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M.C. Arora and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 374 of 1975
Judge
Reported in1979CriLJ358; 14(1978)DLT17B
ActsPrevention of Food Adulteration Act, 1954 - Sections 20A; Code of Criminal Procedure (CrPC) , 1973 -Sections 482
AppellantM.C. Arora and ors.
RespondentUnion of India and ors.
Advocates: D.C. Mathur,; N.K. Parmar,; K.N. Kataria and;
Cases Referred and Madbu Limaye v. State of Maharashtra
Excerpt:
.....the order of the learned magistrate allowing the application for impleading the company m/s. aggarwal hotels (p) ltd. as an accused and summoning it on the ground that it was concerned with the offence. the respondents had taken a sample of curd from alka hotel, an establishment of the company. the sample wa found to be adulterated. hence the prosecution was launched, but the company was not made a party. later on when it transpired that alka hotel is an establishment of the company, an application under section 20a of the prevention of food adulteration act was made, which was allowed. thereforee, the petitioners filed the present petition under section 482 of the cr. p.c.; that the real purpose of enacting section 20a is to avoid, as far as possible, conflicting findings. in..........dealer was concerned with the offence of sale of adulterated milk and curd by the manager of the alka restaurant on january 23, 1973 to the food inspector. the complainant prayed that aggarwal hotels (p) ltd. be imp leaded as an accused under s. 20-a and be tried along with the other accused.(5) the trying magistrate allowed the application by his order dated 28th august, 1975. it was not disputed before the court below nor before us that alka hotel and restaurant is an establishment of aggarwal hotels (p) ltd. the magistrate, thereforee, took the view that aggarwal hotels (p) ltd. is at least a 'dealer' is curd which was used by its restaurant. he, thereforee, ordered that aggarwal hotels pvt. ltd. be imp leaded as an accused in the case and summons be issued to the said company. (6).....
Judgment:

A.B. Rohatgi, J.

(1) On January 23, 1973, at 9.45 p;m. a food inspector visited the premises of Alka Hotel and Restaurant in Connaught Circus. New Delhi. He purchased toned milk and curd prepared from toned milk from M.C.Arora, manager of the restaurant. Each sample was divided into three pans as required by the Prevention of Food Adulteration Act (the Act), One sample of each of the two articles was sent to the public analyst. The analyst reported that both the samples were adulterated.

(2) The Union of India launched the prosecution against three accused persons (1) M. C. Arora, manager of the restaurant; (2) Alka Hotel and Restaurant, a partnership firm and (3) S. P. Agarwal, the managing partner of the firm Alka Hotel and Restaurant who, it was stated, was in charge of and responsible for the conduct of the business of the firm. The complaint was filed under sections 7, 16 and 17 of the Act.

(3) When the evidence was being recorded by the trying magistrate the accused M. C. Arora made an application to the court for sending the samples of both the articles to the Director of Central Food Laboratory, Calcutta for test analysis. The trial court acceded to the request. The Director certified that the toned milk confirmed to the specified standard. The sample of curd was found to be adulterated and was so certified by the Director.

(4) The prosecution, in the course of the evidence, examined on October 15, 1974, a clerk from the office of Chief Inspector of Shops and Establishment. In his evidence it was revealed that S. P. Aggarwal is the managing director of Aggarwal Hotels Private Ltd. and that Alka Hotel and Restaurant is owned by Aggarwal Hotels (P) Ltd. Consequently on April 9, 1975, the prosecution moved an application under S. 20-A of the Act. In this application, which is the bone of contention before us, the complainant averred 'that in Alka Hotel and Restaurant owned by M/s. Aggarwal Hotels (P) Ltd. the curd (toned milk) in question, could be sold either in that form or with Raita, Dahi Bhalla etc. and thus the Aggarwal Hotels (P) Ltd. was manufacturer and the dealer for the purpose of S. 20-A' of the Act and further that Aggarwal Hotels (P) Ltd. as the manufacturer and dealer was concerned with the offence of sale of adulterated milk and curd by the manager of the Alka Restaurant on January 23, 1973 to the food inspector. The complainant prayed that Aggarwal Hotels (P) Ltd. be imp leaded as an accused under S. 20-A and be tried along with the other accused.

(5) The trying magistrate allowed the application by his order dated 28th August, 1975. It was not disputed before the court below nor before us that Alka Hotel and Restaurant is an establishment of Aggarwal Hotels (P) Ltd. The magistrate, thereforee, took the view that Aggarwal Hotels (P) Ltd. is at least a 'dealer' is curd which was used by its Restaurant. He, thereforee, ordered that Aggarwal Hotels Pvt. Ltd. be imp leaded as an accused in the case and summons be issued to the said company.

(6) On September 22, 1975, the accused M. C. Arora moved an application for review of the order dated August 28, 1975 and discharge of the accused persons. It was said that the order impleading the company was illegal and without jurisdiction. The trying magistrate on October 27, 1975, dismissed the application for review with the observation that the question of discharge would properly be decided after hearing arguments on the question offraming the charge, and not at that stage.

(7) The three original accused persons have challenged, the orders dated August 28, 1975 and October 27, 1975 by this petition under S. 482 of the Code of Criminal Procedure 1973 and Art. 227 of the Constitution of India, and have prayed that these be quashed.

(8) At the very outset it appeared to us that none of the three original accused persons were competent to question the correctness of the order of the magistrate directing the impleadment of Aggarwal Hotels (P) Ltd. If at all the company alone could contest the validity of the order impleading it as an accused and summoning it in court on the ground that it was concerned with the offence alleged. We indicated to the counsel for the accused that on that short ground we were inclined to dismiss the petition. Faced with this difficulty counsel for the petitioners agreed to appear on behalf of Aggarwal Hotels (P) Ltd. also in this petition. He has now filed an application, a power of attorney and a resolution of the company to contest the order of its impleadment in this court. This being so the present petition will now be deemed to have been filed on behalf of Aggarwal Hotel (P) Ltd. also in addition to the three accused persons who appeared as the original petitioners. Accordingly this order will be binding on the company also.

(9) The petition in the first instance came up for hearing before F. S. Gill J. He thought that as questions of general importance arose in the case it was better if the matter is heard and decided by a larger bench. This is how this case has come before us.

(10) Two questions were raised before the learned single Judge. Firstly it was said that the order to implead the company could not be made as S. 20-A had no application to the facts of this case. Secondly it was submitted that s. 20A can be invoked only 'during the trial of any offence under the Act' and trial in this case commences after the charge has been framed. The two questions referred to us in the referring order may be formulated as :

1.What is the scope of S. 20-A and

2.What is the meaning of the term 'trial' as used in the section ?

(11) We shall endeavor to answer these questions in the course of our decision.

(12) Taking the first question first we may at once say that the scope and object of s- 20A has clearly been delineated by the Supreme Court in V. N- Kamdar v. Municipal Corporation of Delhi, 1973 F. A- C. 234(1). The real purpose of enacting s. 20A is to avoid, as far as possible, conflicting findings. In order to avoid multiplicity of proceedings and findings the section enables the court to implead the manufacturer, distributor, dealer whenever the conditions laid down in the section are satisfied. The section is an enabling one. There is nothing mandatory about it. It is left to the discretion of the magistrate whether in a particular case, having regard to the evidence adduced, it is necessary in the interest of justice, to implead the manufacturer, distributor, or dealer as the case may be. In order that the manufacturer, distributer or dealer may be imp leaded under s. 20A it is necessary that there should be a trial for an offence committed under the Act by a person and that the manufacturer, distributor or dealer must be 'concerned with that offence'. When once the manufacturer, distributor or dealer is imp leaded the trial proceeds as if he is also an accused in the case.

(13) Applying these principles to the facts of the present cause what do we find To begin with three persons were accused of the offence under ss. 7, 16 and 17 of the Act. They were (1) M. C. Anora, (2) Alka Hotel and Restaurant (3) S. P. Aggarwal, managing partner of the firm Alka Hotel. It was soon discovered by the prosecution that they were mistaken- It was found that in the eye of law Alka Hotel and Restaurant was not a legal or juristic entity. It was not a partnership firm nor S. P. Aggarwal its managing partner. If there is no firm there can be no partner. The real facts as revealed in evidence are that Alka Hotel and Restaurant is an establishment of Aggarwal Hotels (P) Ltd. which is a company incorporated under the Companies Act and is thereforee a juristic entity. It has also come in evidence that S. P. Aggarwal is the managing director of Aggarwal Hotels Ltd. These are undisputed facts. From these facts it would follow that M. C. Arora, the manager of Alka Restaurant, is the vendor of the article in question. He vended the curd to the food inspector. This was a sale. From this it would further follow that Aggarwal Hotels (P) Ltd., the owner of the establishment of Alka Restaurant, are the dealers in curd. The Company stored the article for sale. This is clear from the evidence adduced in this case. The curd was found stored in a patela in the Restaurant from which the sale was made. Whether Aggarwal Hotels (P) Ltd. are the manufacturers of curd is not clear from the evidence. The company may be manufacturing curd or may be buying from the milkman we do not know. There is no evidence on this. But the evidence does establish that curd was stored for sale in the establishment of the company. We, thereforee, canot say that the company is not a dealer in curd. As dealer they may be selling it in the form of raita or mixed with Dahi Bhallas or curd as such. Nor can it be disputed that in one form or another curd was being sold at the premises of Alka. Now Alka in the eye of law is non-existent. It is an establishment of Aggarwal Hotels (P) Ltd. and, thereforee, on this analysis Aggarwal Hotels are the dealers.

(14) Aggarwal Hotels (P) Ltd. are an incorporated company. A company has no body to be kicked and no soul to be damned. thereforee the director in-charge and responsible to the company for the conduct of the business at the time when the offence was committed can be held liable under s. 17 if the case is proved against the company. (See Mani Bai v. State of Maharashtra, : 1974CriLJ451 ). S. P. Aggarwal is the managing director of Aggarwal Hotel (P) Ltd. and not the managing partner of Alka Restaurant. This is the legal position. And the factual position is also in accord with the legal position.

(15) I find that this precise question was answered by a Division Bench in M/s. Kwality Restaurant v. The State 1974 Fac 192. There, as here, an order joining the company, as co-accused during trial under s. 20A was questioned. The Division Bench upheld the order of joinder. On facts I find this case indistinguishable from the case of Kwality Restaurant. Following that decision I would hold that Aggrawal Hotels (P) Ltd. is a 'dealer' and a dealer can always be imp leaded under s. 20A of the Act during the trial of an offence under the Act provided the offence for which they, the manufacturer, distributor, dealer or vendor, are being tried jointly was committed during the course of the same transaction.

(16) This brings me to the second question : The meaning of the word 'trial' as used in section 20A. Counsel for the petitioner contends that in cases which are tried under Ch. Xxi of Criminal Procedure Code . 1898 i.e. trial of warrant cases, the trial begins only after the charge is framed against the accused. Counsel further contended that as the order under s- 20A was passed before the charge was framed thereforee it was not an order passed 'during the trial'. He referred us to a full bench deeision of Kerala High Court in Food Inspector, Palghat Municipality v. Seetharam Rice and Oil Mill , 1974 Fac 534(4).

(17) The word 'trial' has no fixed or universal meaning, Its meaning has to tie ascertained having regard to the context in which it is used. It is a word which must be considered with regard to the scheme and purpose of the provisions under consideration. (See State of Bihar v. Ram Naresh Pandey, : 1957CriLJ567 . That the term 'trial' has a different connotation in the Criminal Procedure Code is no reason to restrict its meaning in the Prevention of Food Adulteration Act. One statute is no guide for the interpretation of another. Words take their colour from the context. I am, thereforee, inclined to interpret the term 'trial' used in s. 20A in accordance with the known intentions of the legislature i.e. on broad lines and avoiding legal technicalities and subtleties. To limit it to a stage of proceeding after the charge is framed is to frustrate the purpose of s: 20A.

(18) Today the ruling principle of statutory construction is of legislative intention. To find out the intention we must look to the purpose of the statute. Lord Diplock has said :

'TOfind out the meaning of a particular provision in social legislation of this character calls in the first instance, a purposive approach to the Act as a whole to ascertain the social ends it was intended to achieve and the practical means by which it was expected to achieve them'.

(REGv. National Insurance Commissioner (1972) Ac 944 .

(19) We must pay more attention to the object of the section and adopt that meaning of the words under consideration which best accord with it. I would thereforee hold that the words 'during the trial' used in s. 20A do not necessarily refer to a stage of the proceedings after the framing of the charge and that they include an earlier stage also. This view was taken by the Gujarat High Court in Pure Ice Cream (P) Ltd. v. Narindrajeet Singh (1975) 2 Fac 385 , and by M.R.A. Ansari C. J. in Shri Vijai Kumar v. The State (1977) 2 Fac 14. I would prefer the view of Ansari C. J. to the view of the full bench in Kerala decision in Food Inspectors v. Palghat Municipality (supra) and hold that the term 'trial' would include pre-and post-charge stages.

(20) Counsel for the Union of India raised .a preliminary objection to the maintainability of the petition. We were referred to two decisions of the Supreme Court : Amar Nath v. State of Harayana, : 1977CriLJ1891 and Madbu Limaye v. State of Maharashtra, : 1978CriLJ165 . In my opinion the order in question is not an interlocutory order and the revision is competent under s. 397(1), Criminal Procedure Code, 1973. Now the company, Aggarwal Hotels (P) Ltd has come in revision. If we had accepted the plea of the company that would have concluded the proceedings under s. 29A'of the Act.In Madhu Limaye the law was stated in these words:

'......WEfeel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceedings, will surely be not an interlocutory order within the meaning of s. 397(2)'

(21) The order in question may not be final in the sense used in decided cases yet it is not an 'inter-locutory order pure and simple'. We may call it an 'intermediate' order, as termed in Madhu Limaye's case. Describing this kind of 'intermediate' orders the Court said :

'......EVENthough it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec. (2) of s- 397. In our opinion it must be taken to be an order of the type falling in the middle course'.

(22) This is a new approach to a vexed question a question as old as the hills. The truth is that the attempt to include all conceivable orders either under 'final orders' or under 'interlocutory orders' has now been given up. We have now a new category of orders orders of the 'middle course' or 'intermediate' orders. They can be revised if the test laid down is satisfied even if the order is not final. Such orders have always been there but they have wandered about unhoused and unshepherded, except for a casual attention, in the pathless fields of procedure. Now the Supreme Court has recognized them as fit subjects for revision and has given them a local habitation and a name.

(23) Applying Madhu Limaye's case I would rule that the order in question is of an intermediate kind both in rank and quality. I would thereforee reject the preliminary objection and hold revision competent. On merits I find no infirmity in the impugned order and would thereforee dismiss the petition. The trial court shall now proceed with the trial of the case against the petitoner company, M. C. Arora and S. P. Aggrawal in accordance with law.

(24) The accused through their' counsel have been directed to appear before the trial court on 22-5-1978. Records be sent down immediately.


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