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KERALA HIGH COURT
S. Padmanabhan, J.
P. K. Joseph -Petitioner
Versus
Food Inspector, Municipal Council,
Angamaly and others - Respondents
Criminal Revision Petition No. 126 of 1984
Decided on 18.2.1987
Joseph J. Therattil, Advocate - For the Petitioner.
M. P.R. Nair, Advocate-For the Respondents.
Held, though there are provisions for impleading accused in criminal proceedings in appropriate cases, there is no provision in a criminal trial, as in a civil case, to delete the name of an accused or to remove him from party array. A person is made an accused only on the allegation that he has committed an offence which is punishable. The object is to bring the offender to justice. As in a civil case there is no question of necessary, desirable or proforma parties in a criminal case. When a person becomes an accused and is brought before court he could cease to be an accused only by any of the methods provided by law) namely, dismissal of the complaint, discharge, acquittal or release or such other method, if any, provided by law. (Para 9)
Further held, the object and purpose of making a person an accused in a case is not to avoid prejudice to another accused or any other person. It is only because there are reasons to proceed against him for having committed an offence and to bring him to justice in relation to that offence. Conviction, acquittal or release, or discharge or any other method of exonerating him from liability for the offence is also not based on prejudice or absence of prejudice to a co-accused or anybody else. It is only based on proof of guilt or innocence or other reasons of legal or technical nature provided by the laws. Exoneration of the second accused merely on the ground that it will not prejudice the first accused is a proposition not known to law. (Para 10)
The Magistrate failed to realise the fact that deletion of the name of the second accused had the effect of exonerating him from liability for the alleged offence without facing a trial and proving his innocence. (Para 11)
(ii) Prevention of Food Adulteration Act, 1954-Section 20-When at any time during the trial of any offence under the Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, if the court is satisfied, that such dealer, manufacturer or distributor is also concerned with that offence the court can proceed against those.
Held, this is notwithstanding the provisions of section 319(3) Criminal Procedure Code and section 20 of the Act, as though the prosecution has been instituted against him also as provided under section 20. Even if the manufacturer, distributor or dealer is not present in court and even without a complaint or written consent as contemplated in section 20, the Court is empowered under section 20 of the Act to proceed against the manufacturer, distributor or dealer by way of joint trial along with the vendor. That means, in an appropriate case the court is given the power and duty to implead the manufacturer, distributor or dealer as a co-accused along with the vendor and try him as an accused. (Para 3)
When the dealer, distributor or manufacturer is a company, section 17 of the Act provides that not only the company but any person who bas been nominated 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, also shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (Para 5)
(iii) Prevention of Food Adulteration Act, 1954-Section 17(1)-A person having liability under. assumes the character of an individual offender and an accused.
Held, it is true that by impleading and proceeding against the manufacturer, distributor or dealer the court only considers or satisfies that he is also concerned with the offence or that there is sufficient ground to proceed against him and not decides that he is guilty. (Para 6)
Result-
Petition Allowed.
JUDGMENT
S. Padmanabhan, J. - C. C. No. 238 of 1981 on the file of the Judicial First Class Magistrate, Alwaye was instituted on a complaint filed by the Food Inspector. Alwaye against the revision petitioner as the sole accused for having exposed for sate and sold adulterated food article. His case is that, he is entitled to protection under section 19(2) of the, Prevention of Food Adulteration Act, having purchased the food item under invoice from a firm, K.J. Thomas and Brothers a wholesale dealer, of which one Mr. K. J. Thomas is the managing partner who is in charge of and responsible to, the company for the conduct of its business. On his application under the provisions of section 20-A K. J. Thomas was impleaded as the second accused and the firm represented by the same K.J. Thomas was impleaded as third accused. K.J. Thomas entered appearance pursuant to process received from court to his personal capacity as second accused and representing the third accused firm. Then he moved a petition to delete his name as the second accused on the plea that the firm represented by him is an accused and therefore he need not be an accused in his personal capacity. By order dated 3-2-1984 the Magistrate allowed the prayer and deleted second accused from the party array. Vendor who is the first accused seeks to revise that order.
2. When sale of adulterated food is proved the only successful defence that is available to the vendor is that under section 19(2) that he purchased the article of food;
(i) in a case where a licence is prescribed for the sale thereof from a duly licensed manufacturer, distributor or dealer;
(ii) in any other case, from any manufacturer, distributor or dealer; with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it."
It was by way of this defence that he moved the Court since the Food Inspector has not taken steps for that purpose.
3. When at any time during the trial of any offence under the Prevention of Food Adulteration Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, if the court is satisfied on the evidence, that such manufacturer, distributor or dealer is also concerned with that offence, the Court has no other option but to proceed against such manufacturer, distributor or dealer. This is notwithstanding the provisions of Section 319(3) Criminal Procedure Code and Section 20 of the Act, as though the prosecution has been instituted against him also as provided under section 20. Even if the manufacturer, distributor or dealer is not present in Court and even without a complaint or written consent as contemplated in Section 20, the Court is empowered under section 20 of the Act to proceed against the manufacturer, distributor or dealer by way of joint trial along with the vendor. That means, in an appropriate case the Court is given the power and duty to implead the manufacturer, distributor or dealer as a co-accused along with the vendor and try him as an accused.
4. It is in exercise of this power that the Magistrate, on the application of the revision petitioner, impleaded the dealer as the third accused. Process was also issued. That means the Magistrate had the satisfaction that the dealer is also concerned with the offence. This is notwithstanding anything contained in section 20 that no prosecution shall be instituted except by or with the written consent of the Government or a person authorised in that behalf. When process is issued the legal fiction is that the Court applied its mind not only for taking cognizance but also for proceeding against such person as is provided in section 204 of the Criminal Procedure Code on the basis that there is sufficient ground for proceeding.
5. When the dealer, distributor or manufacturer is a company, section 17 of the Act provides that not only th
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