Avad Behari, J.
(1) On December 5, 1969 Shri Charan Singh. Food Inspector of Municipal Correction of Delhi went to shop No. 1936, Fountain, Chandni Chowk, Delhi. This was Needo Restaurant and Kishan Lal its proprietor was sitting there at that time. The Inspector purchased 3 bottles of sauce in original packing from Kishan Lal for purposes of analysis by the Public Analyst. He paid the price and obtained a receipt thereforee. On analysis the sample was found to be adulteries.
(2) The Corporation launched a prosecution against Kishan Lal under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 ('the Act'). Kishan Lal pleaded that he was not guilty and claimed to be tried.
(3) The trial magistrate by order dated July 28, 1970 acquitted the accused. The Corporation has appealed to this Court against the order of acquittal.
(4) Before the trial magistrate the substantial defense of the accused was that he had purchased 4 dozen sealed bottles of sauce from M/s. Vijay Fruit Industries on December 2, 1969 against cash memo. Exhibit D.W. 1 /A. and that out of these bottles he sold 3 bottles in original packing to the Inspector and in the same condition in which he had purchased these.
(5) In his defense the accused produced Raj Kumar, a partner of Vijay Fruit Industries. Raj Kumar stated that their factory is licensed under Food Products Control Order and that they had obtained a valid license for manufacture of canned fruits, vegetable Juices/Synthetic syrups, squashes, vegetable sauce etc. Raj Kumar admitted that the cash memo Exhibit D.W. I/A was issued from their factory and that they had sold 4 dozen bottles of sauce for Rs. 24.00 to the purchaser. He was asked to identify one of the bottles sold to Kishan Lal which was produced in Court as a counterpart of the sample. He however did not admit that that bottle of sauce was one of the 4 dozen bottles sold by them as he was unable to identify the batch number thereon.
(6) Kishan Lal appeared as a defense witness under Section 342-A, Cr. P.C. He admitted the taking of the sample. But he said that he had not incurred any criminal liability as he purchased bottles of sauce from Vijay Fruit Industries and sold the same in that very condition in original packing. In other words he took the defense which was available to him under Section 19(2)(a)(i) of the Act. The relevant part of that section says:
'(2)A vendor shall not be deemed to have committed 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 license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer.'
(7) The trial magistrate came to the conclusion that it was a valid defense and that the accused had not committed any offence since he had purchased sauce from a duly licensed manufacturer.
(8) As regards the evidence of Raj Kumar the learned magistrate was of the opinion that the counterpart sample was one of the bottles sold by Vijay Fruit Industries, and that Raj Kumar was not telling tile truth when he denied that the bottle shown to him was their product.
(9) Mr. K. K. Raizada on behalf of the Corporation has mainly raised two arguments. Firstly, he says that the trial magistrate ought to have imp leaded Vijay Fruit Industries under Section 20A of the Act when in the course of the trial it had come to his notice that the accused was taking the defense afforded to him by Section 19(2)(a)(i). His submission is that this course would have avoided a plurality of prosecution and would have enabled the magistrate to find out the offender. Secondly, the counsel submits that there is no convincing proof on the record of the trial that the counterpart of the sample which was produced in court was out of the lot of 4 dozen bottles sold to Kishan La!. In our opinion none of these contentions has any substance.
(10) Under Section 20A of the Act it is not an absolute obligation on the court to implead the manufacturer. distributor or dealer and try him along with the person who is alleged to have committed an offence under the Act in the sense that if the manufacturer, distributor or dealer is not imp leaded and tried under the provisions of Section 20A, a separate trial would be barred. It is true that in order to avoid multiplicity of proceedings and conflict of findings it is always desirable that the magistrate should implead these persons under Section 20A whenever the conditions laid down in the section are satisfied. But merely because this is not done, the manufacturer, distributor or dealer would not get an immunity from a separate prosecution. (See: V. N. Kamdar v. Municipal Corporation of Delhi, : 1SCR157 ). Nor was the trial in the present case for that reason vitiated. On the spacious ground that the manufacturer v/as not imp leaded we arc not inclined to set aside the order of acquittal and remand the case for a fresh trial after impleading Vijay Fruit Industries, as was sought to be urged by the counsel for the Corporation. In fact we were told by the counsel for the Corporation that they have launched a separate prosecution against Vijay Fruit Industries. In these circumstances there is no sense now in remanding the case for a fresh trial.
(11) It is true that under Section 14A of the Act the accused was, if so required, bound to disclose to the Food Inspector the name. address a.nd other particulars of the person from whom he had purchased the bottles of sauce. The Food Inspector has the opportunity to note the name of the manufacturer but there is no obligation on the Food Inspector to file a joint complaint against them. He can prosecute them separately if he so thinks. This is what has happened in this case. The Corporation has chosen to proceed against the licensed manufacturer separately. We, thereforee, decline to remand the case for a fresh trial and reject the first contention.
(12) The accused has certainly established his defense under Section 19(2)(a)(i). This was all that he was required to do. We think the learned magistrate was right in acquitting the accused.
(13) Nor do we think that the counsel is right in his submission that there is no proof on the record that the three bottles sold to the Food Inspector were out of the lot of 4 dozen bottles purchased from Vijay Fruit Industries. In his evidence the Food Inspector Charan Singh clearly stated that he purchased 3 bottles of sauce in 'original packing'. While taking the food sample the Food Inspector in the inventory (Exhibit PC) clearly stated that he had taken three bottles of sauce in 'original packing' from the accused. This was the prosecution's own case and it is, thereforee, not now open to the Corporation to contend that the three bottles had not been manufactured by Vijay Fruit Industries. The counsel relics on the statement of Raj Kumar. We do not think that the counsel is entitled to press his statement into service. Raj Kumar was produced as a defense witness by the accused in order to establish his defense under Section 19(2)(a)(i). All that he wanted to prove was that Vijay Industries were licensed manufacturers. This was not denied by Raj Kumar in his statement. But if Raj Kumar went on to state something- else in his statement that would not bind the accused. Further we think that the trial magistrate came to the correct conclusion the evidence of this witness. He was not impressed by his testimony. He was of the view that the batch number on the counterpart of the sample closely resembled the code number which the factory used lo allot to their products. The close proximity between the purchase on the 2nd of December 1969 and the date on which the sample was taken i.e. 5th of December 1969 was also taken by the magistrate as a circumstance to conclude in favor of the accused that the there bottles sold by him were out of the purchase he had rnaue from Vijay Fruit Industries.
(15) In the result we confirm the order of acquittal and dismiss the appeal.