In this connection, the learned counsel for the petitioner has relied upon the decision of the Supreme Court in M/s. Omprakash Shivaprakash v. Kuriakose (1999(3) KLT
861) that:
"The essential conditions for invoking the power under section 20A 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"."
The learned counsel for the petitioner submits that the Court can proceed against the manufacturer, distributor or dealer only if the Court is satisfied from the "evidence adduced before it during the trial".
5. In Govinda Rao v. Food Inspector (2002(1) KLT
843) this court has held:
"A reading of section 20A would make it clear that the power given to the Court under that Section can be exercised only after taking evidence in the case. The section says that only when the Court is satisfied on the evidence adduced before it that manufacturer, distributor or dealer is also concerned with that offence, the Court may proceed against him as though prosecution had been instituted against him under section
20. Then the Court has the power to implead the manufacturer, distributor or dealer under section 20A of the Act. Court's power to implead a dealer, manufacturer or distributor under section 20A can neither be invoked before the stage of adducing evidence in the trial nor after the conclusion of trial."
Kerala High Court
M/S.RADHAKRISHNA TRADERS vs C.V.Saseedharan on 27th day of September, 2012
Citation: 2013CriLJ937, 2013(3)Crimes220, 2012 (4) KHC 647, 2012(4)KLJ670
S.T. Case No:18/2000 was filed by the Food Inspector against the vendor and the distributor. The allegation is that on 15.12.1999 at about 12.00 noon, the Food Inspector visited the shop of the 1st accused and after serving Form VI notice he purchased 750 grams of Orid gotta. Sampling, sealing and labelling were done. The Public Analyst reported that the articles did not conform to the standard prescribed. Hence, complaint was filed against two accused.
2. An application was filed by the 2nd accused before the learned Magistrate that he had purchased 134 bags of Orid whole (Orid gotta) from the Manufacturer, M/s.Radhakrishna Traders, Kollur as per Invoice dated 30.11.1999 and that the said quantity of 134 bags of Orid- Whole was delivered by road on 03.12.1999 and the same was entered in the Registers kept by him. According to him, it was out of the said 134 bags, he sold two bags to Chambakassery Stores as per bill no.1900 dated 7.12.1999. According to him the manufacturer is a necessary party to this case. It is also stated that he had sent a letter to the Food Inspector on 18.02.2000 stating that the name of the nominee of M/s. Radhakrishna Traders, Kollur is T.Shankar Prasad. Since the Food Inspector did not implead the manufacturer, petition was filed by A2 under section 20A of P.F.A. Act to implead the manufacturer as the 3rd accused. That petition was allowed by the learned Magistrate stating that on going through the evidence brought out through PW1 and Ext.D2 there are grounds to hold that A2 got the articles from another distributor. The copy of the letter sent by the petitioner to the Food Inspector and also the copy of the Way Bill/Invoice were relied on by the learned Magistrate to hold that the distributor, M/s. Radhakrishna Traders, Kollur has to be impleaded as 3rd accused.
3. Sri. T.A. Shaji, the learned counsel for the petitioner submits that impleadment under section 20A of the P.F.A. Act can be made only when it comes to the notice of the Magistrate from "the evidence adduced before it during the trial" that such manufacturer (distributor or dealer) is also concerned with that offence. Therefore, according to the learned counsel there must already be evidence adduced in the case to satisfy the court that manufacturer (distributor or dealer) is also concerned with the offence.
4. In this connection, the learned counsel for the petitioner has relied upon the decision of the Supreme Court in M/s. Omprakash Shivaprakash v. Kuriakose (1999(3) KLT
861) that:
"The essential conditions for invoking the power under section 20A 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"."
The learned counsel for the petitioner submits that the Court can proceed against the manufacturer, distributor or dealer only if the Court is satisfied from the "evidence adduced before it during the trial".
5. In Govinda Rao v. Food Inspector (2002(1) KLT
843) this court has held:
"A reading of section 20A would make it clear that the power given to the Court under that Section can be exercised only after taking evidence in the case. The section says that only when the Court is satisfied on the evidence adduced before it that manufacturer, distributor or dealer is also concerned with that offence, the Court may proceed against him as though prosecution had been instituted against him under section
20. Then the Court has the power to implead the manufacturer, distributor or dealer under section 20A of the Act. Court's power to implead a dealer, manufacturer or distributor under section 20A can neither be invoked before the stage of adducing evidence in the trial nor after the conclusion of trial."
6. In the light of these decisions, the learned counsel submits that impleadment of the petitioner as the 3rd accused in this case is illegal since there was no evidence adduced in this case to show that the petitioner is also concerned with the offence.
7. At the stage of impleadment under section 20A the evidence already adduced must be such that it is sufficient to satisfy the court to hold that the manufacturer, distributor or dealer is also concerned with that offence; the evidence need not be so strong to find the accused (the manufacturer sought to be impleaded) guilty of the offence. The adduction of further evidence for that purpose would arise only at a later stage, after the manufacturer, distributor or dealer is impleaded. Exhibits D1 and D2 proved through PW1 is sufficient to satisfy the court that the manufacturer M/s. Radhakrishna Traders is also concerned with the offence.
8. In this connection, the learned counsel appearing for the 2nd accused submits that it is not a case where no evidence was adduced during trial so as to invoke the power under Section 20A of the P.F.A.Act to implead the manufacturer/distributor. When P.W.1was examined, Exts.D1 and D2 were confronted to P.W.1 and those documents were marked. Those are the documents relied upon by the 2nd accused to contend that the food article in question in this case (Orid gotta) were purchased from the 3rd accused who was sought to be impleaded. Though it was not specifically mentioned in the impugned order as to what is the evidence that was produced before the court so as to implead the manufacturer/distributor, it can be seen from the statement given by P.W.1 during cross-examination that those documents were confronted and marked. It was the consistent case of the 2nd accused, the Proprietor, M/s.Jai Trading Company that the orid gotta in question was purchased from M/s.Radhakrishna Traders, the 3rd accused who was sought to be impleaded and it was the orid gotta so purchased which was sold by him (by the 2nd accused) to the 1st accused. Ext.D1 is the bill as per which the 2nd accused sold the article to Chambakassery stores of which the 1st accused is the vendor. It was also pointed out that even in Ext.P5 mahazar it was noted that the case of the 1st accused was that he purchased that orid gotta from M/s.Jai Trading Company which is the 2nd accused. Ext.D2 is dated 30.11.1999 which was the invoice/bill issued by the 3rd accused M/s.Radhakrishna Traders in favour of M/s.Jai Trading Company. Ext.D1 is the bill dated 7.12.1999 issued by M/s.Jai Trading Company to the 1st accused. Therefore, according to the learned counsel for the 2nd accused, these two documents which were marked through P.W.1 are so proximate in time that the food article mentioned therein (orid gotta) was the one purchased from the third accused. Therefore, it is not a case where there is absence of evidence so as to deny the application for impleadment under Section 20A.
9. Sri.Santhosh Subramanian, the learned counsel appearing for the respondent submits that the main object of Section 20A is to avoid multiplicity of prosecution and that the object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom an article of food was purchased and if from the evidence adduced the court is satisfied that the manufacturer, distributor or dealer of that article of food which is the subject matter of adulteration, is also concerned with the commission of offence, then the court has to invoke the power to implead such manufacturer, distributor or dealer.
10. The trial court was satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is also concerned with the offence. Exts.D1 and D2 would support the view so taken by the court below. Hence, I find no reason to invoke the jurisdiction under Section 482of the Cr.P.C. The question whether the bag in which the orid gotta was seen was in the same nature or condition or was having such distinguishing marks on the bags cannot be gone into in detail at this stage. It is for the parties to lead evidence on that point. As such, I find no reason to interfere with the order passed by the court below.
The Crl.M.C. is hence dismissed.
N.K. BALAKRISHNAN, JUDGE.
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