Govindarajan vs The Food Inspector (Municipal Sanitary Inspector) Palni

Ratnavel Pandian, J.—One Govindarajan, now ordered by the learned Sub Divisional Judicial Magistrate, Dindigul, to be impleaded as the

third accused in C.C. 994 of 1979 on his file, has directed this petition under S. 482, Crl. P.C. for quashing the proceedings as against him in the

said case pursuant to the order, dated 7th December, 1979 passed by the learned Magistrate under S. 319 (1), Crl. P.C.

The brief history of the case which led to this petition can be stated thus: Initially the respondent-complainant filed a complaint against the first

accused, viz., one Venkataraman, for a offence under Ss. 7 (1) and 16 (1) (a) (i) read with S. 2 (ia), Cls. (a) and (m) of the Prevention of Food

Adulteration Act (Act 37 of 1954), as amended up-to-date (hereinafter referred to as the Act), on the allegation that the said Venkataraman, was

found to be in possession of ten bundles of adulterated tea dust packets, weighing about 2,300 kilograms, for the purpose of sale, and that he

offered the same for sale to the Food Inspector for the purpose of analysis and sold 690 grams (three bundles) to the Food Inspector for a cash

consideration of Rs. 11-40; and that the sample, on analysis, was found to contain about 20 per cent of extraneous matter other than tea and ash

insoluble in HCL and in excess over the maximum permissible limit by 100 per cent. It is seen that the Court, subsequently, by its order in Crl.

M.P. No. 2329 of 1979, dt. 7th May, 1979, on a memo filed by the prosecution under S. 20A of the Act ordered one Ranganathan to be

impleaded as the second accused as he is said to have been conducting one Double Rose Tea Company at Udutnalpet and had sold adulterated

tea dust packets in bundle form to the first accused Venkataraman at Palni. It is seen that two witnesses, viz, the Food Inspector and another,

were examined as P.Ws. 1 and 2 and Exs. PI to P9 were marked on the side of the complainant. Both the accused examined the petitioner herein

as D.W.I and filed Exs. Dl to D5. After recording the evidence of D.W.I and marking the documents on the side of the defence, the learned

Magistrate has passed the impugned order directing the petitioner to be impleaded as the third accused along with accused 1 and 2 and further

directed that copies of the said order to be served on accused 1 and 2 and the learned Assistant Public Prosecutor before the trial Court and the

petitioner herein. It is only at this stage, the petitioner, who claims to have not received any copy of the impugned order or any summons from the

Court, has filed this petition.

Mr. Haji P.K. Jamal Mohamed, appearing on behalf of the petitioner, submitted that the proceedings taken against the petitioner cannot be

sustained, for the following reasons: -

(1) The impugned proceedings in this case have been taken after the conclusion of the trial and therefore, the impugned order passed under S. 319

(1), Crl. P.C. is one passed without jurisdiction and hence it cannot be sustained as the said section contemplates that the proceedings could be

taken only ""in the course of any enquiry into, or trial of, an offence.

(2) When the Act provides a specific provision, viz,, S. 20A, which empowers the Course to implead a manufacturer, distributor or dealer of any

article of food on the Court being satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with

that offence, notwithstanding anything contained in Sub-s.(1) of S. 319 of the Crl. P.C, 1973, or in S. 20 the Act. the Magistrate ought to have

exercised the powers under S. 20A and not under S. 319(1), Crl. P.C. According to him, the special provision, viz., S. 20A of the Act, excludes

the operation of S. 319 (1), Crl. P.C.

(3) There is no sufficient evidence in this case, warranting the impleading of the petitioner herein as an accused along with accused 1 and 2.

Now, I shall take up the above submission one by one. Before adverting to the submissions made by the learned counsel, I would like to

mention here that Sub-Ss. (1), (2) and (4) (b) of S. 319 of the new Code are new provisions, whist Sub-s.(3) of S. 3I9 of the new Code

corresponds to Sub-s.(l) of S. 351 of the old Code, and the present Sub-s.(4) (a) of S. 319 corresponds to Sub-s.(2) of S. 251 of the old Code,

but with a difference that the opening words of Sub-s.(4) have been newly introduced. The condition precedent for the application of S. 319 (1) is

that the proceedings should be taken against a person for an offence which he appears to have committed ""in the course of any inquiry into, or trial

of, an offence provided it appears from the evidence that the person proposed to be impleaded has committed any offence for which such person

could be tried together with the other accused"". Admittedly, in the present case, the trial had commenced and the witnesses have been examined

on both sides. The crucial question is whether on the examination of D.W. 1 the trial had finally come to an end and thus concluded. If the trial had

finally concluded, then this section cannot be availed of by the court to implead the petitioner herein to take trial along with accused 1 and 2.

Therefore, we have to see the exact meaning of the words ""in the course of the trial.

The meaning of the word ''trial"" was considered by the Supreme Court in The State of Bihar Vs. Ram Naresh Pandey, . In that case, their

Lordships of the Supreme Court have stared thus :

The word ''trial'' is not defined in the Code. ''Trial'' according to Stroud''s Judicial Dictionary means ''''the conclusion, by a competent tribunal, of

questions in issue in legal proceedings, whether civil or criminal"" (Stroud''s Judicial Dictionary, 3rd edn. Vol. 4, p.3092), and according to

Wharton''s Law Lexicon means the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the

land"" (Warton''s Law Lexicon, 14th edn., p.1011). The words ''tried'' and ''trial* appear to have no fixed for universal meaning. No doubt, in quite

a number of sections in the Code to which our attention had beeta drawn the words ''tried'' and ''trial'' have been used in the sense of reference to

a stage after the inquiry. That meaning attaches to the words in these sections having regard to the context in which they are used. There is no

reason why where these words are used in another context in the Code, they should necessarily be limited in their consolation and significance.

They, are words which must be considered with regard to the particular context in which the scheme and purpose of the provision is under

consideration.

A Full Bench of the Kerala High Court in Fodd Inspector Vs. Seetharam Rice and Oil Mils and Others, has held that the term during the trial of

any offence"" occurring in S. 20A of the Act, would mean at any stage after the commencement of the trial and before the conclusion of the trial by

convicting or acquitting the accused concerned and not thereafter.

The Supreme Court in Municipal Corporation of Delhi Vs. R. Sahai and Others, while examining the scope of S. 20A of the Act, has pointed

out that S. 20A of the Act clearly contemplates the contingency where the discretionary jurisdiction under the Act can be exercised only during the

trial of any offence, that is to say, the stage at which the Magistrate can exercise his jurisdiction under this Act must be before the trial has

concluded and ended in the acquittal or the conviction.

It is unnecessary for me to refer to all the decisions cited at the Bar on this point, as it is very clear from the decisions of the Supreme Court

referred to above, that the trial of a case legally will cease (sic) when the proceedings come to an end by the conviction or acquittal, as the case

may be, of the accused, and till then the proceedings are in the course of the trial. Because the defence witness has been examined and certain

documents have been marked on the side of the defence, it cannot be contended that the trial has come to an end and therefore, the Magistrate has

no jurisdiction to act under S. 319 (1) of the Code. If such an interpretation has to be given, as contended by the petitioner''s counsel, then it

would defeat the very purpose and object of S. 319, Crl. P.C. Admittedly, in this case the case has not ended either in the acquittal or in the

conviction of the accused, and therefore I am of the view that there is no merit in the first contention raised by the learned counsel.

Now, I shall pass on to the second contention, viz., that in view of the provisions under S. 20A of the Act, while dealing with an offence under

the Act, the general law under S. 319, Crl. P.C. could not be invoked. The above section was newly added by S. 12 of the Prevention of Food

Adulteration (Amendment) Act 49 of 1964, which introduction was made with reference to the Report of the Joint Committee on the abovesaid

amendment bill, so as to enable the court to see that a manufacturer, distributor or dealer with respect to an article of food, with reference to which

a prosecution has been launched against the vendor, should not go scot-free. S. 20A, as it stood in 1964, read as follows:

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, notwithstanding anything contained in Sub-s.(l) of S. 351 of the Code of Criminal

Procedure, 1898, or in S. 20, proceed against him as though a prosecution had been instituted against him under S. 20.

This section, pursuant to the enactment of the new Criminal Procedure Code, was modified by S. 17 of the amendment Act 34 of 1976 with effect

from 20th March, 1976, by substituting the words ""Sub-s.(3) of S. 319 of the Crl. P.C, 1973 (2 of 1974)"" for the words ""Sub-s.(l) of S. 3D1 of

the Crl. P.C. 1898 (Act5 of 1898)"". S. 319 of the new Code deals with the power of the Court to proceed against other persons appearing to be

guilty of an offence. Sub-s.(3) of this section, corresponding to Sub-s.(l) of S. 351 of the old Code, provides that any person attending the Court,

although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence he appears

to have committed. S 20A, as pointed out by a Full Bench of the Delhi High Court in Municipal Corporation of Delhi and another v. Laxminarain

and Another ILR 1970 Del 771 : 1973 (1) Cri. L.J. 690. (F.B.) is in the nature of an exception to S. 351(l) of the old Code and the manufacturer,

distributor or dealer can, under the provision of S. 20A of the Act, be impleaded even though they are not present in Court, and it is, however,

clear from the language of S. 20A that this provision can be invoked only during the trial of the vendor and cannot be invoked after the trial of the

vendor has concluded either by his discharge or acquittal. A reading of S. 20A of the Act would clearly show that it does not bar the application of

S. 319, Crl. P.C. There is no nan-obstante clause in S. 20A indicating the intention of the Legislature to exclude the operation of the general

provision under S. 319 of the Crl. P.C.

The Act is a special enactment, which prescribes no procedure for the trial of offences under the Act and hence, offences committed under the

Act have to be tried according to the provisions of the Crl. P.C. subject, of course, to certain provisions of the Act. As pointed out by the

Supreme Court in Bhagwan Das Jagdish Chander Vs. Delhi Administration, these special provisions do not take away or derogate from the effect

of the ordinary provisions of the law The Kerala High Court in F.A. Mathew v. Food Inspector 1978 M.L.J. Cri. 352. (F.B.-Kerala) has

observed : that ''''there is nothing in either S. 319, Crl. P.C. or S. 20A of the Act, which restricts the power"" of the court to implead a person as an

accused during the course of a trial, if the evidence adduced warrants such an impleading. No doubt, when once the court decides to implead a

person as an accused under S. 3ly (1), then the proceedings in respect of such a person shall be commenced afresh and the witnesses re-heard as

contemplated under sub-Cl (4) of S. 319; vide: Delhi Municipality v. Y.K. Kapoor 1981 Cri. LJ. 223. Reliance was placed by the learned counsel

on Municipal Corporation of Delhi v. Laxminarain for contending that only S. 20-A of the Act has to be invoked and not S. 319, Crl. P.C. A close

reading of the judgment does not show that S. 319, Crl. P.C. has been held to be a bar in view of S. 20 A of the Act.

Thus, it is seen that it is, of course, desirable for a court to invoke S. 20-A of the Act, if it wants to implead a manufacturer, distributor or

dealer during the trial of a case, proceeded against a vendor. The application of S. 319, Crl. P.C. is not however, excluded or barred. Therefore,

the impugned order is not in any way vitiated on this ground.

As regards the third contention that the evidence adduced does not warrant the impleading of the petitioner as an accused, I do not want to go

deep into the merits of the ''case and express any opinion as to whether there is sufficient evidence or not against the petitioner as such an opinion

may be prejudicial to either of the parties. Learned counsel, in support of his contention relied upon the decision in Desa Singh Vs. State of H.P.

and Another, . As pointed out in the said decision, if there is no evidence at all worth the same, to connect the petitioner with the commission of the

offence the Magistrate has no jurisdiction to implead and proceed against the petitioner. But, in the present case, on a perusal of the entire

evidence, I am of opinion that there is prima facie evidence in this case justifying the impugned order of the Magistrate impleading the petitioner

herein as an accused. Therefore the decision relied on by the learned counsel is of no avail.

For all the reasons stated above, I hold that there is no illegality committed by the learned Magistrate in passing the impugned order, calling for

an interference by this Court under S. 482, Crl. P.C. Accordingly, this petition will stand dismissed.

While dismissing this petition, I, on the request of the learned counsel for the petitioner, direct that this case now pending in C.C. 994 of 1979

on the file of the Sub Divisional Judicial Magistrate, Dindigul, be transferred to the file of the Chief Judicial Magistrate, Madurai, who, on receipt of

the papers, shall expedite the hearing of the case and dispose of the same according to law.