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Banarsi Das and anr. Vs. the Municipal Council and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1975CriLJ674
AppellantBanarsi Das and anr.
RespondentThe Municipal Council and anr.
Cases ReferredDhian Singh v. Saharanpur Municipality
Excerpt:
- .....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 such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (l) of section 351 of the criminal p. c. 1898, (5 of 1898), or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.the section merely creates a liability of the manufacturer of an article which is found to be adulterated. in fact the production of an article of food involves three different processes: the actual production which is done by the manufacturer; the distribution of the article which is done by the.....
Judgment:
ORDER

S. Murtaza Fazl Ali, C.J.

1. This is a revision application for quashing the proceedings taken against the petitioners under Section 20A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) The petition arises in the following circumstances.

2. Mohd. Ashraf Khan, a Food Inspector of the city of Srinagar, took a sample of Ghee from the accused, Abdul Sam-ad-Gujri who is standing trial before the Municipal Magistrate Srinagar. A part of i he-sample was sent to the Chemical Examiner who found that the sample was adulterated and did not conform to the standard prescribed. The accused did not plead guilty, but contested the trial and while the witnesses of the prosecution were being examined under Section 256 of the Criminal P. C, the accused Abdul Samad Gujri filed an application before the trial court for summoning the petitioners under Section 20A of the Act, inasmuch as they were manufacturers of the adulterated article of fool and were therefore liable to prosecution under Section 20A of the Act. The Food Inspector, who is the complainant in the case, supported the application of the accused and pressed for the prosecution of the petitioners also. The trial court heard the arguments of the learned counsel for the parties and by his order dated 11-6-1974 on being satisfied that the petitioners were connected with the offence alleged against them, directed that they be summoned and arrayed as accused in the case. It is against this order that the petitioners have come up in revision to this court.

3. In support of the rule, Mr. R. P. Sethi, learned counsel for the petitioners raised three important contentions before me. In the first place he contended that Section 20A was itself ultra vires as being vola-tive of Article 14 of the Constitution of India. Secondly it was contended that the procedure prescribed by Section 20A deprives the petitioners who are to be summoned under Section 20A of the special protection provided to the other accused by way of the fact that the complaint against them can be filed by a person authorised by a competent authority. Lastly it was argued that as the defence of the petitioners and that of the accused, Abdul Samad Gujri, were diametrically opposite, the petitioners would be seriously prejudiced if they were jointly tried with the other accused at whose instance they were sought to be summoned. Finally some comment was also made on the question of warranty but it is not necessary for me to go into this question because the validity of the warranty etc. is a matter which has to be gone into at the trial and cannot be allowed to be raised at this stage when the petitioners want the quashing of the proceedings.

4. As regards the first contention that Section 20A is discriminatory as being violative of Article 14 of the Constitution of India, J am clearly of the opinion that this contention is completely devoid of force. Section 20A of the Act runs as follows : -

Where at any time during the trial of any offence under this 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 such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in Sub-section (l) of Section 351 of the Criminal P. C. 1898, (5 of 1898), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.

The section merely creates a liability of the manufacturer of an article which is found to be adulterated. In fact the production of an article of food involves three different processes: the actual production which is done by the manufacturer; the distribution of the article which is done by the distributing agency and the actual sale to the people consuming the article which function is performed by the dealer, it would thus appear that the three constituents namely, the manufacturer, distributor and the dealer must be held responsible if an article of food is found to be adulterated. They are just like persons accused of the same offence and therefore the question of discrimination does not at all arise. Indeed if we accept the argument of the counsel for the petitioners that Section 20A is discriminatory it will be giving free license to manufacturers and distributors to commit adulteration and get away with it and the only person who would be caught would be the dealer, which however could not have been the intention of the Parliament in passing the Act which is meant to crush and curb social evils. Mr. Sethi however argued that in the case of a dealer if a sample is taken by a Food Inspector, the dealer has the right to get the same examined by the Director of the Central Food Laboratory at Calcutta under Section 13(2) of the At and under Section 13(1) of the Act the certificate issued by the Director of the Central Food Laboratory shall supersede the report1 given by the Public-Analyst under Section 13(1) of the Act. The argument was put in this fashion: A Food Inspector takes a sample from a dealer on a particular day and immediately after the report of the Public Analyst is available the dealer has the right to get the sample which is with him examined by the Director of the Central Food Laboratory, but this right is. not available to a distributor or a manufacturer because by the time they are summoned by the court, sufficient period has elapsed and it will not be possible for the Director of the Central Food Laboratory to test the validity of the report of the Public Analyst. This therefore results in utter discrimination! so far as the manufacturer and the distributor are concerned. The argument is attractive but on close scrutiny it seems to me without any substance. It is true that a dealer has the right to get the sample examined by the Director of the Central Food Laboratory under Section 13, but if this right is exercised by the accused i.e. the dealer, the manufacturer and the distributor also get the advantage if the certificate of the Director goes in favour of the dealer. Furthermore if the dealer does not choose to exercise his right under Section 13(2), the mere fact that the manufacturer or the distributor are unable to exercise this right does not cause any prejudice to them. The article of food produced by the manufacturer and distributed by the distributing agency is either adulterated or not adulterated. If the article is not adulterated, then naturally the manufacturer and the distributor go scot-free and are not liable to any action. If, however, the article is found to be adulterated, it is no defence to say that although the manufacturer also committed adulteration yet he should not l:e punished, merely because the dealer who has sold the article produced by the manufacturer does not choose to exercise his right under Section 13 of the Act, Furthermore it seenv to me that the offence committed by the manufacturer in adulterating an article of food is a much more .serious matter than that committed by a dealer, because in such a case the dealer has trusted the manufacturer who has betrayed the former. In these circumstanccs the main accused should be the manufacturer rather than the dealer, but the dealer is also held liable because it is his duty to get a warranty from the manufacturer in which case he would not be liable to prosecution under the Act itself. Thus, therefore, even if the manufacturer is an accused, the offence committed by him being a. more severe and serious one, he stands in a class by itself, and Section 20A can be justified on the ground that it is based on a very reasonable classification aimed at protecting the society from social evils. In Sarjoo Prasad v State of U.PAIR 1961 SC 631 at p. 632 : (1961-1 Cri LJ 747 at p. 749) it was pointed out that every person, be he an employer or an agent, is prohibited from selling adulterated food. In this connection I their Lordships observed as follows:

Prohibition of sale of adulterated food is evidently imposed in the larger interest of maintenance of public health. The prohibition applies to all persons who sell adulterated food, and for contravention of the prohibition all such persons are penalised. Be-cause the legislature has Bought to penalize a person who sells adulterated food by his agent, it cannot be assumed that it was intended to penalise only those who may act through their agents. If the owner of a shop in which adulterated food is sold is without proof of mens realiable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.

It is clear from these observations that the manufacturer or the distributor being equally involved in the process of selling adulterated articles of food cannot escape criminal liability.

5. Coming now to the second argument, namely, that by summoning the petitioners under Section 20A the manufacturer does not get the benefit of having been prosecuted without the requisite sanction required under Section 20 of the Act, I think the contenion is purely illusory. Section 20 runs thus:

No prosecution for an offence under this 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):

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in a court a copy of the report of the public analyst along with the complaint.(2) No court inferior to that of a Presidency Magistrate or a magistrate of the first class shall try any offence under this Act.' A careful examination of the language in which the section is couched clearly shows that it cannot be equated with those provisions of the Criminal P. C. or other Act which require the sanctioning authority to apply its mind before ordering the prosecution of a person. All that the provision enjoins is that the prosecution shall be instituted only with the consent of the authorities mentioned in this section. No mode or manner is prescribed as to how the consent is to be given. Secondly this is an internal matter only to determine the convenience of a person or authority who is to file the torn-plaint against the accused who has committed an offence under the Act. I am fortified in my view by the observations of a recent decision of the Supreme Court in Dhian Singh v. Saharanpur Municipality : 1970CriLJ492 wherein their Lordships observed as follows:Under Section 20 of the Act, 1954, n question of applying one's mind to the feet of the case before the institution of the complaint arises as to the authoriy to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a claw of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question.

It follows, therefore, that once a valid com plaint is made against a dealer by the Food Inspector, it will include the prosecution not only of the dealer but also of all the persons who have committed the offence, including the manufacturer and the distributor This is exactly what Section 20A seeks to achieve. Furthermore even if a manufacturer or distributor is deprived of the protection granted by Section 20, these two persons are given the same kind of protection in another form by the provisions of Section 20A itself which requires that the accused can be summoned only if the court is satisfied on the evidence before it that they were concerned with the offence. The word 'satisfied' is a very strong term and clearly denotes that the Magistrate must have sufficient materials before him to show that the manufacturer or the distributor is concerned with the offence alleged before the Magistrate can pass an order under this section. This, therefore, is a good and valid substitution in Section 20 of the Act in the case of a manufacturer or a distributor and they can therefore have no grievance on this score. In the instant case the Magistrate has given cogent and convincing reasons for holding that at least petitioner No. 1 was olosely connected with the offence, because on his own showing he was a partner of the firm which had produced the adulterated article of food. For these reasons, therefore, this contention is also overruled.

6. The learned counsel for the petitioners wanted to take into the sufficiency or otherwise of the materials but that is not a point which can be agitated at this stage. If the materials are insufficient, then the Magistrate will certainly acquit the petitioners at the proper stage.

7. Lastly it was argued that the joint trial of the petitioners with the accused, Abdul Samad Gujri, was vitiated as it caused serious prejudice to the petitioners. I am, however, unable to agree with this contention. There can be no doubt that the offences committed by the accused Abdul Samad Gujri and that committed by the petitioners form part of the same transaction in that it is the same article of food which is manufactured by the petitioners and which in tura has been sold by the dealer and therefore the dealer, distributor and the manufacturer &re; equally liable under the provisions of the Act, and they cannot escape conviction needy by taking shelter under Section 239(d) of the Criminal P. C. which itself justifies joint trial of offences committed in the same transaction. An identical point was raised before a Full Bench of the Delhi High Court in ILR (1970) 2 Delhi 771 : (1973 Cri LJ 690) wherein their Lordships clearly held that joint trial of a dealer with a manufacturer or distributor is valid and permissible and is justified by the provisions of Section 239 of the Criminal P. C.

8. Lastly it was argued by the counsel for the petitioners that so far as the petitioner Om Prakash 'was concerned, thtre was absolutely no material to show that he was in any way connected with the firm of Banarsi Das which had manufactured Ghee found adulterated in the present case. This argument, in my opinion, is sound and must prevail. There is absolutely no evidence to show that petitioner No. 2, 6in Prakash, had anything to do with the firm of Banarsi Das either as a partner, manager or employee or things like that. In fact the learned Magistrate has also not referred to any evidence which shows any connection between Om Prakash and the firm of Banarsi Das and has relied only on the oral statement made by one of the accused persons. It ;.s true that Om Prakash is a brother of Banarsi Das, but there is nothing on the record to show that the firm of which Banarsi Das is the owner is a joint family firm. These are matters on which clear evidence has to be led before Om Prakash can be arraigned as accused in this case. In these circumstances the proceedings against Om Prakash must be quashed but it will be open to the prosecution to apply to the Magistrate again under Section 20A of the Act to summon Om Prakash if the prosecution is able to produce sufficient material to show that Om Prakash is in any way connected with the firm of Banana Das.

9. So far as Banarsi Das is concerned, there are sufficient materials against him, and in fact in paragraph (1) of his petition in this court Banarsi Das has clearly admitted that he was a partner of the firm of the Jammu Khalis Ghee Laboratories, Gumat Bazar, Jammu. Even in paragraph (2) of the affidavit sworn by the petitioner, the same averment has been reiterated. There is no dispute that petitioner No. 1, Banarsi Das, is the partner of the firm which has manufactured the adulterated article. In these circumstances I am of the opinion that the learned Magistrate was fully justified in summoning petitioner No. 1, Banarsi Das, and directing him to be arrayed as an accused in this case.

10. The result is that the application of Banarsi Das is dismissed but the application of Om Prakash is allowed and the proceedings taken against him as also the order of the Magistrate passed against him are quashed. The petitioner Banarsi Das shall now appear before the Municipal Magistrate Srinagar on 25-11-1974 failing which the learned Magistrate shall ensure his attendance by taking necessary steps in accordance with law.


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