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Judgment
Dharam Chand Chaudhary, J.�Petitioner has been added as one of the accused, vide impugned order dated 7.1.2014, passed by learned Chief Judicial Magistrate, Shimla, in an application under Section 20-A of the Prevention of Food Adulteration Act, hereinafter referred to as "the Act" in short. The complaint is that learned Magistrate below has ordered to implead the petitioner as accused No. 4, in the complaint in a cursory and casual manner without taking into consideration the averments made in the application and the documents annexed therewith.
The Food Inspector, respondent No. 1 herein, purchased 900 ML Premier Desert Super Vanilla ice-cream out of 1.25 litres brick stored in a deep fridger, in the premises of the 3rd respondent on 1.8.2003 at such a time when Shri Ashwani Sharma, the 2nd respondent, was conducting the business in the capacity of salesman. The ice-cream was kept for sale to the general public. Respondent No. 1 drew three samples out of the ice-cream he purchased. One of the samples was sent to Public Analyst, Kandaghat, which on analysis was found to be adulterated, as the fat contents were found less in the sample as compared to the prescribed standard under the Act. This has led in launching prosecution against accused No. 1 and 2.
Subsequently, on an application under Section 20-A of the Act filed by accused No. 1 Ashwani Sharma, Accused No. 3 M/s Radha Agencies through its authorized representative Shri Anand Khanna, was arrayed as one of the accused in the case. The newly added accused, i.e. M/s Radha Agencies, later on filed another application under Section 20A of the Act for impleadment of the petitioner, as an accused, on the ground that the petitioner (now accused No. 4) is the manufacturer of the incriminating food item and it is the said accused who had supplied the same to accused No. 3.
A formal reply to the application was also filed by the complainant-Food Inspector, stating therein that he has no objection in case the petitioner herein is impleaded as one of the accused in the complaint, in case the applicant-accused No. 3 succeeds in establishing that the incriminating food item was purchased from the petitioner with the written warrantee and sold the same further in the same condition in which it was purchased.
The authorized representative of accused No. 3 Shri Anand Khanna has stepped into the witness box as AW and proved the Bill Ext. AW3/A. He claims M/s Radha Agencies to be the distributor of M/s Vadilal Ice-cream and states that vide Bill Ext. AW3/A Accused No. 3 had purchased two sealed boxes containing ice-cream in cups and in the shape of bricks on 13.7.2003 through M/s Supreme Bio-Tech Private Limited, the petitioner herein. The boxes duly sealed were further supplied by him in that very condition to accused No. 1 Ashwani Shrama without tampering with the same in any manner. According to him, the petitioner deals with the products of M/s Vadilal Ice-cream. This witness was cross-examined by the Food Inspector and also by learned counsel, representing the petitioner-accused No. 4. His version in cross-examination reveals that whatever he averred in the application and in his examination-in-chief, the same remained unshattered.
Learned trial Court having taken into consideration the averments in the application and the evidence produced by applicant-accused No. 3 and also hearing the Food Inspector as well as learned counsel, representing the petitioner-accused No. 4, has ordered to implead accused No. 4 as such in the complaint vide order dated 7.1.2014 Annexure P-15.
The legality and validity of the impugned order has been challenged on the ground that learned trial Magistrate has passed the same in a cursory and casual manner without taking into consideration the contents of the application and also the documents nor recorded the satisfaction that the Bill Ext. AW3/A has been issued by accused No. 4 or not. It has also not been discussed that the petitioner-accused No. 4 is the manufacturer of the incriminating food item and that it is the said accused who has supplied the same to accused No. 3. It has been pointed out that M/s Vadilal Ice-cream is having a separate sales-tax number and a separate office at Old Kasauli Road, Sector-2 Parwanoo and as such has no connection with accused No. 4 regarding supply of the incriminating food article. Accused No. 4 allegedly has been wrongly shown as the clearing and forwarding agent of the food article in question, which accused No. 3 allegedly purchased directly from M/s Vadi Lal Enterprises Limited, Ahmedabad and the payment thereof has also been made directly to the said Company. Accused No. 4, in support of the contentions hereinabove, has also annexed Annexures P-9 to P-13 to this petition. It has also been urged that since the sample of food article was taken in the year 2003, i.e. more than 10 years ago, therefore, at this stage accused No. 4 may not be in a position to get the 2nd sample sent for analysis nor the desirable results on analysis of the same can be obtained. This aspect is also stated to be overlooked by learned trial Court.
On analyzing the arguments addressed by Mr. Dushyant Dadwal, learned counsel for the petitioner-accused No. 4, Shri D.S. Nainta, learned Additional Advocate General for the complainant-Food Inspector and also going through the record, it would not be improper to conclude that accused No. 4 in the Bill Ext.AW3/A has been shown as the agent of M/s VadiLal Ice-cream. Learned counsel has pointed out that this document bears CST number of Vadi Lal Ice-cream. It has also been pointed out that number of the vehicle in which the food article, as per this document, was supplied to accused No. 3, is HR-68-2384. An effort has been made to show that this consignment was booked at Ahmedabad by M/s VadiLal Ice-cream and not from Parwanoo where the petitioner-accused No. 4 runs its business. This court, however, is not persuaded by the submissions so made for the reason that Bill Ext. AW3/A prima-facie shows that the petitioner-accused No. 4 is the agent of Vadilal Ice-cream. The address of accused No. 4 finds mention in this bill. Therefore, prima-facie it is the accused No. 4 which has supplied the food article including ice-cream Super Vanilla to accused No. 3, the sample whereof was purchased by the Food Inspector vide Bill Ext.PW3/A. Shri Anand Khanna, the authorized representative of accused No. 3, while in the witness box has stated that it is the petitioner-accused No. 4, which has supplied the incriminating food article to accused No. 3. Accused No. 4 neither filed reply to the application nor did produce any evidence despite opportunities granted for the purpose. Though on 26.12.2003, another opportunity was sought on behalf of the said accused, however, disallowed in view of the case being old one.
Therefore, the Court below after taking into consideration the evidence produced by accused No. 3 and hearing the parties on both sides, has passed the order impugned in this petition which is neither illegal nor does it suffer from any infirmity.
Otherwise also, at this stage only process has been ordered to be issued against the petitioner accused No. 4 in the complaint. The record reveals that despite issuance of process, including the non-bailable warrants on several occasions, the said accused has not entered the appearance. The appropriate course available to the said accused was to have entered appearance and raised all just and admissible pleas in its defence at the time of consideration of the case for the purpose of putting notice of accusation etc.
The judgment dated 28.3.2011, of a coordinate Bench of this Court in ITC Ltd. Vs. State of H.P. and others, is distinguishable on facts for the reasons that in this case the impugned order has been passed on the basis of evidence produced by the applicant-accused No. 3 and so far as accused No. 4 is concerned, no evidence could be produced on its behalf despite opportunities granted for the purpose. As regards the law laid down in the judgment supra that with the passage of time it may not be possible to send the 2nd sample for analysis and obtain the exact results, is hardly of any help to the case of the petitioner-accused No. 4 as no such plea was raised in the trial Court. Above all, accused No. 4 is at liberty to raise this question in the trial Court at an appropriate stage on entering appearance.
No doubt the Apex Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, , has held that an order summoning an accused in a criminal case and setting into motion the criminal law must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto, however, as discussed hereinabove, learned trial Court has not only taken into consideration the application, but also the evidence produced by applicant-accused No. 3 as well as heard both the parties, including the petitioner herein before passing the impugned order qua impleadment of the petitioner as accused No. 4 in the complaint.
For all the reasons hereinabove, I find no merits in this petition and the same is accordingly dismissed. The parties through learned counsel representing them are directed to appear in the trial Court on 12th August, 2014. Record be sent back alongwith a copy of this judgment so as to reach in the trial Court well before the date fixed.
Petition stands disposed of.