Jagjit Singh, J.
(1) On January 14, 1970 the Municipal Corporation of Delhi had, through the Assistant Municipal Prosecutor, filed a complaint against Ishwar Dass son of Jetha Ram and Uttam Chand son of Khushi Ram and Messrs Kashmir Perfumery Works, for having committed an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').
(2) Miss Saini, Judicial Magistrate, First Class, Delhi discharged Messrs Kashmir Perfumery Works by her order dated June 3, 1970 on the ground that the said firm was the sole proprietary concern of Shri Ishwar Dass son of Shri Wadhwa Ram and section 17 of the Act relating to offences by companies was not applicable. By another order dated October 27, 1970 the same learned Magistrate directed, under provisions of section 20A of the Act, that Ishwar Dass son of Wadhwa Ram and Ayodhia Nath to be as well proceeded against. Out of them Ishwar Dass son of Wadhwa Ram is the sole proprietor of Messra Kashmir Perfumery Works and Ayodhia Nath is the salesman-ww-manager. Summons were accordingly issued to Ishwar Dass son of Wadhwa Ram and Ayodhia Nath to appear in the trial court. Ayodhia Nath applied on March 1, 1972 for proceedings against him being dropped as he was not one of the class of persons against whom the court could proceed under section 20A as though a prosecution had been instituted against him under section 20 of the Act. On March 8, 1972 the application was, however, dismissed by Shri B. L. Anand, who had in the meantime succeeded Miss Saini as the trial Magistrate. Shri Anand held that any salesman-cum-manager of a firm is a necessary link for running the business and 'for all practical purposes he performs the functions of a distributor'.
(3) Against the order of the trial Magistrate dated March 8, 1972 a revision petition was filed by Ayodhia Nath. In that connection Shri M. K. Chawla, Additional Sessions Judge, has made a recommendation for quashing the order by which the application of Shri Ayodhia Nath was dismissed.
(4) On the revision being placed before M. R. A. Ansari, J., the learned Judge referred the case to a larger Bench. It was considered that the case involved the following two points :-
'(I)whether under the circumstances petitioner Ayodhia Nath is a manufacturer, distributor or dealer of vinegar which he admittedly sold to Ishwar Dass and Uttam Chand and
(II)if the answer to the first question is in the negative, whether he can still be summoned by the Court under section 190(1)(c) Cr. P.C.?'
(5) So far as the second point is concerned it was not even contended by the learned counsel for the Delhi Municipal Corporation that Ayodhia Nath could be joined as an accused by making use of the provisions of section 190(1)(c) of the Code of Criminal Procedure if section 20A of the Act had no application.
(6) Section 20 of the Act lays down that no prosecution for an offence under the Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority. The proviso to sub-section (1) allows prosecution for an offence under the Act to be also instituted by a purchaser referred to in section 12, if he produces in court a copy of the report of the Public Analyst Along with the complaint. Sub-section (2) enjoins that no court inferior to that of a Magistrate of the First Class shall try any offence under the Act.
(7) Under provisions of section 20A of the Act where at any time during the trial of any offence under the 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 the manufacturer, distributor or dealer is also concerned with that offence, then, the Court may notwithstanding anything contained in sub-section (1) of section 351 of the Code of Criminal Procedure, 1898, or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.
(8) It, thereforee, follows that no prosecution for an offence under the Act can be instituted except as provided by section 20. The only exception contemplated by the Act is as provided by section 20A which overrides the provisions of section 20 of the Act. Section 190(l)(c) of the Code of Criminal Procedure has no application for purposes of proceeding against any one under the Act.
(9) The case against Ishwar Dass son of Jetha Ram and Uttam Chand was that on October 25, 1969 they had stored for sale adulterated vinegar in their shop at No. 10, West Nizamuddin market. A sample of the vinegar was taken by a Food Inspector of the Delhi Municipal Corporation which on being sent for analysis to the Public Analyst was found to be adulterated. The vinegar of which sample was taken was alleged to have been manufactured and distributed by Messrs Kashmir Perfumery Works, Qutab Road Delhi.
(10) On behalf of Ishwar Dass son of Jetha Ram and Uttam Chand plea taken was that the vinegar had been purchased from Messrs Kashmir Perfumery Works under a written warranty.
(11) On the basis of the evidence produced during the trial Miss Saini recorded her satisfaction that Ishwar Dass son of Wadhwa Ram being the sole proprietor of Messrs Kashmir Perfumery Works was the manufacturer of the vinegar of which sample was taken and was also concerned with the offence for which Ishwar Dass son of Jetha Ram and Uttam Chand Were being tried. Ayodhia Nath was as well directed to be proceeded against, being the salesman-cum-manager of the manufacturer. Shri Anand, however, in his order dated March 8, 1972 justified the order that had been made by his predecessor for proceeding against Ayodhia Nath by remarking that for all practical purposes Ayodhia Nath performed the functions of a distributor.
(12) By no strech of imagination Ayodhia Nath can be regarded as the distributor. He was only an employee of Ishwar Dass son of Wadhwa Ram. Only Ishwar Dass son of Wadhwa Ram could be proceeded against under provisions of section 20A of the Prevention of Food Adulteration Act as being the manufacturer and distributor.
(13) In his capacity of manager-cum-salesman of Ishwar Dass son of Wadhwa Ram the petitioner, Ayodhia Nath, could not be regarded as the distributor and section 17 of the Act not being applicable to a sole proprietary concern there could be no liability on the part-of the petitioner because he was the salesman-cum-manager of Shri Ishwar Dass son of Wadhwa Ram. The order of Miss Saini dated October 27, 1970 in so far as it related to Ayodhia Nath and the order of Shri B.L. Anand dated March 8, 1972 being against the provisions of section 20A of the Act are liable to be quashed.
(14) The recommendation made by the learned Additional Sessions Judge is for the reasons given above accepted and the order of Shri B; L. Anand dated March 8, 1972 and the order of Miss Saini dated October 27, 1970 in so far as Ayodhia Nath was concerned are set aside. The trial Magistrate shall now proceed to dispose of the case against Ishwar Dass son of Jetha Ram, Uttam Chand and Ishwar Dass son of Wadhwa Ram on merits and in accordance with law.