MOHAN M.SHANTANAGOUDAR,J. - (1.) Leave granted.
(2.) This appeal by special leave arises out of judgment dated 11.04.2018 of the High Court of Madhya Pradesh at Jabalpur, dismissing the Appellant's application under Section 482 of the Criminal Procedure Code ('CrPC') for quashing of order dated 01.09.2015 of the Special Magistrate (Prevention of Food Adulteration Act), Bhopal.
(3.) The facts giving rise to this appeal are as follows: The Appellant was the marketer of packed food article 'Orange Tammy Sugarless Jelly' ('Jelly'). The Jelly was manufactured separately by one Cachet Pharmaceuticals Private Limited ('Manufacturer'), which is not connected to the Appellant entity. On 3.10.2008, Respondent No. 2 Food Inspector, (from the Food and Drugs Administration, Bhopal District), conducted inspection in Valecha Enterprises in Bhopal, the proprietor of which is one Mr. Dinesh Valecha ('Retailer'). Respondent No. 2 purchased three company packed jars of the Jelly, weighing 350 grams each, from the Retailer and the said samples were deposited with the State Food Testing Laboratory ('State Laboratory') and the Local Health Authority, Bhopal for the purpose of testing. At this stage, the Retailer did not have receipt of purchase from the Appellant/marketer and stated that they would produce it before Respondent No. 2 at a later stage. The Local Health Authority by letter dated 26.11.2008 informed Respondent No. 2 that the Report of the Public Analyst, State Laboratory had found 'sugar' in the Jelly sample, hence the Jelly was misbranded. Notably, it was pursuant to this letter that, Respondent No. 2 made further query and the Retailer produced a receipt showing that the Jelly was purchased from the Appellant. Respondent No. 2 sent a letter to the Local Health Authority and to the Indore branch of the Appellant company, for information as regards the Manager/Director/Partner or nominee of the Appellant. However, as the Respondents claim, the Appellant did not respond to this query and the letter was received back. The attempts of Respondent No. 2 to obtain information about the Appellant from the Office of the Deputy Director, Food and Drugs Administration and the Commissioner, Nagar Nigam, Indore also failed. Consequently, Respondent No. 2 filed a complaint in the Court of the Judicial Magistrate, First Class, Bhopal for the offence of selling a misbranded food article under Section 16(1)(a)(ii) read with Sections 2(ix)(g) and 7(ii) of the Prevention of Food Adulteration Act, 1954 (Rs.1954 Act'). During the course of the trial, after the closing of the prosecution evidence, the Retailer examined himself as a witness for the defence under Section 315 of the CrPC. Subsequently on 26.8.2014, the Retailer moved an application under Section 20A of the 1954 Act for impleading the Appellant as an accused, which was allowed by the Special Magistrate (Prevention of Food Adulteration Act), Bhopal by order dated 1.9.2015. Hence the Appellant approached the High Court under Section 482 of the CrPC for quashing the said order. The High Court in the impugned judgment held that firstly, mens rea was not an ingredient of the offence under Section 7 of the 1954 Act. Therefore the Appellant could not avail of the defense that since they were only the marketer of the Jelly, they were not privy to the ingredients thereof. Secondly, that the Appellant could not have availed of the right to get the sample retested by the Central Food Laboratory ('Central Laboratory') under Section 13(2) of the 1954 Act as the same was only available to the vendor of an 'adulterated' food article and not a 'misbranded' one. Hence the denial of the said right would not prejudice the case against the Appellant. Thirdly, that the delay of 5 years in arraying the Appellant as co accused would also not be fatal inasmuch as Respondent No. 2 had made best attempts to contact the Appellant, and the Appellant's name was probably omitted to avoid delay in filing the complaint. Lastly, that the application under Section 20A was maintainable as the Court may be satisfied on the basis of evidence adduced by either of the parties, including the prosecution, that the distributor/dealer of a food article is also concerned with the offence and such evidence need not be adduced by the applicant only. In any case the applicant/Retailer had given his evidence prior to impleadment. Hence the High Court declined to exercise its inherent powers under Section 482 of CrPC and quash the impleadment order dated 01.09.2015. However, this Court has directed stay of proceedings before the trial court against the Appellant during pendency of this appeal. ;