NATHU LAL Vs. STATE

JUDGEMENT

(1.) THIS revision petition is preferred against the order dated 3rd Apr. , '89, by which, the ACJM No. 2 Kota, has ordered to implead the petitioner as an accused in the case, u/s. 20-A of the prevention of Food Adulteration Act, 1954 (for short, "the Act" ).

(2.) THIS case has its own chequered history'. The incident relates to the year 1972, and the case is still pending in the court of ACJM No. 2, Kota. Om Prakash Pal, the then Food Inspector, purchased some sample of Til oil on 2nd July, '72, from the shop of Mohanlal, where, Kaushal was the salesaman. The said sample was then sent for analysis, which on examination, was found to be adulterated. After obtaining sanction, a complaint was lodged against Mohanial and Kaushal Kumar u/s. 7/16 of the Act, in the year 1972. The trial of the case started, and on 26th June, '76, Mohanial moved an application u/s. 20-A of the Act disclosing that the tin from which the sample was taken on 2rd July, '72, was purchased by him duly sealed, from M/s. Sunderlal-Hansraj of Kota. He also submitted a bill for the purchase of the said oil tin, dated 26th June, '72. The trial court granted that application; and , Hansraj being the Proprietor of firm M/s. Sunderlal-Hansfaj, was impleaded as an accused in the case. Thus, again the trial started on 10th Nov. '77, Hansraj moved another application u/s. 20-A of the Act, wherein, he took alternative pleas. His first contention was that the sample purchased on 2nd July, '72, by the Food Inspector, from the shop of Mohanlal, was not taken from the very tin of oil, which was sold by him to Mohanial. His second plea was that he had purchased the tin from the shop of M/s. Shivnath-Motilal in which firm, Nathu-Lal was a partner. The trial court, after hearing on the application allowed the application by order dated 12th Mar. ,'84, impleading firm Shivnath Motilal through Nathulal partner as an accused. That order was challenged by Nathu Lal, the petitioner, before the Sessions Judge Kota and the learned Sessions Judge, accepting his contention, set aside the order of the learned ACJM dated 12th Mar, '84. The trial of the case then started The prosecution examined all its witnesses and closed the evidence. The accused persons also gave statements u/s. 313, Cr. P. C. and entered into defence. Petitioner Nathu Lal and Muneem Mohanial were examined as defence-witnesses. By that time, the firm. M/s. Shivnath-Motilal had already dissolved. After recording statement of Nathu lal as a partner of the dissolved firm Shivnath-Motilal the APP moved another application on 12th Dec. '88, requesting the court to implead Nathulal as an accused in the case. The reason was that Nathulal had admitted in his statment he had sold 20 tins of Til oil to Hansraj; and on the basis of this statement, the APP moved the application for impleading him as an accused. The learned Magistate vide impugned order dated 3rd Apr. , '88, impleaded petitioner Nathulal as an accused in the case. That order of the Magistrate has been challenged in this petition.

(3.) IN the present case according to Mohanlal, Hansraj was the dealer in Til oil and he had sold it to him. So, Nathulal who was the manufacturer, had not sold the Til oil to vendor Mohanlal, that is to say that Nathulal did not give any warranty in writing to Mohanlal. Similarly, the distributor did not sell the oil, so, he was not required to give any warranty. The dealer Hansraj had sold it to Mohanlal; so, Hansraj was to issue that warranty.-- The said warranty should have been taken on record by the prosecution in order to show as to which tin was sold by dealer Hansraj to Mohanlal. Whether the tin from which the sample was taken by the Food INspector was that very tin for which the warranty was given by Hansraj, to this effect, there is no proof on the record. This is also a lacuna in the prosecution case. If they want to connect Nathulal, the manufacturer with this crime, they must have connected him with the sample showing that this was the sample taken from that very tin which was sold to him by Hansraj, who had purchased it from the manufacturer, M/s. Shivnath-Motilal. There is nothing on the record to this effect. So, on this aspect also, the order of the learned ACJM is a bad one.