Attar Singh Sethi vs Union Territory, Chandigarh

S.S. Dewan, J.

This order will dispose of two Criminal Misc. petitions No. 2550M and 2962M of 1985, having arisen out of a complaint dated March 25, 1983 in which the petitioners had been summoned as coaccused by the trial Court for April 13, 1984.

On January 25, 1983, O.P. Gautam, Food Inspector, visited the shop of Anis Ahmed, SCF No. 198, Sector 7, Chandigarh, where the letter is running a Bakery. The Food Inspector purchased 600 grams of maida from him as a sample and on being analysed, it was found to be adulterated. The learned Judicial Magistrate Ist Class, Chandigarh, took cognizance upon the said complaint on the same day and issued process against Anis Ahmad. In obedience to the summons, Anis Ahmad entered appearance on April 12, 1983, and subsequently filed an application under Section 20A of the Prevention of Food Adulteration Act (for short, the Act) praying that Attar Singh Sethi, proprietor of M/s. Amrit Roller and Flour Mills, Chandigarh and Labh Singh be implicated as coaccused. In support of this application, Anis Ahmed placed on record a bill dated 25.1.1983, allegedly issued by Labh Singh, Sales Manager of the Mani Majra Cooperative Marketing and Processing Society, Grain Market, Chandigarh (for short, the Society) and also examined Abdul Raulif and Labh Singh, After hearing the parties, before him, the learned Magistrate passed the impugned order dated March, 9 1984. The petitioners, therefore, seek to invoke the inherent and revisional jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashing the order passed by the learned Magistrate on March 9, 1984.

After going through the record and hearing the learned counsel for the parties, I am of the firm view that the order passed by the learned magistrate, dated March 9, 1984, is bad in law and cannot be sustained. This order appears to have been passed by the learned magistrate without applying his legal mind to the facts of the case and the provisions of the relevant law. The order purports to have been passed under Section 20A of the Act. This provision reads :

"20A. Power of Court to implead manufacturer, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, not withstanding anything contained in subsection (3) of Section 319 of the Code of Criminal procedure, 1973 (2 of 1974) or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20."

A bare reading of the above provision would show that before the power vested in the Court under this section can be invoked : (1) there must be pending before the Court a trial of an offence under the Act alleged to have been committed by any person other than the manufacturer, distributor or dealer of any food article; (ii) there must have been adduced some evidence in the course of such trial to show that the manufacturer, distributor or dealer of the food article in question is concerned with the offence alleged to have been committed by the person proceeded against in the trial and (iii) the Court on the basis of the evidence produced before it is prima facie satisfied that such manufacturer, distributor or dealer is concerned with such offence.

Now on a perusal of the record in this case I find that there is absolutely no material before the Magistrate from which he could have satisfied himself if the petitioners were in any manner connected with the offence for which complaint had been filed by the Food Inspector. Even in the application moved by Anis Ahmed accused, on the basis of which the impugned order was passed does not suggest that maida, out of which sample was purchased by the Food Inspector, was purchased by Anis Ahmad accused from the petitioner. The receipt dated January 25, 1984, copy annexure Ex. P2, allegedly issued by the Society shows that 2 bags of maida were purchased by Novelty Bakery, Sector 7, Chandigarh, for Rs. 441/. Abdul Raulif, AW 1, has no doubt stated that the Maida had been manufactured by M/s Amrit Roller and Flour Mills Chandigarh, which had been inscribed on the bag but no such bag was produced before the trial Court. Labh Singh, AW 2, who allegedly sold the maida to Anis Ahmad accused on behalf of the Society has stated in his examinationinchief that the accused took delivery of maida direct from M/s. Amrit Roller and Flour Mills but in his crossexamination this witness pleaded ignorance as to whether the maida was delivered to the accused at the store of the Society or it was arranged from the said Amrit flour Mill through his salesman. From this evidence it cannot be inferred if the maida in question was manufactured by M/s Amrit Roller and Flour Mills, Chandigarh. In these circumstances, the learned Magistrate was certainly not competent to direct the issue of process against the petitioners against whom there was no material on the record to show if they were concerned with the offence, in any manner, for which the complaint had been lodged by the Food Inspector.

There is authority for the proposition that a retail dealer in the first instance has to set up a defence of warranty that he purchased the article of food from another and sold it to the Food Inspector in the condition in which he had purchased it. Now here in the present case no such warranty was putforth by the accused at the time when the Food Inspector purchased the article of food in the process of sampling. In the situation it cannot be assumed that the article of food was manufactured by the petitioner''s flour mill. This obviously is a matter of evidence when examined by the Magistrate during the trial, which could give an occasion to the Court to emply the provisions of Section 20A of the Act. For this reason also, the petitioner''s being impleaded as coaccused for the present does not arise. Accordingly, the order summoning the petitioner''s being impleaded as coaccused has thus to be quashed, letting the proceedings to continue against Anis Ahmad accused. Thus both the petitions are allowed.

I would, however, like to made it clear that if during the trial further material is brought on the record connecting the petitioner and Labh Singh with the offence for which they are now sought to be summoned, the learned Magistrate will be at liberty to invoke the provisions of Section 20A of the Act.