Crl.M.C No. 3759 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936** ## **Crl.MC.No. 3759 of 2012 () ---------------------------** **AGAINST THE ORDER IN CMP NO.1464/2012 IN ST 6/2008 of J.M.F.C.-II, HARIPAD DATED 4-6-12.** ## **PETITIONER(S)/ACCUSED NO.4:** **----------------------------------------------------** **M/S.THIRUPATHI TRADERS, GENERAL MERCHANTS AND COMMISSION AGENTS, 455, THAKADIPURAM BUILDING, K.K.ROAD, KUMALI, IDUKKI (DIS), KERALA, REPRESENTED BY ITS MANAGER, MR.T.VIJAY, DR.NO.64/11, KAMARAJAR LINE, THENI 625531.** **BY ADVS.SRI.S.RADHAKRISHNAN SRI.S.RAJMOHAN SMT.S.SARITHA.** ## **RESPONDENT(S)/ACCUSED NO.1 TO 3/COMPLAINANT:** **------------------------------------------------------------------------------** **1. S.NAZARUDHEEN, S/O.SHAMSUDHEEN, SALEENA MANZIL, ARATTUPUZHA NORTH, THRIKKUNNAPUZHA.** ## **2. V.D.LAIJU,** **KRISHNA VILASAM, PATHIRAPPALLI, ALAPUZHA.** ## **3. M/S.LAKSHMI NARAYANA TRADING COMPANY, CHERTHALA.** **4. C.S.RAJESWARI AMMA, THE FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, THIRUVANANTHAPURAM.** ## **5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 & R2 BY ADVS. SRI.T.MADHU SRI.B.K.RAJAGOPAL.** **R5 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3759 of 2012 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** |**ANNEXURE**|**1 **|**:**|**A TRUE COPY OF THE CERTIFIED COPY OF THE PETITION FILED**| |---|---|---|---| ||||**by the 2ND AND 3RD RESPONDENT DATED 22-8-2011 BEFORE**| ||||**THE JFCM II, HARIPAD.**| |**ANNEXURE**|**2 **|**:**|**THE CERTIFIED COPY OF THE ORDER PASSED BY THE JFCM II,**| ||||**HARIPAD IN CMP NO.1464/2012 IN S.T NO.6/2008.**| |**ANNEXURE**|**3 **|**:**|**A TRUE COPY OF THE CERTIFIED COPY OF THE PROCEEDINGS**| ||||**SHEET IN S.T NO.6/2008.**| ## **RESPONDENT'S ANNEXURES : NIL.** ## **//TRUE COPY//** **P.A TO JUDGE** **amk** **A.HARIPRASAD, J. -----------------------------------------------Crl.M.C No.3759 of 2012 -----------------------------------------------Dated this the 8[th] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. The order passed by the learned Magistrate II, Harippad on C.M.P No.1464/2012 in S.T No.6/2008, produced as Annexure 2, is under challenge. 2. Facts in brief; petitioner is sought to be impleaded as additional fourth accused under the provisions of Section 20A of the Prevention of Food Adulteration Act, 1954 ( in short 'the P.F.A Act'). S.T No.6/2008 was instituted at the instance of the fourth respondent herein, the Food Inspector. Allegation is that Moong Dhal purchased by her from the first accused was found to be adulterated. Second accused is the licencee of the third accused. Prosecution case is that Moong Dhal contained a synthetic food colour 'tartrazine'. The article was sent for analysis by a public analyst and on getting the report showing that the article was adulterated, the learned Magistrate took **Crl.M.C No.3759 of 2012 2** cognizance on the complaint under Section 2 (1a)(a)(j) and Section 7 & 16 (i)(A) & A.18/06/10 of Appendix B of the Prevention of Food Adulteration Rules, 1955. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents/accused. 4. As per the impugned order, the fourth accused/ petitioner was impleaded in the case by invoking Section 20A of P.F.A Act. Learned counsel for the petitioner submitted that the procedure adopted by the learned Magistrate is legally unsustainable. As per Section 20A of the P.F.A Act, the manufacturer, distributor or dealer of any article of food can be impleaded notwithstanding anything contained in Section 319 Cr.P.C or under Section 20A of the P.F.A Act, if the court is satisfied on evidence adduced before it that such person is also concerned with the alleged offence. For clarity, provision of Section 20A of the P.F.A Act is extracted hereunder : **==> picture [285 x 15] intentionally omitted <==** **Crl.M.C No.3759 of 2012 3** _**manufacturer, etc.** - Where at any time during the trial of any offence under this Act alleged to have been committed by any not the person, being 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 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.”_ 5. Learned counsel for the on petitioner relying Annexure 3 calender statement maintained by the court below contended that the court below passed the impugned order without complying with the provisions in the Code. My attention is drawn to the proceedings dated 17-01-2011. Learned **Crl.M.C No.3759 of 2012 4** Magistrate noticed that the offence alleged was punishable with imprisonment which may extend to six years. Therefore, learned Magistrate decided to go for a warrant trial procedure. Section 16A of P.F.A Act deals with the power of court to try cases summarily. It can be seen from the above section that in case the court decides to try the offence summarily, then the provisions of section 262 to 265 (both inclusive) of the Cr.P.C shall, as far as may be, apply to such a trial. 6. Learned counsel relying on a Division Bench of this court in _**Chandak v. Food Inspector (1990 K.H.C 131)**_ interpreted this provision and held as follows : _“ 5. The provision in S.16-A that all offences under S.16(l) ‘shall’ be tried in a summary way, need be understood only as ‘may’, according to the discretion of the Magistrate. Under S.16(1), the penalty can go upto imprisonment for a period of three years. In a case tried in the summary way,_ **Crl.M.C No.3759 of 2012 5** _the sentence cannot go beyond a term of imprisonment for three months under S.262 (2) of the Code of Criminal Procedure. S.16A of the Prevention of Food Adulteration Act is an exception to that. Even there the sentence of imprisonment cannot go beyond one year when tried summarily. If all such cases are to be tried summarily, without any discretion in that respect to the Magistrate, the provision for maximum sentence will become meaningless. The discretion given in this respect under S.260 of the Code is not in any way affected by S.16-A. When the case is tried in a summary way, the procedure to be followed is that of a summons case. Trial in a summons case begins when the accused enters appearance and the particulars of the offence stated to him (Siddappa v. Patel Shivappa - AIR 1967 Mysore 248). It could be said that when the case is tried as a warrant case instituted otherwise than on a police report, the trial_ **Crl.M.C No.3759 of 2012 6** _commences only when the charge is framed after compliance with S.244.”_ 7. Learned counsel for the petitioner argued that the learned Magistrate having decided to try the case as a warrant case instituted otherwise than on a police report failed to take evidence under Section 244 Cr.P.C before passing the impugned order. Proceedings of the court below dated 17-01-2011 shows that the matter was posed for taking evidence under Section 244 Cr.P.C to 08-02-2011. On that date, the evidence was not taken. The case underwent various adjournments. Thereafter, on 27-06-2011, the court recorded that the complainant was absent. Accused 1 and 2 were present. On that date, the particulars of offence was read over and explained to the accused and thereby virtually framed the charge. Then on 25-07-2011, the first prosecution witness was examined and certain documents were marked. It was adjourned for cross examination to a further date. Learned counsel for the petitioner based on Annexure 3 **Crl.M.C No.3759 of 2012 7** submitted that addition of the petitioner as accused in the crime is in violation of the procedure set out in the Cr.P.C. Section 20A of the P.F.A Act referred to above clearly shows that addition of the accused under that provision could be done only on appreciation of the evidence adduced before it during the trial. It is beyond any pale of dispute that the trial in a warrant case commences only on framing charges. Here, the charge, as per the record, was framed without complying with the procedure in Section 244 Cr.P.C. Therefore, the impleadment of the petitioner as an additional accused is in disregard of the provisions of the Code. 8. Learned counsel for the petitioner relied on a decision of the Supreme court in _**M/s.Omprakash Shivaprakash v. Kuriakose (1999 K.H.C 684)**_ . Of course, that was a case where the Magistrate was proceeding a P.F.A case as a summary trial. But the law declared in relation to Section 20A of the P.F.A Act is applicable even to the facts of this case. In that decision, **Crl.M.C No.3759 of 2012 8** four essential conditions have been narrated for invoking the power under Section 20A of the Act. The law stated, is as follows : _“ 7. The above provision overrides the ban contained in S. 20 of the Act that no prosecution shall be instituted for the offences under the Act except by or with the consent of the authorities mentioned in the Section. The essential conditions for invoking the power under S. 20-A are that (1) the trial should have begun already; (2) the trial must be of any offence under the Act allegedly committed by a person other than the manufacturer or distributor or dealer of the food article; (3) the Court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence; (4) such satisfaction must have been formed “on the evidence adduced before the Court.”_ It has been explicitly stated by the Supreme Court that the power **Crl.M.C No.3759 of 2012 9** under Section 20A of the P.F.A Act cannot be invoked until the trial begins and after the trial ends. 9. This decision was followed by this Court in _**Govinda Rao v. Food Inspector (2002 K.H.C 176)**_ and _**Francis v. Dinesan (2003 K.H.C 58).**_ There cannot be any doubt regarding the legal position that the trial in a warrant case instituted otherwise than on a police report would commence by framing charges. In this case, the learned Magistrate, having decided to proceed as a warrant trial, did not comply with the directions in Section 244 Cr.P.C before framing charge. That appears to be the first illegality. Secondly, the learned Magistrate impleaded the accused without considering the evidence. Merely by producing certain bills before the court, an accused cannot be impleaded under Section 20A of the P.F.A Act as the terms are very clear that the impleadment shall be done in accordance with the evidence recorded at the trial. Therefore, viewing from that angle also, the impleadment of the fourth accused is **Crl.M.C No.3759 of 2012 10** unsustainable. I find that the impugned order is to be interfered with. In the result, Crl.M.C is allowed. Annexure 2 order passed by the learned Magistrate on C.M.P No.1464/2012 in S.T No.6/2008 is set aside. Learned Magistrate shall follow the procedure in Section 244 Cr.P.C and frame charge in accordance with law and thereafter proceed with the trial. Whether the petitioner is to be impleaded or not is a matter to be decided thereafter in accordance with law. However, it is made clear the the learned Magistrate shall consider the issue at appropriate time and in accordance with law. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk