A.S. Bains, J.
1. The Fertilizer Inspector, Kapurthala inspected the premises of M/s. Guru Nanak Khad Store at Sultanpur Lodhi on January '11, 1979 and the sample of NPK fertilizer alleged to have been manufactured by the petitioner-Haryana State Co-operative Supply and Marketing Federation Limited(hereinafter called the 'HAFED') is stated to have been drawn by the said Inspector. It is further alleged that the sample was got tested from the Fertilizer Quality Control Laboratory, Ludhiana and was alleged to be found to be sub-standard. Thereafter a complaint was filed by the Chief Agricultural Officer, Kapurthala, in the Court of Judicial Magistrate, Sultanpur Lodhi against the proprietors of Guru Nanak KhadStore, Sultanpur Lodhi and the petitioner under Section 12A of the Essential Commodities Act read with Section 13 (1) (a) of the Fertilizer Control Order 1957, (hereinafter called as the Fertilizer Order). The Judicial Magistrate has summoned the petitioner and the proprietors of the Guru Nanak Khad Store and the proceedings are pending against the petitioner under the aforesaid Fertilizer order. It is against the summoning order that the present petition has been filed under Section 482 of the Cri. P.C. 1973, by the HAFED.
2. Mr. Gill, learned Counsel for the petitioner canvassed that, the act of manufacture of fertilizer in question alleged to be manufactured by the HAFED took place at Tarori, District Kamal, therefore, the Judicial Magistrate at Sultanpur Lodhi has no jurisdiction, to try the petitioner. He relied upon Satinder Singh v. State of Punjab (1982) 9 Cri LT 252 and Nohar Chand Gupta v. State of Punjab (1982) 9 Cri LT 278 (2). It is true that in the aforesaid authorities the view taken is that the Courts where the actual goods are manufactured only have the jurisdiction and not the Court where such manufactured-goods are sold by a retailer or sample taken. But with utmost respect to their Lordships, we do not subscribe to this view. It seems that the Supreme Court authority reported as Bhagwan Das Jagdish Chander v. Delhi Administration : 1975CriLJ1091 , was not brought to their notice. In Cri. Misc. No. 2104-M of 1982, decided by brother B. S. Yadav, J. on June 2, 1982Reported in (1982) 9 Cri LT 334 (Punj & Har) and Cri. Misc. No. 5448-M of 1978, decided by brother Gurnam Singh, J. on December 21, 1979, a contrary view has been taken on the basis of the aforesaid Supreme Court authority and in fact as there was a conflict between four Judges of this Court, this petition was directed to be heard by the Division Bench.
3. Thus the sole point involved for determination in this petition is whether the alleged manufacturer of sub-standard fertilizers can be tried within the jurisdiction of the Court where it is manufactured or a place where it is ultimately sold along with the retailer or the wholesale dealer. According to Mr. Gill counsel for the petitioner so far as the offence of sale is concerned it cannot be said that it becomes an offence by reason of its relation to any other and therefore the provisions of Section 180 Cri. P.C. 1973, would not apply to such an offence, namely; the offence of manufacture of such fertilizer. This argument is misconceived. In Crl. Misc. No. 1473-M of 1982 (Nohar Chand v. State of Punjab) decided on July 28 1982: Reported in (1982) 9 Cri LT 278 (2) by brother C. S. Tiwana, J. the view was based on the judgment of brother S. C. Mital in Crl. Misc. 1158-M of 1981 (Satinder Singh v. State of Punjab) decided on February 24, 1982, Reported in (1982) 9 Cri LT 252 and this decision was given on the basis of an authority of the Gujarat High Court reported as State of Gujarat v. Agro Chemicals and Animal, 1980 Cri LJ 516. It is true that in view of this authority, it lias been held that the manufacturer of,sub-standard fertilizers can only be tried I at the place where the sub-standard fertilizer is manufactured, but if this view is upheld, it will lead to disastrous results. The manufacturers of the sub-standard fertilizer in that Case would jescape prosecution, as the fertilizer manufactured at a place by a manufacturer is sold throughout the country through authorised agents. Each State Government has provided its own enforcement machinery and that machinery has only jurisdiction in its own State. The officers entitled to take sample can only file complaints before the Courts having jurisdiction in their own Slate and not in the other State where the manufacturing has actually taken place. In fact the manufacturer of sub-standard fertilizer actually sells, to the farmers through its authorised dealer or agent and ultimately both are in league with each other to sell the sub-standard fertilizer and the offence thus is related. The manufacturer as well as the dealer can be tried at a place where the consequences of the manufacturing and selling of sub-standard fertilizer had ensued as envisaged in the provisions of Sections 179 and 180 of the Cr. P.C. 1973. In the manufacturing of sub-standard fertilizer at one place and its sale through agents at another place, there is a unity of purpose and design and continuity of action between the manufacturer and the seller in respect of the sale of that substandard fertilizer. Thus the manufacturer can be tried at a place where the sub-standard fertilizer is sold ultimately. Section 23 of the Insecticides Act, 1868 is as follows :-
persons bound to disclose place where Insecticides are manufactured or kept:-
Every person for the time being in charge of any premises where any insecticide is being manufactured or is kept for sale or distribution shall on being required by an Insecticide Inspector so to do, be legally bound to disclose to the Insecticide Inspector the place where the insecticide is being manufactured or is kept, as the case may be.
From the reading of the aforesaid provision, it is plain that every person in charge of a place where insecticide is being manufactured or is kept for sale or distribution, is required to disclose to the Insecticide Inspector the place where the insecticide is being manufactured or is kept as the case may be. Thus the intention of the legislature is. very clear and this section seems to have been inserted for prosecuting the manufacturer also in case the sample seized from the dealer is found to be of a sub-standard quality. In Bhagwan Das Jagdish Chander's case (supra) 1975 Cri Lj 1091 (SC) it was observed as follows (Para 20):-. the activities of the manufacturer, the distributor and the retail seller are sufficiently connected, in a case of sale of an article of food found to be adulterated by a unity of purpose and design, and, therefore, of a transaction, so as to make their joint trial possible in a suitable case. But at the same time, where a joinder of several accused persons concerned with dealing in different ways with the same adulterated article of food at different stages is likely to jeopardise a fair trial, a separate trial ought to be ordered. It is not proper to acquit or discharge an accused person on this ground alone. The ordering of a separate trial, in a case where prejudice to an accused from a joint trial is apprehended, is enough. Indeed, it can, be said that, ordinarily, they ought to be separately tried. But a joint trial of such accused persons is not ab initio illegal. It can take place in suitable cases.
In State of Andhra Pradesh v. Ganeswara Rao : 3SCR297 , it was observed as follows Paras 15, 19 and 20 of : 1975CriLJ1091 :-
What is meant by 'same transaction' is not denned anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the legislature has deliberately left undefined. We have not come across a single decision of any Court which hag embarked upon the difficult task of defining the expression. But, it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.
It was further remarked as follows:-
In our opinion, considering the character of the offence and the nature of the activities of manufacturers and distributors, who generally deal in bulk, and of the ordinary vendor, who sells particular items to the consumer, the common link, which could provide the unity of purpose or design so as to weave their separate acts or omissions into one transaction, has to be their common intention that a particular article found adulterated should reach the consumer as food. Ignorance of the fact of adulteration is immaterial. In order to justify a joint trial of accused their common object or intention to sell the article as food is enough. In such a case of a strict liability created by statute, for safeguarding public health, the mental connection between the acts and omissions of the manufacturer, the distributor, and the last vendor would be provided simply by the common design or intention that an article of food, found to be adulterated should reach and be used as food by the consumer. Each person dealing with such an article has to prove that he has shown due care and caution by taking prescribed steps in order to escape criminal liability. Otherwise, if one may so put it. a mens rea shared by them is presumed from a common carelessness exhibited by them. Again, a sale at an anterior stage by a manufacturer or distributor to a vendor, and the sale by the vendor to the actual consumer could be viewed as linked with each other as cause and effect.
We think that the activities of the manufacturer, the distributor, and the retail seller are sufficiently connected, in such a case of sale of an article of food found to be adulterated, by a unity of purpose and design, and therefore of a transaction, so as to make their joint trial possible in a suitable case.
Thus from the principle of law as laid down in the aforesaid Supreme Court authorities, it is plain that the manufacturer or the distributor or the retail-seller can be tried together in case their activities are sufficiently connected in case of a sale of an article at a place from where the sample was seized and was found sub-standard. The activities of the manufacturer, the distributor and the retail seller are sufficiently connected in a case of a sale of a sub-standard fertilizer by a unity of purpose and design and thus their joint trial is possible in a case where the sub-standard article was found to be sub-standard. These authorities, as observed earlier were not brought to the notice of brothers S. C. Mital and C. S. Tiwana, JJ.
4. The answer to the aforesaid question is rendered in the affirmative and we hold that the Court at Sultanpur Lodhi has the jurisdiction to try the manufacturer, that is, the petitioner.
5. It was also urged by Mr. Gill that there is no allegation in the complaint against the petitioner. We have perused the complaint and in the complaint the allegations against the petitioner are there in the following terms:-
The sample of NPK 15.15.7 had been found sub-standard on analysis and M/s. Guru Nanak Khad Store Sultanpur have committed an offence under Section 13 (1) (a) Fertilizer Control Order read with Section 12A of Essential Commodities Act for keeping and selling such sub-standard and adulterated (article) at their premises and HAFED Tarori District Karnal has committed the same offence of Fertilizer Control Order read with Section 12A of Essential Commodities Act for manufacturing sub-standard fertilizer at his plant and its further supply to the said property
6. Lastly, it was canvassed that the sample was seized in the year. 1979 and about four years have passed and the matter may be dropped. We are not impressed with this also. No doubt the sample was taken in Dec. 1978 but it takes some time for the analysis. The complaint was filed in the Court in the year 1979. This is hardly any ground for quashing the proceedings.
7. It is really sad that every article is being adulterated whether it is an article of food or the article used for the agricultural purposes or it is a medicine and the adulteration of food and non-food articles, has reached the saturation point after 35 years of attaining Independence. It is high time that the State must take some special measures to eradicate adulteration. It may consider the constituting of a machinery at a State level under the charge of an officer with missionary zeal. Some such measures should be taken that the Inspectors in whose jurisdiction any adulteration is found may also be vicariously made liable.
8. In the result no case is made out for invoking the powers under Sections 482 of the Cr. P.C. 1973. The petition fails and is hereby dismissed.