Enterprises. Otherwise also, it is not understood that how court below could permit respondent No.4 to file second application for impleadment, especially when, in earlier application, respondent No.4 had taken specific plea that he had purchased bottle of mineral water from M/s Himalayan Natural Mineral Water. Aforesaid application was rejected by court below vide order dated 5.7.2007 Annexure P-5/A on the ground that since applicant/respondent is not able to produce any bill qua the purchase, if any made by him from Himalayan, Natural Mineral Water, his prayer for impleadment of aforesaid company/accused, cannot be accepted. If the earlier application filed by respondent No.4 is perused in its entirety coupled with the statement made on oath before court, he nowhere mentioned the name of petitioner M/s Azad Enterprises, rather he very categorically averred in the application as also deposed in the Court on oath that the bottles of mineral water were purchased by him from M/s Himalayan Natural Mineral Water.