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Municipal Corporation of Delhi and anr. Vs. Laxmi NaraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 8 of 1969
Judge
Reported in1973CriLJ690; 8(1972)DLT1; ILR1970Delhi771
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 177, 234 and 239; Prevention of Food Adulteration Act, 1954 - Sections 11, 19(3), 20 and 20A
AppellantMunicipal Corporation of Delhi and anr.
RespondentLaxmi NaraIn and anr.
Advocates: T.C.P. Lal,; F. Anthony,; D.R. Sethi,;
Cases ReferredMangaldas RaghavjiRuparel v. Maharashtra State
Excerpt:
(i) criminal procedure code - sections 234 to 239--joint trial of vendor, distributor and manufacturer of an adulterated food article under food adulteration act, 1954--legality of.; that the joint trial of the vendor, the distributor and the manufacturer under the prevention of food adulteration act, 1954 is not illegal.; the prevention of food adulteration act is a special act which prescribes no procedure for the trial of offences under the act. hence, offences committed under the act have to be tried according to the provisions of the criminal procedure code subject, of course, to certain provisions of the act, like sections 19(3), 20 and 20a of the act. ; section 239 of the code provides for joint trial of more than one person in cases to which clauses (a) to (f) of that section.....m.r.a. ansari, j.(1) this judgment will dispose ofcriminal appeal no. 8 of 1968, criminal appeal no.9 of 1968, criminal revisions nos. 7 of 1967, 287 of 1967,66 of 1968, 72 of 1968, 73 of 1968, 78 of 1968, 5 of 1970,18 of 1970, 426 of 1968 and 544 of 1969.the common questions that arise for determinationin all these cases are:- (i)whether a joint trial of the vendor, thedistributor and the manufacturer for offencesunder the prevention of food adulterationact, 1954 is illegal? and (ii)what is the scope of section 20a of the saidact? (2) the facts of each of the cases may be briefly stated:in criminal appeals nos. 8 and 9 of 1968, the municipal corporation of delhi filed a complaint againsttwo persons, namely, (1) laxmi narain, partner of m/slaxmi sweets, shop no. e-149-150, kamla nagar,.....
Judgment:

M.R.A. Ansari, J.

(1) This judgment will dispose ofCriminal Appeal No. 8 of 1968, Criminal Appeal No.9 of 1968, Criminal Revisions Nos. 7 of 1967, 287 of 1967,66 of 1968, 72 of 1968, 73 of 1968, 78 of 1968, 5 of 1970,18 of 1970, 426 of 1968 and 544 of 1969.The common questions that arise for determinationin all these cases are:-

(I)Whether a joint trial of the vendor, thedistributor and the manufacturer for offencesunder the Prevention of Food AdulterationAct, 1954 is illegal? And

(II)What is the scope of section 20A of the saidAct?

(2) The facts of each of the cases may be briefly stated:In Criminal Appeals Nos. 8 and 9 of 1968, the Municipal Corporation of Delhi filed a complaint againsttwo persons, namely, (1) Laxmi Narain, Partner of M/sLaxmi Sweets, shop No. E-149-150, Kamla Nagar, Delhiand (2) M/s. Bhagwan Dass Jagdish Chander, GheeMerchants and Commission Agents, Khari Baoli, Delhi,under sections 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). LaxmiNarain was prosecuted for selling 450 grams of ghee tothe Food Inspector on 22/8/1967 which, on examinationof the sample by the Public Analyst, was found to beadulterated. M/s. Bhagwan Dass Jagdish Chanderwere prosecuted for selling the same ghee to M/s. LaxmiSweets under an alleged warranty. After the prosecutionevidence was closed, and the accused were examinedunder section 342 Criminal Procedure Code one of them,namely, Laxmi Narain, filed an application praying thatthe warrantor might be discharged or acquitted so thathe might examine him (the warrantor) as a defense witnessto prove that he had sold the ghee to him under a warranty.The learned Magistrate was of the view that if the warrantor was not discharged or acquitted, Laxmi Narainaccused would be deprived of a valuable plea in defensewhich he had as a right to raise under section 19(2) ofthe Act. He drew support for this view from a decisionof the Punjab High Court in V.N. Chokra v. The State, A.I.R. 1966 Pun 4210. The learned Magistrate, thereforee, acquitted the firm M/s. Bhagwan Dass JagdishChander and proceeded with the trial of Laxmi Narainalone. Jagdish Chander, Partner of M/s. Bhagwan DassJagdish Chander, was examined as D.W.I and he admittedthat he had sold the ghee to M/s. Laxmi Sweets undera warranty. Laxmi Narain also gave evidence under section 342A of the Code of Criminal Procedure. Onthe strength of this evidence, the learned Magistrateacquitted Laxmi Narain also. The Municipal Corporation has filed these appeals against the acquittal of LaxmiNarain and M/s. Bhagwan Dass Jagdish Chander.It may also be stated that after acquitting M/s. BhagwanDass Jagdhish Chander first and Laxmi Narain next,the learned Magistrate imp leaded M/s Gauri ShankerPrem Narain, the manufacturer of the ghee, under section 20A of the Act. But we are not concerned inthe present appeals with the prosecution of the manufacturer.

(3) In Criminal Revision No. 7 of 1967, the MunicipalCorporation filed a complaint against five persons,namely, (1) Kidar Nath Jain, (2) M/s. Puran Chand &Sons;, (3) M/s. Kanahya Lal Kishori Lal, (4) R.K. Marwahand (5) M/s. Chaudhary Dairies and Allied Products,Ghaziabad. Accused No. 1 is a partner of M/s. PuranChand & Sons, accused No. 2, and it was alleged thaton 25-11-1965, he had sold condensed sweetened fullcream milk, Slm Brand, to the Food Inspector, which,on examination by the Public Analyst, was found tobe adulterated. Accused No. 3 was the distributor,who bad sold the said milk to accused No. 1 and accusedNo. 4 was the salesman of M/s Chaudhary Dairiesand Allied Products, Ghaziabad, accused No. 5, whomanufactured the said food articles. All these fivepersons were prosecuted for an offence under sections 7/16 of the Act. During the course of the trial, accusedNo. 5, M/s. Chaudhary Dairies & Allied Products, filedan application objecting to a joint trial with the vendorand the warrantor. No orders appear to have beenpassed by the learned Magistrate on this application.Therefore, a revision petition was filed in the Court ofthe Additional Sessions Judge, Delhi, and the latterhas submitted his report to this Court with the recommendation that the joint trial should be quashed. Hisrecommendation is based on the decision of the PunjabHigh Court in V. N. Chokra's case.

(4) In Criminal Revision No. 207 of 1967, the MunicipalCorporation filed a complaint against (1) Bansi Lal,Partner of M/s. National General Store. Shop No. 901,Qutab Road, Delhi, (2) M/s. National General Storeand (3) M/s Healthways Dairy Products Co. (Regd.)through Daulat Ram Sharma. Accused Nos. 1 and 2were prosecuted for selling condensed milk to the FoodInspector on 17-10-1966 which, on examination, wasfound to be adulterated and the 3rd accused was prosecuted for manufacturing the said milk. A chargewas framed by the learned Magistrate against the threeaccused for an offence under sections 7/16 of the Act thereupon, M/s Healthways Dairy Products Co. preferred a revision petition before the Additional Sessions Judge, Delhi, and in this revision petition, an objectionwas taken against the joint trial of the vendor and themanufacturer. Following the decision of the PunjabHigh Court in V.N. Chokra's case and an unreporteddecision of this Court in Peary Lal Gupta v. State,Criminal Revision No. 3 of 1967, decided on 9/03/1967 the learned Additional Sessions Judge, Delhi,has submitted a report to this Court with the recommen-dation that the joint trial of the vendor and the manufacturer should be quashed.

(5) In Criminal Revisions Nos. 66 and 72 of 1968 the,Municipal Corporation filed a complaint against (1)Chela Ram and (2) H.U. Laukhani with the allegationsthat the former had sold edible coconut oil to the FoodInspector on 29-5-1965 which, on examination by thePublic Analyst, was found to be adulterated and thatthe latter had sold the said food article to Chela Ramunder a warranty. During the trial, Laukhani madean application objecting to his joint trial with the vendor.The said application was dismissed by the learned Magistrate and a revision petition was filed before the Additional Sessions Judge, Delhi, by Shri Laukhani. Thelearned Additional Sessions Judge has sent a report tothis Court with the recommendation that the joint trialbe quashed. In making this recommendation, the learned Additional Sessions Judge has relied upon the decisionof the Punjab High Court and of this Court in the casesalready cited.

(6) In Criminal Revision No. 73 of 1968, the MunicipalCorporation filed a complaint against four persons,namely, (1) Kishan Chand, (2) Daulat Ram, (3) H.U.Laukhani and (4) M/s. Ahmed Umar Bhai, Prop. A..O.Ahmed Mills, Bombay. Accused No. 1 is alleged tohave sold edible coconut oil to the Food Inspector on18-5-1965 which, on examination, was found to be adulterated and accused No. 4 is alleged to have manufacturedand sold the same to accused No. 1 under a warranty.During the trial, accused No. 4 filed an application objecting to his joint trial with the vendor. This applicationwas dismissed. He thereupon filed a revision petitionbefore the Additional Sessions Judge and the latter hassubmitted a report to this Court with the recommendation that the joint trial should be quashed. In makingthis recommendation, the learned Additional Sessions Judge has relied on the two decisions already cited.

(7) In Criminal Revision No. 79 of 1968, the MunicipalCorporation filed a complaint against (1) Kirti KumarVadi Lal Vohra, (2) M/s. J. Chitranjan Lal, (3) M/s.Moti Lal Girdhari Lal and (4) M/s. Ravalgaon SugarFarm Ltd. The first two persons were prosecuted forselling confectionary to the Food Inspector on 27-1-1967which was found to be adulterated. The third accusedwas prosecuted for selling the said confectionary to the2nd accused under a warranty and the 4th accused wasprosecuted for manufacturing the said food article.Before the trial commenced, the 3rd and the 4th accusedfiled an application objecting to their joint trial with thevendor. This application was dismissed. A revisionpetition was thereupon filed before the AdditionalSessions Judge and the latter has submitted a report tothis Court recommending that the joint trial be quashed.In doing so, he has followed the two decisions alreadycited. The learned Additional Sessions Judge has alsoexpressed the view that the trial Court had no territorialjurisdiction the try to 4th accused as the food article wasmanufactured in the State of Maharashtra.

(8) In Criminal Revision No. 5 of 1970, the MunicipalCorporation filed a complaint against (1) Prem Sagar,(2) M/s. A..L. Chaudhary & Co., (3) M/s. Delhi Cloth& General Mills Co. Ltd., (4) M/s. Bharat Ram CharatRam (Pvt.) Ltd., and (5) Bansi Dhar, Director in chargeof accused No. 4-company. Accused No. 1 was prosecuted for selling confectionary to the Food Inspectoron 22-12-1966 which, on examination, was found to beadulterated. The 2nd accused was prosecuted for selling the said article to accused No. 1 under a warranty.Accused Nos. 3, 4 and 5 were prosecuted for manufacturing the said food article. Accused Nos. 2 to 5 raisedan objection before the learned Magistrate against theirjoint trial with the vendor. This objection was upheldand the learned Magistrate discharged all the accusedexcepting No. 1 on 27-2-1968. Subsequently, however,the successor Magistrate imp leaded these four accusedunder section 20A of the Act. These four accused, thereupon, filed objections against the said order of the learned Magistrate impleading them under section 20A ofthe Act, but these objections were overruled. Thereupon, they filed a revision petition before the learnedAdditional Sessions Judge and the latter has submitteda report to this Court with the recommendation thatthe order of the learned Magistrate under section 20A of the Act be quashed and that these four accused shouldbe discharged on the ground that they had earlier beendischarged on 27-2-1968.

(9) In Criminal Revision No. 18 of 1970, the MunicipalCorporation filed a complaint against (1) Shiv Narain,Partner of M/s. Kundan Lal Juneja & Co., (2) M/s.Kundan Lal Juneja & Co., (3) M/s. Haveli Ram Sahney& Sons and (4) M/s Mohan Meakin Breweries Limited.The first two accused were prosecuted for selling cornflakes to the Food Inspector on 28-11-1968 which werefound to be adulterated. The third accused was prosecuted for selling the said food article to accused No. 2under a warranty and the 4th accused was prosecutedfor manufacturing the said food article. Charges wereframed against all the four accused. Thereupon, ShivNarain filed a revision petition before the AdditionalSessions Judge, Delhi, and in this revision petition, beobjected to joint trial with the distributor and the manufacturer. His objection was upheld by the learned Additional Sessions Judge and he has recommended to thisCourt that the joint trial be quashed and that the learnedMagistrate should be directed to proceed against the petitioner and his firm separately from the others.

(10) In Criminal Revision No. 426 of 1968, the MunicipalCorporation filed a complaint against Gian Singh forselling coloured confectionary of sugar at shop No. 27,Sunder Nagar Market, Delhi, on 16-7-1966 which wasfound to be adulterated. During the trial, evidencewas adduced on behalf of the accused that he had purchased the food article from M/s. Jay Son and Co.,the distributors of the said food article under a warranty,and also that the said food article was manufacturedby Daurala Sugar Mills. On the strength of this evidence,the learned Magistrate acquitted accused Gian Singh andpassed an order under section 20A of the Act impleading(1) Shri Naresh Narain, Salesman, Delhi Cloth Mills,Delhi, (2) Jay Son and Co., (3) R. Sahai General Manager,Daurala Sugar Mills, and (4) Delhi Cloth and GeneralMills Ltd.. as accused in the case. These accused raiseda preliminary objection before the learned Magistratethat their prosecution under section 20A of the Act wasillegal. The objection was over-ruled. A revision petition was then filed before the Additional Sessions Judge,but the same was also dismissed. One of the accused,namely, R. Sahai, has now filed the present revision petition in this Court.

(11) In Criminal Revision No. 544 of 1969, the MunicipalCorporation filed a complaint against (1) Kanshi Ramand (2) M/s. New Grand Bakery, of which he was partner,for selling hard boiled sugar confectionary which wasfound to be adulterated. During the course of trial,evidence was adduced on behalf of the accused to provethat the food article in question had been sold to the accused by M/s. J. Chitranjan & Co., the distributorsof the said article under a warranty. Thereupon, thelearned Magistrate passed an order under section 20A of the Act impleading the said firm as well as itspartners as co-accused in the case. The latter filed anapplication before the learned Magistrate objecting totheir joint trial with the vendor. The application wasdismissed. A revision petition was filed before theAdditional Sessions Judge' which was also dismissed.Thereupon, they have filed the present revision petitionin this Court challenging the order of the learned Magistrate under section 20A of the Act.

(12) We shall now proceed to consider whether the jointtrial of the vendor, the manufacturer, the distributorand the dealer is illegal. The Prevention of Food Adulteration Act is a special Act which prescribes no procedurefor the trial of offences under the Act. Hence, offencescommitted under the Act have to be tried according tothe provisions of the Criminal Procedure Code (hereinafter referred to as the Code) subject, of course, tocertain provisions of the Act, like sections 19(3), 20 and 20A of the Act. The normal rule is that for every distinct offence, there should be a separate charge and aseparate trial. There are, however, exceptions to thisgeneral rule and these exceptions are conta.ined in sections 234 to 239 of the Code. Section 239 of the Code providesfor joint trial of more than one person in cases to whichclauses (a) to (f) of that section apply. A vendor, amanufacturer, a distributor and a dealer of an adulteratedfood article may be jointly tried for offences committedby them under the Act if their case comes within the scopeof the relevant clauses of section 239, viz., clauses (a) to(d) of that section. In the cases before us, it cannot besaid that such a joint trial is permissible under clauses(a), (b) or (c) of that section. The act of the vendor inselling the article of food, the act of the distributor inselling the said article to the vendor and the act of themanufacturer in selling the said article to the distributordo not constitute the same offence but constitute differentoffences, although punishable under the same section ofthe Act. The distributor, the manufacturer and thedealer cannot also be said to abet the sale of the articleby the vendor nor can it be said that the vendor, the distributor, the dealer and the manufacturer have jointlycommitted the offence. The joint trial of the vendorand the manufacturer etc. is permissible, if at all, underclause (d) of section 239 of the Code. The question iswhether the vendor and the manufacturer etc., have committed different offences in the course of the same transaction.

(13) The words 'same transaction' have not been definedin the Code and in the word of Mudholkar J. in TheState of Andhra Pradesh v. Cheemalapati GaneshwaraRao and another, : [1964]3SCR297 'it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberatelyleft undefined'. The learned Judge has, however, referred in the same case to the following tests which aregenerally applied to determine whether or not a seriesof acts from part of the same transaction:-

'WHEREthere is proximity of time or place or unityof purpose and design or continuity of action in respect of a series of acts, it may be possible to inferthat they form part of the same transaction It is,however, not necessary that every one of theseelements should co-exist for a transaction to beregarded as the same. But if several acts committed by a person show a unity of purpose or designthat would be a strong circumstance to indicate thatthose acts form part of the same transaction.'

(14) Can it be said that there was unity of purpose and designin respect of the sale by the vendor of an adulteratedarticle of food, the sale of the said article by the distributor to the vendor and the sale of the said article by themanufacturer to the distributor? We are of the view thatthe answer should be in the affirmative. The commonpurpose of the vendor, the distributor and the manufacturer is the sale of the article of food to the consumer.It is not necessary that they should have the commonintention of selling and adulterated article of food or eventhat they should have knowledge that it was adulterated.Mens read is not a necessary ingredient in offences underthe Act and the Act creates an absolute liability againstthe vendor, the distributor and the manufacturer forsale of an adulterated article of food. As observed bythe Supreme Court in Andhra Pradesh Grain and SeedMerchants Association v. Union of India, : 1971CriLJ1556

'IT is true that for the protection of the liberty ofthe citizen, in the definition of offences, blameworthy mental condition is ordinarily an ingredienteither by express enactment or clear implicationbut in Acts enacted to deal with a grave social evil,or for ensuring public welfare, especially in offencesagainst public health, e.g., statutes regulatingstorage or sale of articles of food and drink, saleof drugs, sale of controlled or scarce commodities,it is often found necessary in the larger publicinterest to provide for imposition of liability without proof of a guilty mind.'

(15) When a manufacturer produces an article of foodwhich is adulterated, his purpose is to sell it. Likewise,when the distributor obtains that article from the manufacturer, his purpose is the same till the article ultimatelyreaches the consumer. Thus one common purposeprevades throughout this chain of events. On behalf ofthe distributors and the vendors, it is argued that whenthey acquire an article of food from a manufacturer,their purpose is not to acquire an adulterated article.It is a different matter that the article when distributedor sold may turn out to be adulterated. Their purpose,is, thereforee, not the same as that of the manufacturereven if it is found that the latter produced an article withfull knowledge of its being adulterated. In anything,the distributor and the 'vendor should normally be atcross purposes with one another. The argument iswholly fallacious as it postulates the existence of acommon intention or common object as the foundationof the charge for an offence under the Act which, aswe have seen, is not the case. That unity of purposecan, in our opinion, be predicated only if before theprosecution is launched, there is material to show theconnection of the manufacturer and the distributorwith the particular article of food which on analysishas been found to be adulterated. If this test is satisfied, then there would be unity of purpose and designbetween the vendor, the distributor and the manufacturerin respect of the sale of the article of food and theseseries of acts would form part of the same transactionand there can be a joint trial of these persons under section 239 of the Code. In our view, this test is satisfiedin all the cases before us.

(16) An objection is, however, raised against such jointtrial on the basis of section 177 of the Code accordingto which every offence shall ordinarily be inquired intoor tried by a Court within the local limits of whose jurisdiction it was committed. It is contended that theoffences committed by the vendor, the distributor andthe manufacturer were not committed within the jurisdiction of the same Court but of several Courts. IT is pointed out that in the cases before us, the sale by thevendor had taken place in Delhi but the sale by the manufacturer had taken place in a different State. Thisobjection overlooks the significance of the word 'ordinarily' appearing in section 177 of the Code. Thisword has been held to mean 'except where providedotherwise in the Code or by any special law'. In Purshottamdas Dalmia v. State of West Bengal, : 1961CriLJ728 it has been held that the provisions of sections 233 to 239 of the Code provide exceptionsto section 177 and that they do permit the trial of aparticular offence along with others in one Court. thereforee, the vendor and the manufacturer etc., may bejointly tried under section 239 of the Code in the sameCourt notwithstanding the provisions of section 177 ofthe Code.

(17) Another objection to such joint trial has been raisedon the basis of section 20 of the Act which requires thewritten consent of the Central Government or the StateGovernment or a local authority or a person authorisedin this behalf by general or special order by the CentralGovernment or the State Government or a local authoritybefore a prosecution is instituted against any person foran offence under the Act. It is contended that the consent required under section 20 of the Act should be of theauthority which has jurisdiction over the area in whichthe offence is committed by the vendor or the manufacturer etc., and that in the cases before us, the complaintwas filed only by the authority having jurisdiction overthe area where the offence was committed by the vendoralone. We are unable to accept the construction soughtto be put upon section 20 of the Act. The Court getsjurisdiction to try the offences when a complaint is filedunder section 20 of the Act. Such a complaint hasnecessarily to be filed by the authority which under section 20 of the Act has jurisdiction over the area inwhich the Court is located. The primary offence whichthe Court tries is the sale of an adulterated article of foodby the vendor. In case the identity of the article thatis claimed by the complainant to be adulterated, is notin doubt and there is material to establish the connectionof the manufacturer and the distributor with the particular article sold by the vendor, the offences committedby the dealer, the distributor and the manufacturer arein the nature of offences committed in the course ofsame transaction as the offence committed by the vendor.Therefore, the authority which is competent to file acomplaint against the vendor is also competent to filea complaint against the manufacturer, the distributorand the dealer also.

(18) While a joint trial of more than one person is permissible under section 239 of the Code, the Court is notbound to have a joint trial of such persons if such atrial is otherwise not proper in the interest of justice.It is contended on behalf of the petitioners in these casesthat a joint trial of the vendor and the manufactureretc., would cause prejudice to them inasmuch as they willbe deprived of the valuable plea of defense which is givento them by section 19(2) of the Act. In support of thisargument, reliance is placed on a decision of the PunjabHigh Court in V.N. Chokra v. State, and on an unreported decision of thisCourt in Peary Lal Gupta v. State, Criminal RevisionNo. 3 of 1967 decided on 9/03/1967 O.

(19) The facts in V.N. Chokra's case may be briefly stated.The Food Inspector purchased 600 grams of suji fromPashori Lal, a grocer of Paprola. This sample wastaken from a closed bag containing 2 mds. 17 seers ofsuji bearing the name of the Jawala Flour Mills, Amritsar.The sample was found to be adulterated. A complaintwas filed both against Pashori Lal as well as against theJawala Flour Mills. In answer to the summons issuedto the Mills, an Accountant of the Mills appeared beforethe Magistrate, but the latter refused to recognise him asrepresenting the accused-Mills. Subsequently, theManager of the Mills appeared before the Magistrate,but the latter again refused to recognise the Manager alsoas representing the accused Mills. Thereupon, a revisionpetition was filed in the Sessions Court by the Managerand the Sessions Judge recommended the quashing ofthe proceedings against the Mills on the ground that thecomplaint neither disclosed any offence against the Millsnor any ground which would give the Court at Dharamsala jurisdiction to try a company carrying on businessat Amritsar. The High Court accepted this recommendation and quashed the proceedings against JawalaFlour Mills on the ground that the complaint did notdisclose any offence against the firm or company andthat obviously it was necessary in such a complaintto state that suji from which the sample was taken wassupplied by the firm or the company to Pashori Laland also that this was done at Paprola in order to givethe local Court some jurisdiction in the matter. Thisfinding of the learned Judge should have been sufficientto dispose of the case but he proceeded to make the following observations:-

'ITseems to me that there is no justificationfor the prosecution of a person, firm or companywho is alleged to have supplied goods to the dealerfrom whom the sample is actually purchased bythe Food Inspector in the same trial as the dealerfrom whom the sample was taken. As far as I cansee the only section which brings a third party intothe matter when an adulterated sample has beentaken is S. 19, the relevant portion of which reads.'

(20) The learned Judge quoted the relevant portion of section 19 as it then stood before its amendment by Act 49 of1964. After quoting the section, the learned Judgeproceeded to observe as follows:

'FROMthis it would appear that the firmor company could only have been brought intothis case at all after Pashori Lal accused whoactually sold the adulterated suji, had set up thedefense contemplated in S. 19(2) and compliedwith the other provisions of the sub-section,and in my opinion the question of prosecutingthe present firm or company which is alleged tohave given a warranty could only arise after thetrial of the actual vendor had concluded with asuccessful defense by him under the provisions of S. 19(2) and the supplier of the goods to theactual vendor had been heard.'

(21) The facts of Peary Lal Gupta's case may now bebriefly stated. The Food Inspector purchased a sampleof Kesari Haldi from one Roshan Lal which was laterfound to be adulterated. A complaint was, thereforee,filed against Roshan Lal, the vendor and Peary Lal Guptawho was alleged to have manufactured the adulteratedarticle of food. The latter filed an application beforethe trial Court for quashing the prosecution againsthim on the ground that the law did not provide for theimpleading of the manufacturer as an accused with thevendor. This application was rejected. A revisionpetition was then filed before the Additional Sessions Judge and it was contended before him that in case amanufacturer was imp leaded as an accused with thevendor the latter would be deprived of his valuabledefense under section 19(2) of the Act. The learnedAdditional Sessions Judge agreed with this contentionand held that the scheme of the Act seemed to be infavor of the contention, that there should be separatecomplaints against the manufacturer and the vendorand that both of them should not be imp leaded asaccused in one complaint. He, thereforee, submitteda report to the High Court with the recommendationthat the prosecution against Peary Lal Gupta be quashed.The recommendation was accepted and the proceedingsagainst Peary Lal Gupta were quashed following thedecision in V.N. Chokra's case. We may add that inPeary Lal Gupta's case, there was no discussion of thevarious points involved in the case and the correctnessof the decision in V.N. Chokm's case was not questioned.

(22) With the greatest respect to the learned Judges, whohave decided the above cases, we find ourselves unableto agree with the views expressed by them and we proceedto state our reasons. As already stated, V.N. Chokar'scase was decided under the Act before its amendmentin 1964 which re-cast section 19 of the old Act. Oneof the material changes is the omission of the firstproviso to section 19(2) of the old Act. Under thisproviso, the defense under section 19(2) was open to thevendor only if he had submitted to the Food Inspectoror the local authority a copy of the warranty with awritten notice staling that he intended to rely on it andspecifying the name and address of the person from whomhe received it and had also sent a like notice of his intention to that person. The omission of this provisoin the present section 19 is significant and it means thatthe vendor is not required, to notify the Food Inspectorabout the warranty or to give any notice to the warrantor.Under section 14A of the new Act, the vendor is requiredto disclose the name and address of the warrantor onlyif he is required to do so by the Food Inspector. under section 19 before its amendment, a warrantor wouldget notice from the vendor and if he wanted to challengethe defense raised by the vendor, he was entitled under section 19(3) of the Act to give evidence against thevendor and in protection of his own interests. Butafter the amendment of section 19, a warrantor wouldhave no opportunity to protect his interests if the vendoralone is prosecuted and he throws the blame upon him.The impleading of the warrantor along with the vendorand their joint trial would, thus, afford an opportunityto the warrantor to prove either that he did not give thewarranty to the vendor or that the vendor had tamperedwith the article of food after he had received it from thewarrantor. Section 19 in its present form, thereforee,does not justify the view that the warrantor could beprosecuted only after the vendor had successfully provedthe warranty under section 19(2) of the Act.Section 19, as it now stands, is in the following terms:

'19.(L)It shall be no defense in a prosecutionfor an offence pertaining to the sale of anyadulterated or misbranded article of food toallege merely that the vendor was ignorant ofthe nature, substance or quality of the food soldby him or that the purchaser having purchasedany article for analysis was not prejudiced bythe sale.

(2)A vendor shall not be deemed to havecommitted an offence pertaining to the sale ofany adulterated or misbranded article of food ifhe proves -

(A)that he purchased the article of food .-(i) in a case where a license is prescribedfor the sale thereof, from a duly licensemanufacturer, 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 soldit in the same state as he purchased it.

(3)Any person by whom a warranty as isreferred to in section 14 is alleged to have beengiven shall be entitled to appear at the hearing andgive evidence.'

(23) The word 'vendor' is not defined in the Act and IT is used in the Act sometimes as including the manufacturer, the distributor and the dealer of anarticle of foodand sometimes to exclude these persons, in section 10 of the Act the word 'vendor' has been used so as toinclude the manufacturer, distributor and the dealer also.In section 14 of the Act, however, the word 'vendor'has been used as being distinct from the manufacturer,the distributor or the dealer. It is obvious that in section 19(2) also, the word 'vendor' has been used so as notto include the manufacturer, the distributor or the dealer.Therefore, the plea which is available under section 19(2), is a plea available only to the 'vendor' and not to themanufacturer, the distributor or the dealer. Thus, thelatter categories of persons cannot make a legitimategrievance of the fact that in a joint trial with the vendor,they will be deprived of the plea which is available toa vendor under section 19(2) of the Act. So far as thevendor himself is concerned, it appears to us that he couldsuccessfully put forth the plea under section 19(2) ofthe Act and that he could prove the license referred toin sub-clause (i) or the warranty referred to in sub-clause(ii) even otherwise than by examining the licensseeor the warrantor as the case may be. The license ofthe manufacturer, distributor or the dealer, can be proved by examining the concerned person from the officewhich had issued the license to the manufacturer, distributor and the dealer. In the case of a warranty, theprimary evidence will be the document itself under section 62 of the Evidence Act and it would be sufficientif the vendor produces the warranty before the Court,the genuineness of which need not necessarily be provedby the evidence of the manufacturer alone. There canbe several other ways of proving the same.

(24) Even if the warranty may be proved by examiningthe warrantor himself, it does not follow that a vendorcan under all circumstances insist on examining thewarrantor as a witness. If the warrantor is also prosecuted for an offence under the Act in respect of thesame article of food and is being tried jointly with thevendor or separately, the vendor may examine thewarrantor only if the latter is willing to give evidence.His joint trial will not stand in the way of his givingevidence, because section 342A of the Code will enablehim to give evidence on oath in disproof of the chargesmade against him or any person charged together with him at the same trial. If, on the other hand, the warrantor is not willing to give evidence in favor of thevendor, because such evidence may incriminate thewarrantor himself, then he cannot be compelled to giveevidence, because he will be protected by Article 20(3)of the Constitution. The vendor cannot then say thatthe warrantor shall not be prosecuted at all. At thatrate, a person accused of any offence can always insistthat a co-accused should be discharged or acquitted onthe ground that he wants to examine him as a witness.A vendor can exercise the right given to him under section 19(2) of the Act only within the limitation imposedby law.

(25) Section 19(3) of the Act confers a right not on thevendor but on the warrantor. It is a right given to thewarrantor to protect his own interests as against thoseof the vendor. In case he is not summoned as a witnesseither by the prosecution or by the defense, he can stillappear as a witness in his own right. But we do notsee how be will be deprived of this right if be is triedjointly with the vendor. As already state, section 342Aof the Code still gives him a right to give evidence onhis own behalf. thereforee, a joint trial of the vendorand the manufacturer etc., will not be prejudicial to anyof them in spite of the right given to them by section 19(3) and (3) of the Act. We cannot, thereforee, agreewith the view expressed in the cases noted above thatit is necessary to discharge or acquit the warrantor inorder to enable the vendor to prove his warranty under section 19(2) of the Act.

(26) Another objection to the joint trial with the vendorand the manufacturer etc., is based upon section 13(2) of the Act. It is contended that in a joint trial, themanufacturer, the distributor and the dealer will bedeprived of the right to send a sample of the food articleto the Director of Central Food Laboratory, because nosample would have been given to them by the FoodInspector under section 11 of the Act. We see no forcein this contention. In cases where the Food Inspectortakes a sample of the food article from a vendor, he isrequired under section 11 of the Act to give a ortionof the said sample in a sealed cover to the vendor. Section 11 does not require the Food Inspector to give portions of the sample to the manufacturer, the distributorand the dealer of the said food article also even if thelatter were likely to be implicated in the same offence.Take a case in which, according to the learned counselfor some of the petitioners, the manufacturer, the distributor and the vendor could be jointly tried, say acase of conspiracy or abetment etc. Even in such acase, there is no provision in the Act that a portion ofthe sample should be given by the Food Inspector toany one other than the vendor. It is only in respectof the sample of food article sold by the vendor to theFood Inspector that the vendor as well as the manufacturer etc., are prosecuted. A portion of the sample ofthe said food article is sent to the public Analyst and asheld by the Supreme Court in Mangaldas RaghavjiRuparel v. Maharashtra State : 1966CriLJ106 'once the report of the Analyst is placed onrecord at the trial, it is admissible against all accusedpersons'. Similarly, the certificate of the Director ofthe Central Food Laboratory in respect of the portionof the sample which is given to the vendor and which thevendor sends to the Central Food Laboratory for analysisis admissible in evidence either in favor of or againstall the other accused in the case. When the Act itselfdoes not provide fur the supply of a portion of the sampleof the food article to the manufacturer, the distributorand the dealer, they cannot make a grievance of the factthat they are deprived of a right similar to one given tothe vendor under section 13(2) of the Act. In any case,we do not see how the position of the manufacturer,the distributor or the dealer is improved even if they arenot jointly tried with the vendor but tried separately,for in any event, they will have no right to ask for a samplebeing sent to the Central Food Laboratory for its certificate. On the other hand, if the sample is still availableand is fit for analysis, there will be nothing to preventthe manufacturer, distributor or dealer from persuadingthe vendor to apply for its being sent nor is there anybar to the Magistrate doing so at their instance, becausea favorable report from the Central Food Laboratorywill ensure for the benefit of all the accused includingthe vendor.

(27) Now we come to the scope of section 20A of theAct. This section was introduced in the Act by Act 49of 1964 with effect from 1-3-1965 and it reads as follows:

'20A.Where at any time during the trial ofany offence under this Act alleged to have beencommitted by any person, not being the manufacturer, distributor or dealer of any article of food,the court is satisfied, on the evidence adducedbefore it, that such manufacturer, distributor ordealer is also concerned with that offence, then,the court may, notwithstanding anything contained in sub-section (1) of section 351 of the Codeof Criminal Procedure, 1898, or in sect present in Court. Now the question is at whatstage can section 20A be invoked. It is clear from THE language of section 20A of the Act that this section cabe invoked only during the trial of the vendor and thatit cannot be invoked after the trial of the vendor hasconcluded either by his discharge or acquittal. Apartfrom the marginal heading of the section in which The word 'implead' is used, the section itself states that If the Court is satisfied 'at any time during the trial ofany offence under this Act' that the manufacturer etc.is also conceined with that offence', then the Courtmay proceed against the manufacturer etc. The under-lining is by us. Reference to sub-section (1) only ofsection 351 of the Code is also significant. It meansthat section 20A of the Act is not anexception to subsection (2) of section 351 of the Code which providesthat 'the proceedings in respect of such person shallbe commenced afresh, and the witnesses re-heard'.section 20A, thereforee, can be invoked after the trialof the vendor has commenced and before it has concludedbut not thereafter.


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