G. K. SHARMA J. - (1.) THIS revision petition is preferred against the order dated 3rd Apr. , '89, by which, the ACJM No. 2 Kota, has ordered to implead the petitioner as an accused in the case, u/s. 20-A of the prevention of Food Adulteration Act, 1954 (for short, "the Act" ).
(2.) THIS case has its own chequered history'. The incident relates to the year 1972, and the case is still pending in the court of ACJM No. 2, Kota. Om Prakash Pal, the then Food Inspector, purchased some sample of Til oil on 2nd July, '72, from the shop of Mohanlal, where, Kaushal was the salesaman. The said sample was then sent for analysis, which on examination, was found to be adulterated. After obtaining sanction, a complaint was lodged against Mohanial and Kaushal Kumar u/s. 7/16 of the Act, in the year 1972. The trial of the case started, and on 26th June, '76, Mohanial moved an application u/s. 20-A of the Act disclosing that the tin from which the sample was taken on 2rd July, '72, was purchased by him duly sealed, from M/s. Sunderlal-Hansraj of Kota. He also submitted a bill for the purchase of the said oil tin, dated 26th June, '72. The trial court granted that application; and , Hansraj being the Proprietor of firm M/s. Sunderlal-Hansfaj, was impleaded as an accused in the case. Thus, again the trial started on 10th Nov. '77, Hansraj moved another application u/s. 20-A of the Act, wherein, he took alternative pleas. His first contention was that the sample purchased on 2nd July, '72, by the Food Inspector, from the shop of Mohanlal, was not taken from the very tin of oil, which was sold by him to Mohanial. His second plea was that he had purchased the tin from the shop of M/s. Shivnath-Motilal in which firm, Nathu-Lal was a partner. The trial court, after hearing on the application allowed the application by order dated 12th Mar. ,'84, impleading firm Shivnath Motilal through Nathulal partner as an accused. That order was challenged by Nathu Lal, the petitioner, before the Sessions Judge Kota and the learned Sessions Judge, accepting his contention, set aside the order of the learned ACJM dated 12th Mar, '84. The trial of the case then started The prosecution examined all its witnesses and closed the evidence. The accused persons also gave statements u/s. 313, Cr. P. C. and entered into defence. Petitioner Nathu Lal and Muneem Mohanial were examined as defence-witnesses. By that time, the firm. M/s. Shivnath-Motilal had already dissolved. After recording statement of Nathu lal as a partner of the dissolved firm Shivnath-Motilal the APP moved another application on 12th Dec. '88, requesting the court to implead Nathulal as an accused in the case. The reason was that Nathulal had admitted in his statment he had sold 20 tins of Til oil to Hansraj; and on the basis of this statement, the APP moved the application for impleading him as an accused. The learned Magistate vide impugned order dated 3rd Apr. , '88, impleaded petitioner Nathulal as an accused in the case. That order of the Magistrate has been challenged in this petition. Mr. B. L. Mandhana, the learned counsel for the the petitioner brought the entire facts of the case to the notice of this Court and argued that there are so many legal points which are sufficient to quash the order dated 3rd Apr. , '89. His first contention was that the order of the learned Magistrate (ACJM) is without jurisdiction. According to him, S. 17 of the Act shows that where an offence under the Act has been committed by a company the person if any, who has been nominated under sub-section (2), to be in charge of, and responsible to, the company for the conduct of the business of the company, or where no person has been so nominated, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. From the Explanation given under this section it becomes clear that the word "company" includes a firm. So, pointing out S. 17 of the Act, it was argued that it was the duty of the prosecution to show prima facie that petitioner Nathulal, at the time of taking of sample, was either incharge of the business of the firm, from where the sample was taken, or he was duly nominated, as envisaged in sub-section (2) of S. 17 of the Act, for making him responsible to the conduct of the business of the company. Here is not a case of the prosecution that Nathu lal petitioner had sold the sample of oil to the Food Inspector, nor is it the allegation that at the time of taking sample, Nathulal was incharge of the business or shop from where the sample was taken. So, the argument is that in no circumstance, Nathulal can be impleded as an accused, as S. 17 defines. To support his argument, Mr. Mandhana relied on the case of PR. Neelkantham vs. State of Rajasthan (1) wherein it was held that there must be allegation in complaint that the Directors and salesman were in charge and responsible for the conduct of the business of the company, and that in the absence of such allegation, no prosecution could be launched and no cognizance could be taken against the Directors and salesman. In that case it was further observed that to apply Sec. 20-A, there should be some evidence before the Court and that distributor or dealer can be impleaded as accused only during trial. So, the principle laid down in the above case-law is that there must be some evidence against Nathulal petitioner to show that he was incharge and responsible for the conduct of the busineses of the firm/shop from where the sample was taken by the Food Inspector. As there is no such evidence on the record, the order impleading him as an accused, is a bad order, argued Mr. Mandhana. This argument has substance. During the trial in the year 1977, when Hansraj moved an application u/s. 20-A, petitioner Nathulal was impleaded as an accused; and the main ground in that application taken by Hansraj was that he had purchased the oil-tin from the firm M/s. Shivnath-Motilal, who were manufacturers of Til oil. On the basis of this information, Nathulal was impleaded as an accused. Against that order, Nathulal then filed a revision in the court of Sessions Judge, which was accepted vide order dated 12th Mar. , '84, by which, the order impleading Nathulal as an accused, was set aside. At that time, the point was that the oil was sold by the firm 'shivnath-Motilal' to Hansraj, and Hansraj had sold it to Mohanlal, the dealer, from whose possession, the sample was taken. So, on this very ground when once a person was made accused and that order was set aside by the Sessions Judge, on the same ground and. contention, upon the APP's moving a second application on 12th Dec, '88 and on the same circumstances, the learned ACJM could not have granted the application making the petitioner again accused in the case. I fail to understand, how the learned ACJM passed the order. This is a very strange order, which shows that either it was not brought to the notice of the learned Magistrate that the earlier order dated 12th Mar. , '84. impleading Nathulal as an accused was set aside by the learned Sessions Judge, or knowingly that there was such an order, the learned Magistrate again passed this order; and if he has done it knowingly then this is an unfortunate case which shows ignorance of principles and niceties of law of the trial court. Therefore, this is a ground on which the impugned order is liable to be setaside. The contention of Hansraj in his application as well as statement recorded u/s. 313, Cr. P. C. is that he had sold the tin of Til oil to Mohanlal, vendor, but, the sample which was taken by the Food Inspector on 2nd July, '72 was not from that very tin, which was sold by him to Mohanlal. There is nothing on the record to show that the sample was taken by the Food Inspector from the tin which was sold by Hansraj to Mohanlal. In the absence of any proof on this aspect, the contention of Hansraj is a very strong one. When he raised this objection, it was the duty of the prosecution to prove that the sample was taken from that very tin which was sold to Mohanlal by Hansraj. So, the prosecution should have proved this fact in the begining. Thus, the fact goes that Hansraj stated that he had purchased the oil from the firm M/s. Shivnath-Motilal. Its partner Nathulal has admitted that he had sold a number of oil tins to Hansraj. But, this statement does not mean that the very tin from which the sample was taken by the Food Inspector on 2nd July, '72, was the same tin which was sold by the firm M/s Shivnath-Motilal to Hansraj. So, it was not the tin which was later on sold by Hansraj to Mohanlal. In the absence of any evidence I fail to understand how the learned Magistrate gave the finding that Nathulal was responsible for the adulterated oil which was purchased from the dealer, Mohanlal. The trial court could not understand this matter in its right perspective. So, this is also a ground which is sufficient to set aside the impugned order which cannot be said to be correct order. It was also argued that when a vender purchases some food article, the dealer issues a certificate of warranty. Ss, 14 & 19 of the Act deals with warranty. According to S. 14, no manufacturer or distributor of or dealer in, any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. This provision has been made in order to safeguard the distribution of food articles. When sealed tins are sold to vendors, it has been made obligatory on the manufacturer distributor/dealer to issue a warranty in writing to the vendor about the nature and quality of the article. So, if a manufacturer sells a food article to a vendor, he is bound to give this warranty. If a distributor sells a food article he is bound to issue this warranty; and if a dealer sells it, he is also bound to give this warranty.
(3.) IN the present case according to Mohanlal, Hansraj was the dealer in Til oil and he had sold it to him. So, Nathulal who was the manufacturer, had not sold the Til oil to vendor Mohanlal, that is to say that Nathulal did not give any warranty in writing to Mohanlal. Similarly, the distributor did not sell the oil, so, he was not required to give any warranty. The dealer Hansraj had sold it to Mohanlal; so, Hansraj was to issue that warranty.-- The said warranty should have been taken on record by the prosecution in order to show as to which tin was sold by dealer Hansraj to Mohanlal. Whether the tin from which the sample was taken by the Food INspector was that very tin for which the warranty was given by Hansraj, to this effect, there is no proof on the record. This is also a lacuna in the prosecution case. If they want to connect Nathulal, the manufacturer with this crime, they must have connected him with the sample showing that this was the sample taken from that very tin which was sold to him by Hansraj, who had purchased it from the manufacturer, M/s. Shivnath-Motilal. There is nothing on the record to this effect. So, on this aspect also, the order of the learned ACJM is a bad one. It was then argued that the sample as taken in the year 1972, and after a lapse of 17 years, the petitioner, Nathulal has been impleaded as an accused. According to S. 468, Cr. P. C, the limitation for taking cognizance is 3 years only, and in this case, cognizance against the petitioner has been taken after 17 years. So, on this aspect also, taking cognizance after 17 years, is bad in the eye of law and cannot be maintained, argued the learned counsel for the petitioner. This argument too has substance. In view of my above discussion, I find that the imugned order dated 3rd Apr. , '89, is bad in law and is liable to be qushed. ;