Ms Jumdomal Kanrumal Oil and Flour Mills vs Food Inspector, Didihatt Pithoragarh and Others

Prafulla C. Pant, J.—By means of this petition, moved under, Section 482 Cr.P.C., the petitioner has sought quashing of the orders dated 3.3.2001 and 8.11.2004, passed by the Chief Judicial Magistrate, Pithoragarh and Judicial Magistrate, Pithoragarh. respectively, in criminal Case No. 760 of 2004, Food Inspector v. Bhawan Singh & others.

Heard learned Counsel for the parties and perused the papers On record.

Brief facts of the case are that respondent No. I, Food Inspector, Didihat, Pithoragarh, purchased sample of mustered oil from Bhawan Singh (respondent no. 3), for the purpose of analysis, and after completing the formalities, required under the Rules, sent the same to the Public Analyst. In the analysis, the purchased item was found to be adulterated. After obtaining sanction from the Chief Medical Officer, the Food Inspector filed criminal complaint against the respondent No. 3 (Bhawan Singh) and respondent No. 4 (M/s Bachi Ram Harinandan), Wholesale Merchant of the Oil. It appears that during the pendency of the, said case, petitioner M/s Jumdomal Kanrumal. Oil and Four Mills. Barriey (Manufacturer) was also summoned. Said summoning order dated 20.11.1984 was challenged by the present petitioner before the Allahabad High Court in Criminal Revision No. 294 of 1984, which was allowed by the said Court vide its order dated 24.10.1994 (copy of the said order is annexed as Annexure No. 4 to the present petition). In the said order, the Allahabad High Court observed that if during trial evidence is brought on record to summon the petitioner, the trial court is at liberty to do the same. Subsequent to said order the impugned orders have been passed by the trial court against the manufacturer, aggrieved by which this petition has been filed.

As to the liability of manufacturer, Section 20A of the Prevention of Food Adulteration Act, 1954, provides as under:

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, notwithstanding anything contained in sub-section (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 u/s 20.

Learned Counsel for the petitioner submitted that neither any invoice nor receipt was produced before the trial court to show that either respondent No.4 (wholesale dealer) or respondent No. 3 (retailer) ever purchased the item sent for analysis from the petitioner, as such, the summoning order passed by the trial court is erroneous in law. It is further pleaded that no ''warranty'' was produced in the trial court to fix the liability of the ''manufacturer'' as to the purity of the item sold, if any, and guarantee issued by the manufacturer.

I have gone through the order dated 3.3.2001. Though it does mention that the power is exercised u/s 20A of the Prevention of Food Adulteration Act, 1954 (quoted above) but it does not indicate as to what was the evidence on the basis of which the manufacturer (present petitioner) was summoned in the trial. The order dated 8.11.2004 is simply a consequential order by which warrants were directed to be issued against manufacturer, as such, in none of the orders, it is mentioned that there was any receipt or invoice or warranty issued by M/s Jumdomal Kanrumal Oil and Flour Mills, Barriely in favour of either respondent No. 4 or respondent No. 3. Thus, in the opinion of this Court it appears that the trial court has erred in law in summoning the petitioner u/s 20A of the Prevention of Food Adulteration Act, 1954 without there being evidence on record.

It is pertinent to mention here that in para, 7 of the counter affidavit dated 2nd August, 2010 by Shri Anil Mishra, Food Inspector, Didihat, Pithoragarh has stated as under:

That on the basis of above averments the cash memo, bill or invoice given by manufacturer to the M/s Bachi Ram Harinandan, Simalgair Bazar, Pithoragarh are not available to the prosecution agency to produce before this Hon''ble Court.

In para 6 of the said counter affidavit, it has further been disclosed that cash memo, bill or invoice were not made available by respondent No.4 to the Chief Medical Officer when he was asked to produce the same.

In the above circumstances, the impugned orders passed against the petitioner are liable to be quashed, as the petitioner appears to have been summoned u/s 20A of the Prevention of Food Adulteration Act, 1954 without there being any documentary evidence of purchase of the item by the respondent No. 4 or respondent No. 3, which was purchased by the Food Inspector for analysis by the Public Analyst.

Therefore, the petition u/s 482 Cr.P.C. is allowed. Impugned orders 3.3.2001, passed by the Chief Judicial Magistrate, and order dated 8.11.2004 passed by the Judicial Magistrate, Pithoragarh, are hereby quashed.