K. Rajendran and P.S. Mani vs Drugs Inspector, Office of the Assistant State Drugs Controller, Zone I, Madras-108

Arunachalam, J.—In this petition filed u/s 482, Code of Criminal Procedure, the Petitioners challenge their inclusion as accused 6 and 7 in C.C. No. 3369 of 1986, pending on the file of the XV. Metropolitan Magistrate, Madras at the instance of the Respondent--Drugs Inspector, George Town I Range, Office of the Assistant State Drugs Controller Zone I, Madras 600 108, on a petition filed u/s 319 Code of Criminal Procedure, before the trial Magistrate.

On a private complaint preferred by the Respondent, the trial Magistrate took the case on file against five accused shown therein for alleged commission of offences under Sections 3(d), 3(e) and 4 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, punishable u/s 7 of the said Act. The first accused in the complaint was the firm licensed to manufacture Siddha Proprietary medicines. Accused Nos. 2 to 4 were partners of the firm of the first accused. The complaint reads that on routine verification of the advertisements in magazines, the Respondent noticed an advertisements in Kalki issue dated 15-9-1985 on ''KAYAKALPAM'' at page 56. A scrutiny of the advertisement showed, that claim had been made for cure, mitigation and treatment of diseases, namely tuberculosis, heart diseases, blood pressure and menstrual disorders, suggesting or calculated to suggest such cure by the use of Kayakalpam.

The Respondent had addressed a letter to Kalki to disclose the names and addresses of the persons who had released the said objectionable advertisement in Kalki and the latter gave the particulars asked for. It was thereafter, that the Respondent chose to file a complaint against A.1 to A.6 (The person initially shown as A.6 (The person initially shown as A.6 died, meanwhile)

After the case was taken on file, at the instance of the Respondent, the trial Magistrate sent a notice to Vaidyanathan, editor, Kalki, stating that he had also been included as one of the accused in C.C. No. 3369/86. This notice was dated 5-3-1987. It appears from the records that Vaidyanathan, sought to be impleaded by the prosecuting agency, stated, he was only a publisher, and that the editor and assistant editor of Kalki, were K. Rajendran and P.S. Mani respectively. Thereafter, on 9-4-1987, another petition was filed by the Respondent, u/s 319 Code of Criminal Procedure, before the trial Magistrate, which states about the aforesaid representation of Vaidyanathan. In this petition, the Respondent sought the intervention of the Court, to implead as accused ''on the question of vicarious liability'' Raiendran, Mani as well as Vaidyanathan on behalf of M/s. Bharathan Publications (P) Limited. The learned Magistrate acceded to the request made by the prosecution in respect of the Petitioners, who were impleaded as A.6 and A.7, while the plea to implead Vaidyanathan was negatived. Thereafter, the prosecution chose to file another petition u/s 319 Code of Criminal Procedure, to include Vaidyanathan as a publisher and Murali as the printer. The prosecution apparently did not take any steps in the higher forum, against the earlier order of the trial magistrate, refusing to implead Vaidyanathan as one of the accused, in this prosecution.

In this petition, Mr. S. Sundar, learned Counsel appearing on behalf of the Petitioner condends, that on facts, the provisions of Section 319 Code of Criminal Procedure could not have been invoked by the trial Magistrate, since neither an enquiry nor a trial had commenced. Section 319 Code of Criminal Procedure, can take in the Petitioners as accused, only if it appeared from the evidence recorded during the trial or enquiry that these persons, not being accused, had committed any offence for which they could be tried together with the accused already before Court. He also commented upon the successive petitions filed by the Respondent, obviously vindictively, though he had all the material collected, even at the first instance, when the complaint was laid against the initial six accused alone. Finally be contended, that the power u/s 319, Code of Criminal Procedure may have to be used very sparingly and this was not one of those cases, where even without the evidence being recorded such power could be exercised by the court below.

I have heard Mr. Hamid Sultan, learned Government Advocate appearing on behalf of the Respondent. He fairly stated, that except the complaint, no other material was on record, and recording of evidence had not yet commenced. On the need for successive petitions being filed u/s 319 Code of Criminal Procedure he submitted, that probably the Respondent was unaware of Court proceedings and the legal implications in filing several petitions for the same relief, as against different persons, at different stages, even before evidence was brought on record.

I have carefully considered the contentions of the learned Counsel, appearing for the Petitioners. The power sought to be conferred on Courts u/s 319 Code of Criminal Procedure, is a salutary power, intended to be exercised in suitable cases, if the conditions contemplated therein, were satisfied. The exercise of powers under this section, came into operation only in the course of any enquiry into or trial of, an offence. Admittedly, the enquiry or trial had not yet commenced and all that was available for the trial magistrate was the complaint preferred by the Respondent. It must also be mentioned, that the provisions of Section 319 Code of Criminal Procedure, do not appear to create a vested right in the litigants but conserves the power of the Court to see that justice is done, when the matter is brought or comes to its knowledge. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , the Supreme Court, after referring to the provisions of Section 319 Code of Criminal Procedure, stated that the Section gave ample powers to any Court to take cognisance and add any person not being an accused before it and try him along with the other accused. The Supreme Court quoted the view expressed by it earlier, in Joginder Singh v. State of Punjab 1979 S.C. 339 which reads as follows:

A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.

It was also observed by the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, as hereunder:

But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

As rightly pointed out by the learned Counsel for the Petitioners, Section 319(4)(a) Code of Criminal Procedure will also give an indication that the powers u/s 319 Code of Criminal Procedure, can be exercised, only after the commencement of an enquiry or trial of an offence. That stage not having reached, the contention of the Petitioner''s counsel will have to be upheld.

Section 9 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 refers to offences by companies. If a person contravening any of the provisions of the Act was a company, every person who was at the time, when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the Company would be deemed to be guilty of the alleged contravention. The prosecution has not chosen to implicate Bharathan Publications (P) Ltd., in these proceedings. Further, before the Magistrate, there was no material whatsoever to hold, that the Petitioners were in charge of and responsible for the conduct of the business of the company, namely, Bharathan Publications (P) Ltd.

Looked at from any angle, the impleading of the Petitioners as A.6 and A.7 in this prosecution cannot be sustained. In that view, this petition is allowed and the proceedings in C.C. No. 3369 of 1986 on the file of the 15th Metropolitan Magistrate, George Town, Madras, in so far as it relates to them, shall stand quashed.