1. A sample of ground-nut-oil purchased by the food inspector, Mr. Patil, from the Janata General Stores, Vikhroli, Bombay, having been found to be adulterated, the original accused No. 1 Naik in whose name the licence of the shop stood and accused No. 2, respondent No. 2, Sunderji Meghji Shah, are being tried for having committed an offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the 'Act' in the Court of the Metropolitan Magistrate, 34th Court, Vikhroli, Bombay. Accused No. 1, however, is absconding and the trial is being proceeded with only against accused No. 2.
2. The food inspector was examined before the charge on March 5, 1976. He was cross-examined after the charge on April 19, 1976. During the course of the cross-examination, a cash-memo, exh. 1, was put to the food inspector. The food inspector deposed that the wholesaler mentioned in the cash memo, i.e., M/s. Mukesh Oil Depot, was also being prosecuted for having sold adulterated ground-nut-oil, the sample of which was independently taken by the food inspector. We are now informed that the proprietor of the Mukesh Oil Depot, i.e., the present petitioner, has been discharged in those proceedings, because no adulteration was found in the course of analysis made by the Central Food Laboratory, Calcutta. In cross-examination, the food inspector was definitely asked whether exh. 1 which is the cash-memo was shown to him by the accused No. 2, and he positively stated that exh. No. 1 was not at all shown to him by the accused. There is some dispute about the date which is written on exh. 1. Admittedly, there is some over-writing so far as the number of the month is concerned, as is clear from the evidence of the food inspector himself; because though at one stage he has referred to this bill as dated July 23, 1975, at a later stage of the proceedings, he has referred to this bill as bearing the date April 23, 1975. The food inspector further deposed that the accused had told him that the cash-memo in respect of the ground-nut-oil, a sample from which was purchased by him, was missing and could not be traced. However, he further made a statement that the accused had told him that he had purchased the groundnut-oil in question from Messrs. Mukesh Oil Depot by a cash-memo dated July 23, 1975. He, however, was not able to say whether exh. 1 was the cash-memo in respect of the said oil. Exhibit 1 has a warranty put on it by a rubber stamp as contemplated by Rule 12-A of the Prevention of Food Adulteration Rules, hereinafter referred to as the 'Rules', in Form VI-A.
3. After the cross-examination of the food inspector, the accused No. 2 filed an application stating that the partners of M/s. Mukesh Oil Depot should be joined as co-accused along with him. Now surprisingly in the application the cash-memo, exh. No. 1, is referred to as dated August 23, 1975. In the application it is stated that according to the provisions of Section 20A of the Act, the supplier, i.e., the present petitioner should be impleaded. The prosecution left the matter to the Court. The trying Magistrate, however, read the evidence of the food inspector to indicate that the ground-nut-oil in question was purchased by the accused from Messrs. Mukesh Oil Depot and that the cash-memo, exh. 1, contained the condition of warranty given by the proprietor, Mukesh Oil Depot. Therefore, it has become necessary according to the trial Court to implead the wholesaler, viz., the present petitioner as co-accused. An order was, therefore, made directing that the petitioner shall be impleaded as accused No. 3 and summons shall be sent to him and the case was to proceed after the newly added accused appeared. This order of the trial Court discloses that the joinder of the present petitioner was consequential upon the accused No. 2 trying to invoke the statutory defence which was available to him under Section 19(2) of the Act.
4. After the petitioner appeared in the proceedings, the food inspector was again examined. He was again cross-examined by the accused No. 2, and after the cross-examination of the food inspector, a charge that the petitioner had given a false warranty and therefore he had committed an offence under Section 2(i)(l) read with Section 16(1)(a)(i) of the Act was framed. This charge also indicates that the accused No. 3 was called upon to meet the charge that he had in fact sold an adulterated article of food to the accused No. 2 and had given a false warranty.
5. It is necessary at this stage to refer to the statements made by the food inspector in his cross-examination on which, it appears that the charge was based. Three cash-memos admittedly bearing dates subsequent to the date on which the sample was taken were shown to the food inspector, and the food inspector stated that these memos were shown to him by the accused Sunderji, i.e., accused No. 2, to show as to from whom he usually makes purchases of ground-nut-oil. He further stated that, 'it is true that accused Sunderji had then stated to me that the cash-memo relating to ground-nut-oil in question was not with him then, and he would be able to show me after some days.' The witness further stated that the above cash-memo dated April 23, 1975 was shown to him by the accused two months after July 24, 1975. This statement indicates that exh 1 which is said to be a cash-memo dated July 23, 1975 is referred to by the witness as being dated April 23, 1975, and it was shown to him sometime in September 1975. The witness has, no doubt, further stated that 'this cash-memo dated April 23, 1975 is as regards the then stock of the ground-nut-oil which was then in the shop of Sunderji on the day of sampling, and it has got a condition of warranty as regards the ground-nut-oil, from which I had taken the sample.
6. The petitioner, who has now come to this Court under Article 227 of the Constitution makes a grievance that there was hardly tiny material before the trying Magistrate on which the petitioner could have been joined as a co-accused along with the original accused No. 2. The learned Counsel for the petitioner contends that the order of the trial Court does not show that the Court was satisfied on any evidence adduced before it that the petitioner is in any way concerned with the offence for which the accused No. 2 is being tried. It was stated in fairness by the learned Assistant Government Pleader that it was not possible for him to support the order passed by the trying Magistrate but the order was sought to be supported on behalf of accused No. 2. It was contended by the learned Counsel appearing for accused No. 2 that it was open to the trial Court at any stage of the proceedings to join the wholesalers as the co-accused and the approximate time of purchase of the stock from the wholesaler and the time of sale of the sample to the food inspector was such that the wholesaler was rightly joined as a co-accused. Now, at the outset, it must be stated that the petitioner has not been ordered to be joined as a co-accused by the trial Court on the ground that he had sold the ground-nut-oil to the food inspector on July 23 and the sample from the same oil was taken by the food inspector on July 24, 1975, thus making out a prima facie case that since the groundnut-oil was found to be adulterated when it was purchased by the food inspector, it must have been sold in the same condition on the previous date by the present petitioner. It is obvious from the order of the trying Magistrate and the application made by the respondent No. 2 that the accused No. 2 wanted to take benefit of the statutory defence which was available to him under Section 19(2) of the Act.
7. There is no doubt that when any person, not being the manufacturer, distributor or dealer of any article of food, is being tried for any offence under the Act, a very wide power has been given under Section 20A to proceed against a person with regard to whom the Court is satisfied on evidence adduced before it that such a person, who is a manufacturer, distributor or dealer, is concerned with that offence. But even while exercising the powers under Section 20A of the Act, it is imperative that the Court has to be satisfied on evidence before it that a manufacturer, distributor or a dealer is concerned with the offence for which the trial is being held before it. The satisfaction referred to in Section 20A of the Act must therefore be based on evidence adduced before the Court. Section 20A also implies, therefore, that a Court wanting to exercise its powers under Section 20A must apply its mind to the evidence adduced before it. We were at pains to ascertain from the learned Counsel for the accused No. 2 as to what was the evidence on which the trial Court had come to the conclusion that the petitioner was concerned with the offence for which the accused No. 2 was being tried, and the only answer which was given by the learned Counsel for the accused No. 2 was that he had produced in the cross-examination of the food inspector after charge a cash-memo which the food inspector had deposed contained a warranty as regards the ground-nut-oil from which he had taken the sample. There is no doubt that the food inspector has made such a statement, but it is difficult to see how the food inspector was competent to depose to the fact that the cash-memo, exh. 1, which sometimes has been referred to as dated April 23, 1975 and at another time as dated July 23, 1975, was in respect of the oil from which the sample was taken by the food inspector. The statement made by the food inspector on June 17, 1976 when he was cross-examined by accused No. 2 after the present petitioner appeared in the proceedings was obviously not available to the Magistrate when he decided to issue process to the accused by his order dated April 26, 1976. The statement of the food inspector on the basis of which the present petitioner was joined as an accused came to be made on April 19, 1976. The only material which was before the Magistrate when he decided to issue process against the petitioner was the statement in cross-examination made by the food inspector on April 19, 1976. There the food inspector had positively deposed that 'I cannot say definitely whether the cash-memo, Ex. No. 1, is the same cash-memo by which the present accused had purchased the groundnut-oil in question.' The food inspector was referring to the ground-nut-oil from which the sample was taken by him. There is a further admission by the food inspector that that cash-memo was not shown to him by the accused No. 2 at the time when the sample was taken, as it was missing and could not be traced. Admittedly, no other evidence was tendered by the accused No. 2 who sought to take advantage of the statutory defence made available to him under Section 19(2) of the Act. Section 19(2) of the Act reads as follows:
A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves
(a) 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 is difficult to hold that even prima facie this defence contemplated by Section 19(2) enabling the accused No. 2 to pass on the responsibility for the adulterated oil to his vendor was available by him at the stage at which the petitioner was joined as an accused. There is nothing on record to show as to in what state the accused No. 2 had purchased the oil from the present petitioner. It cannot be disputed at this stage that when the accused No, 2 wanted the petitioner to be joined as a co-accused, it was on the basis that he had sold the oil to the food inspector in the same condition in which he had purchased it, and that he had a warranty in his possession. But before he could ask his vendor, that is, the wholesaler, the present petitioner to be joined as the co-accused, the Court was bound to apply its mind to the question as to whether on the evidence adduced before it, the present petitioner was concerned with the offence for which the accused No. 2 was being tried1. On mere production of a cash-memo with a warranty rubber stamp on it and the bill about the date of which there is some dispute and controversy, it can hardly be said that the Court could be satisfied on this evidence that the petitioner was concerned with the offence for which the accused No. 2 was being tried. Indeed, the order of the learned Magistrate does not on the face of it even show that the provisions of Clause (b) of Section 19(2) were present to his mind. The order of the learned Magistrate does not disclose that he had applied his mind to the material statements made in cross-examination by the food inspector when he was first cross-examined in which there is hardly anything which would establish even prima facie that the stocks from which the accused No. 2 had sold the sample of the ground-nut-oil were purchased on the previous day as is now contended before us.
8. We might not have been inclined to interfere in this matter even if we had found that there was prima facie material today on the basis of which validly a charge could properly be framed against the present petitioner. As already stated, the present petitioner is being charged for furnishing a false warranty. The only evidence which was available to the learned trying Magistrate was the statement made in cross-examination by the food inspector. That statement could not have been read divorced from the statements made earlier in which the food inspector had definitely stated that he was not in a position to say that exh. 1 was in respect of the stocks from which he had taken the sample of groundnut-oil. There is nothing on record which shows that the learned Magistrate has considered the statement of the food inspector dated June 17, 1976 in the light of the earlier statements made by the same food inspector on April 19, 1976 which is directly contrary to the later statement. We are, therefore, of the view that apart from the question that there was not even prima facie case made out by any evidence on record so as to enable the Magistrate to exercise his power under Section 20A of the Act by ordering the petitioner to be joined as the co-accused, even as the record stands today on the solitary statement of the food inspector, a charge for furnishing a false warranty can hardly be validly framed against the petitioner.
9. In the view which we have taken, we must quash the order of the Magistrate issuing the process against the petitioner-accused as also the order framing charge against him. We, however, make it clear that this order will not prevent the Magistrate from exercising his powers under Section 20A if he is satisfied on the basis of any additional material that might be placed on record that the petitioner should be joined as a co-accused in this proceeding.
10. Rule absolute.