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Gandharv Lal Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1980CriLJ1189
AppellantGandharv Lal
RespondentState of Himachal Pradesh
Excerpt:
- .....before passing the impugned order. the trial before the magistrate against bal kishan vendor, therefore, never commenced before the magistrate and this being so, the impugned order cannot be said to have been passed during the pendency of the trial of an offence under the act alleged to have been committed by any person other then the manufacturer, distributor or dealer of any article of food. the magistrate, therefore, could certainly not legally exercise his power under section 20-a of the act in ordering prosecution of the petitioner in the manner in which he has done and the impugned order, therefore, is unsustainable.11. with these remarks i accept this petition and quash the proceedings pending against the petitioner in the court of the judicial magistrate, first class,.....
Judgment:
ORDER

T.R. Handa, J.

1. By this petition filed under Section 482 of the Code of Criminal Procedure, hereinafter shortly stated 'the Code', the petitioner prays for quashing his prosecution under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as 'the Act', as ordered by the Judicial Magistrate 1st Class Ghum-arwin vide his order dated 21-9-1979 whereby the Judicial Magistrate discharged Shri Bal Kishan (vendor) against whom the original complaint under Section 16(1)(a) of the Act had been filed by the Food Inspector and on an application made by the said Shri Bal Kishan, directed prosecution of the present petitioner for the offence aforesaid.

2. It appears that on 28-11-1978 the Food Inspector, Bilaspur purchased a sample of Meethi Golian from Shri Bal Kishan of village Dakari, Tehsil Ghum-arwin, for the purpose of analysis under the Act. The said sample, according to the allegations made in the complaint lodged by the Food Inspector against the said Shri Bal Kishan, was taken and dealt with in accordance with the provisions of the Act and the Rules made thereunder and on being analysed by the Public Analyst it was found adulterated. The Food Inspector accordingly filed a complaint against the said Shri Ba] Kishan under Section 16(1)(a) read with Section 7 of the Act.

3. The Magistrate, on the complaint being presented to him, proceeded forthwith to summon Shri Bal Kishan vendor and after Shri Bal Kishan put in appearance before him the learned Magistrate adjourned the case for prosecution evidence. On the date fixed for prosecution evidence, however, no such evidence was recorded but on the other hand Shri Bal Kishan vendor moved an application purporting to be under Sections 14, 19 and 20-A of the Act before the Magistrate praying that he be discharged and in his place the present petitioner be impleaded as accused. Shri Bal Kishan vendor had alleged in his application aforesaid that he had purchased Meethi Golian out of which the sample had been taken by the Food Inspector from the manufacturer, the present petitioner, through M/s. Munshi Ram Bimal Parkash, the agents of the manufacturer, under a warrant and while in his possession such Meethi Golian had been properly stored and he had sold them in the same state as he had purchased.

4. The learned Magistrate after recording evidence of Shri Bal Kishan vendor passed the impugned order whereby he discharged Bal Kishan vendor and directed that the present petitioner and his commission agents be summoned 'as accused as, according to him, a case under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 had been made out against them.

5. It is obvious that the impugned order was passed by the learned Magistrate on the application of Bal Kishan vendor and in the exercise of the jurisdiction vested in him under Section 20-A of the Act. The provision reads as under:

20-A. 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 evidenca 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 under Section 20.

6. Section 20 of the Act operates as a bar to the institution of any prosecution for an offence under the Act not being an offence under Section 14 or 14-A, unless such prosecution is instituted by or with the consent in writing of the Central Government or the State Government or a person duly authorised in this behalf by a general or special order of either of such Governments. Section 20-A is in the nature of an exception to the provisions of Section 20. This section enables a Court to implead a manufacturer, distributor or dealer of an article of food when it is satisfied on some evidence recorded in the trial of some person other then the manufacturer, distributor or dealer that he is also concerned with the offence. When a manufacturer, distributor or dealer is so impleaded, it would be deemed as if the prosecution had been instituted against him under Section 20. Before a Magistrate, however, can invoke his jurisdiction under Section 20-A of the Act and implead any manufacturer, distributor or dealer-(1) there must have been a trial of an offence under the Act pending before the Magistrate against a person other then the manufacturer, distributor or dealer of an article of food, (21 there must have been evidence adduced before the Magistrate during such trial of a person other then the manufacturer, distributor or dealer of an article of food and (3) the Magistrate must also be satisfied on the evidence adduced before him that such manufacturer, distributor or dealer is concerned with that offence. The jurisdiction conferred on the Magistrate under Section 20-A of the Act thus can be exercised by him only during the pendency of the trial for an offence under the Act against a person other then the manufacturer, distributor or dealer of an article of food. By necessary implication, it would follow that such jurisdiction cannot he exercised by the Magistrate before the commencement of the trial against a person other then the manufacturer, distributor or dealer since it is only on the basis of the evidence produced in the course of such trial that the Magistrate is to arrive at his satisfaction that the manufacturer, distributor or dealer i: concerned with the offence forming subject matter of the trial.

7. In the instant case as is apparent from the evidence as narrated above, the trial of Bal Kishan vendor had not vet commenced when the impugned order was passed by the learned Magistrate and for this short ground the prosecution of the petitioner as ordered by The learned Magistrate vide the impugned order need be quashed.

8. The term 'trial' has of course not been defined anywhere in the Code. Its import can, however, be ascertained by reference to various provisions of the Code. We find reference to four types of trials in the Code. They are-(1) trial before a Court of Session, (2) trial of warrant cases by Magistrate, (3) trial of summons cases by Magistrates and (4) summary trials. Here we are concerned with the trial of warrant cases by Magistrates.

9. The provisions dealing with such trials are found in Chapter XIX of the Code. Part A of this chapter deals with the trial by a Magistrate of warrant cases instituted upon a police report while Part B of this chapter deals with the trial of cases instituted otherwise then on police report. The provisions for the trial of cases like the present one are thus to be found in Chapter XIX-B which consists of four sections starting from Section 244 and ending with Section 247. The first of these sections, namely, 244 is in the following language:

244. Evidence for prosecution. (1) When, in any warrant case instituted otherwise then on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

The language employed in Section 244 would thus go to suggest that the trial of a warrant case instituted otherwise then on a police report would commence only after the accused appears or is brought before a Magistrate and the Magistrate proceeds to hear the prosecution and takes evidence as may be produced in support of the prosecution. There are of course proceedings conducted by the Magistrates in respect of warrant cases instituted otherwise then on a police report before the stage of Section 244 is reached but such proceedings would not constitute a part of the trial either of the accused or of the case. Complaints to the Magistrates are filed under Chapter XV of the Code which is under the heading 'Complaints to Magistrates'. Initial proceedings on these complaints like issue of process and supply of documents etc. are conducted under Chapter XVI of the Code which is under the heading 'commencement of proceedings before Magistrates'. Next comes Chapter XIX which is under the heading 'trial of warrant cases by Magistrates'. These three separate headings allotted to the three different chapters, namely, Chapters XV, XVI and XIX would further strengthen the conclusion that the trial of warrant cases instituted otherwise then on police report would commence only when the case reaches the stage enabling the Magistrate to comply with the provisions of Section 244 of the Code. It thus follows that the trial of a warrant case instituted otherwise then on a police report cannot be said to have commenced till the accused appears or is brought before a Magistrate and the Magistrate proceeds to hear the prosecution and takes all such evidence as may be produced in support of the prosecution.

10. In the instant case as already stated the Magistrate neither heard the prosecution nor recorded any evidence in support of the prosecution before passing the impugned order. The trial before the Magistrate against Bal Kishan vendor, therefore, never commenced before the Magistrate and this being so, the impugned order cannot be said to have been passed during the pendency of the trial of an offence under the Act alleged to have been committed by any person other then the manufacturer, distributor or dealer of any article of food. The Magistrate, therefore, could certainly not legally exercise his power under Section 20-A of the Act in ordering prosecution of the petitioner in the manner in which he has done and the impugned order, therefore, is unsustainable.

11. With these remarks I accept this petition and quash the proceedings pending against the petitioner in the Court of the Judicial Magistrate, first Class, Ghumarwin in pursuance of the impugned order dated 21-9-1979 passed by the learned Magistrate.


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