PFA – M/s RK Trading Co Vs State of HP – Rishi Vanaspathi – adulteration case – May 25-2017

Bench: Hon’Ble Mr. Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No. 208 of 2016 .

Date of decision: 25th May, 2017.

M/s R. K. Trading Company …..Petitioner.

Versus State of Himachal Pradesh and others ….. Respondents.                                                                

Coram : The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

This petition under Section 482 of the Code of Criminal Procedure seeks quashing of the order dated 16.11.2015, passed by the learned Chief Judicial Magistrate, Chamba, whereby the petitioner has been ordered to be arraigned as accused No. 3.

2. The case in brief is that respondent No.1-complainant filed a complaint under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the ‘Act’) against respondent No. 2 Shri Prem Kumar for commission of offence under the Act in the Whether the reporters of the local papers may be allowed to see the Judgment?Yes Court of learned Chief Judicial Magistrate, Chamba. It was alleged that on 28.4.2008, Food Inspector inspected the shop of respondent .

No. 2 and found in his possession 16 packets of ‘Rishi Vanaspati’ for sale to the general public for consumption with other food articles in a carton box in his shop. The Food Inspector expressed his intention to take the sample of ‘Rishi Vanaspati’ for analysis and accordingly purchased three packets thereof weighing one litre each against the cash payment of Rs.195/- and obtained the receipt duly signed by the accused and the witnesses. It was alleged that after completion of the formalities, the sample was sealed and send to Public Analyst, Kandaghat, whereas the remaining two packets of the samples were deposited with the Local (Health) Authority in a safe manner. On analysis, the sample was found to be adulterated by the Public Analyst, Kandaghat and on these allegations after obtaining the consent of the C.M.O. Chamba, the complaint was filed against respondent No. 2 in the aforesaid Court.

3. However, during the pendency of the petition respondent No. 2 filed an application under Section 20-A of the Act for impleadment of M/s Karam Chand Mehgna Ram, Damtal on the allegations that the ‘Rishi Vanaspati’ in question had been purchased from the said firm against Bill No. 114, dated 12.04.2008 and after purchase, the same was stored in a safe place and sold to the Food Inspector in a sealed packet, which was kept in the same condition.

.

4. The learned Magistrate vide order dated 28.9.2012 impleaded the aforesaid firm as accused No. 2 through its proprietor Ramesh Kumar. Accordingly, notices were sent to Ramesh Kumar, who put in his appearance and charges were framed against him.

5. However, thereafter, Ramesh Kumar, in turn, filed an application under Section 20-A of the Act on 6.8.2013 for impleading the petitioner as an accused on the allegations that he had purchased the articles, of which the sample had been taken, from the petitioner’s firm and that the same was sold to respondent No. 2 in the same condition, in which it had been purchased by the firm. The application moved by accused No. 2 was taken by the Court for consideration on different dates and ultimately it was reported by the counsel appearing for the aforesaid firm reported that on 8.5.2014 the accused No. 2 Ramesh Kumar proprietor of M/s Karam Chand Mehgna Ram had expired. The Court directed the counsel to produce death certificate, which was accordingly filed on 11.9.2014 and the proceedings against accused No. 2 Ramesh Kumar were dropped on the said date.

6. However, the learned Magistrate abruptly on 27.3.2015 again took up the case for proper orders and heard arguments on .

the application, which had been filed by the deceased Ramesh Kumar and vide impugned order dated 16.11.2015 ordered the petitioner to be arraigned as accused No.3.

7. Aggrieved by the said order of impleadment, petitioner has filed the instant petition assailing the said order on various grounds as taken in the petition.

I have heard learned counsel for the parties and have gone through the records of the case.

8.. At the outset it may be observed that it is not in dispute even by the respondents that Ramesh Kumar, proprietor of M/s Karam Chand Mehgna Ram had died during the pendency of the proceedings and such proceedings has already been dropped against him vide order dated 11.9.2014, as having been abated. It is further not in dispute that his death had occurred prior to there being any effective order or evidence having been led in the application filed by him for impleadment of the present petitioner under Section 20-A of the Act.

9. In such circumstances, the moot question that arises for consideration is as to who was prosecuting the application preferred by deceased Ramesh Kumar and what was the evidence led in support thereof.

.

10. Section 20-A of the Act 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 evidence 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.”

11. The operative portion of the order reads thus:

“Accused No. 2 has placed on record bill No. 70 dated 11.4.2008 of M/s R.K. Trading Company, Gagret, Distt. Una, H.P. and perusal of the same reveals that at Sl. No. 2 quantity 50 i.e. Vanaspati appears to have been sold by M/s R.K. Trading Company, Gagret, Distt. Una, H.P. to accused No. 2. Hence application under Section 16(1)(a)(i) of PFA Act is allowed and M/s R.K. Trading Company, Gagret, Distt. Una, H.P. through its proprietor Sh. Gautam Nayar is arrayed as accused No. 3 in the present case. Application stands disposed of. It be tagged with main case file. Let notice be issued to accused No. 3 for 19-12-2015.”

12. It would be noticed from a perusal of the Section 20-A that power of the Court to implead the manufacturer can be resorted to only once the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence.

.

13. Now what would be the meaning of the ‘evidence’ has been elucidated by Hon’ble Constitutional Bench of Hon’ble Supreme Court in Hardip Singh & Ors vs. State of Punjab and others (2014) 3 SCC 92, wherein it was held as under:-

“59. Before we answer this issue, let us examine the meaning of the word ‘evidence’. According to Section 3 of the Evidence Act, ‘evidence’ means and includes:

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

r (2) all documents including electronic records produced for the inspection of the Court, such statements are called documentary evidence;

60. According to Tomlin’s Law Dictionary, Evidence is “the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.”

61. Bentham defines ‘evidence’ as “any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact- a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.”

62. According to Wigmore on Evidence, evidence represents “any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.”

63. The provision and the above-mentioned definitions clearly suggest that it is an exhaustive definition. Wherever the words “means and include” are used, it is an indication of the fact that the definition ‘is a hard and fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, .

Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369).

64. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., (2003) 1 SCC 433, dealing with a similar issue, this Court observed as under:

“Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the r word as defined.”

65. We, therefore proceed to examine the matter further on the premise that the definition of word “evidence” under the Evidence Act is exhaustive.

66. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC 760, while dealing with the issue this Court held :

“33. The word “evidence” is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-

existence of disputed facts. Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.”

67. In relation to a Civil Case, this court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355, held that the examination of a witness would include evidence-in- chief, cross-examination or re-examination. In Omkar Namdeo Jadhao & Ors v. Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC 331; and Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943, this Court held that statements recorded under Section 161 Cr.P.C. during the investigation are not evidence. Such statements can be used at the trial only for contradictions or omissions when the witness is examined in the court. (See also:

Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252; Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi Administration) v. Laxman Kumar & Ors., AIR 1986 SC 250).

.

68. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that it is evident that a person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge- sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.

69. The majority view of the Constitution Bench in Ramnarayan Mor & Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under:

“9. It was urged in the alternative by counsel for the appellants that even if the expression “evidence” may include documents, such documents would only be those which are duly proved at the enquiry for commitment, because what may be used in a trial, r civil or criminal, to support the judgment of a Court is evidence duly proved according to law. But by the Evidence Act which applies to the trial of all criminal cases, the expression “evidence” is defined in Section 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence.”

(Emphasis added)

70. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat & Anr., JT 2013 (3) SC 328, held that “It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.”

77. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. “

14. Thus, it would be clear from the aforesaid exposition of law that ‘evidence’ within the meaning of the Evidence Act, with regard to documentary evidence would be evidence only if the documents is proved in the manner recognized and provided for .

under the Evidence Act and it is only when the document produced according to law, then it can be called ‘evidence’.

15. Admittedly, in this case, Ramesh Kumar, the sole proprietor of M/s Karam Chand Mehgna Ram had already died as reported to the Court on 8.5.2014 and proceedings against him were dropped on 11.9.2014 as having been abated and, therefore, there was none to prosecute the application, much less, lead evidence in support thereof, more particularly, the Bill No. 70, dated 11.4.2008 alleged to have been issued by the petitioner and to further prove as to whether it was the petitioner alone who had issued the bill or sold the goods mentioned therein or that the goods were the ones, which, in fact, had been sold to M/s Karam Chand Mehgna Ram, who, in turn, sold it to the petitioner. Various other questions have been left un-answered on account of death of Ramesh Kumar and therefore in absence of any evidence having been led on the application filed on behalf of M/s Karam Chand Mehgna Ram to implead the petitioner as an accused and further there being no one to prosecute such application, the trial Court erred in arraigning him as accused.

16. In view of the above, I find merit in this petition and the same is allowed and the order passed by the learned Chief Judicial .

Magistrate on 16.11.2015, arraigning the petitioner as accused No. 3 in the proceedings is quashed and set aside. Pending application(s), if any, stands disposed of.

    May 25, 2017                            (Tarlok Singh Chauhan),
    (Sanjeev)                                          Judge
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