Municipal Corporation Of Delhi & Another v. Laxmi Narain & Another S

M.R.A Ansari, J.:— This judgment will dispose of Criminal 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 determination in all these cases are:—

(i) Whether a joint trial of the vendor, the distributor and the manufacturer for offences under the Prevention of Food Adulteration Act, 1954 is illegal? and

(ii) What is the scope of section 20A of the said Act?

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 against two persons, namely, (1) Laxmi Narain, Partner of M/s Laxmi Sweets, shop No. E-149-150, Kamla Nagar, Delhi and (2) M/s. Bhagwan Dass Jagdish Chander, Ghee Merchants and Commission Agents, Khari Baoli, Delhi, under sections 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). Laxmi Narain was prosecuted for selling 450 grams of ghee to the Food Inspector on 22/8/1967 which, on examination of the sample by the Public Analyst, was found to be adulterated. M/s. Bhagwan Dass Jagdish Chander were prosecuted for selling the same ghee to M/s. Laxmi Sweets under an alleged warranty. After the prosecution evidence was closed, and the accused were examined under section 342 Criminal Procedure Code one of them, namely, Laxmi Narain, filed an application praying that the warrantor might be discharged or acquitted so that he might examine him (the warrantor) as a defence witness to 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 Narain accused would be deprived of a valuable plea in defence which he had as a right to raise under section 19(2) of the Act. He drew support for this view from a decision of the Punjab High Court in V.N Chokra v. The State, A.I.R 1966 Punjab 421(1). The learned Magistrate, therefore, acquitted the firm M/s. Bhagwan Dass Jagdish Chander and proceeded with the trial of Laxmi Narain alone. Jagdish Chander, Partner of M/s. Bhagwan Dass Jagdish Chander, was examined as D.W.1 and he admitted that he had sold the ghee to M/s. Laxmi Sweets under a warranty. Laxmi Narain also gave evidence under section 342A of the Code of Criminal Procedure. On the strength of this evidence, the learned Magistrate acquitted Laxmi Narain also. The Municipal Corporation has filed these appeals against the acquittal of Laxmi Narain and M/s. Bhagwan Dass Jagdish Chander. It may also be stated that after acquitting M/s. Bhagwan Dass Jagdhish Chander first and Laxmi Narain next, the learned Magistrate impleaded M/s Gauri Shanker Prem Narain, the manufacturer of the ghee, under section 20A of the Act. But we are not concerned in the present appeals with the prosecution of the manufacturer.

In Criminal Revision No. 7 of 1967, the Municipal Corporation 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 Marwah and (5) M/s. Chaudhary Dairies and Allied Products, Ghaziabad. Accused No. 1 is a partner of M/s. Puran Chand & Sons, accused No. 2, and it was alleged that on 25-11-1965, he had sold condensed sweetened full cream milk, SLM Brand, to the Food Inspector, which, on examination by the Public Analyst, was found to be adulterated. Accused No. 3 was the distributor, who had sold the said milk to accused No. 1 and accused No. 4 was the salesman of M/s Chaudhary Dairies and Allied Products, Ghaziabad, accused No. 5, who manufactured the said food articles. All these five persons were prosecuted for an offence under sections 7/16 of the Act. During the course of the trial, accused No. 5, M/s. Chaudhary Dairies & Allied Products, filed an application objecting to a joint trial with the vendor and the warrantor. No orders appear to have been passed by the learned Magistrate on this application. Therefore, a revision petition was filed in the Court of the Additional Sessions Judge, Delhi, and the latter has submitted his report to this Court with the recommendation that the joint trial should be quashed. His recommendation is based on the decision of the Punjab High Court in V.N Chokra's case.

In Criminal Revision No. 207 of 1967, the Municipal Corporation 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 Store and (3) M/s Healthways Dairy Products Co. (Regd.) through Daulat Ram Sharma. Accused Nos. 1 and 2 were prosecuted for selling condensed milk to the Food Inspector on 17-10-1966 which, on examination, was found to be adulterated and the 3rd accused was prosecuted for manufacturing the said milk. A charge was framed by the learned Magistrate against the three accused 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 objection was taken against the joint trial of the vendor and the manufacturer. Following the decision of the Punjab High Court in V.N Chokra's case and an unreported decision of this Court in Peary Lal Gupta v. State, Criminal Revision No. 3 of 1967, decided on 9th March, 1967(2), the learned Additional Sessions Judge, Delhi, has submitted a report to this Court with the recommendation that the joint trial of the vendor and the manufacturer should be quashed.

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 allegations that the former had sold edible coconut oil to the Food Inspector on 29-5-1965 which, on examination by the Public Analyst, was found to be adulterated and that the latter had sold the said food article to Chela Ram under a warranty. During the trial, Laukhani made an 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. The learned Additional Sessions Judge has sent a report to this Court with the recommendation that the joint trial be quashed. In making this recommendation, the learned Additional Sessions Judge has relied upon the decision of the Punjab High Court and of this Court in the cases already cited.

In Criminal Revision No. 73 of 1968, the Municipal Corporation 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 to have sold edible coconut oil to the Food Inspector on 18-5-1965 which, on examination, was found to be adulterated and accused No. 4 is alleged to have manufactured and 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 application was dismissed. He thereupon filed a revision petition before the Additional Sessions Judge and the latter has submitted a report to this Court with the recommendation that the joint trial should be quashed. In making this recommendation, the learned Additional Sessions Judge has relied on the two decisions already cited.

In Criminal Revision No. 79 of 1968, the Municipal Corporation filed a complaint against (1) Kirti Kumar Vadi Lal Vohra, (2) M/s. J. Chitranjan Lal, (3) M/s. Moti Lal Girdhari Lal and (4) M/s. Ravalgaon Sugar Farm Ltd. The first two persons were prosecuted for selling confectionary to the Food Inspector on 27-1-1967 which was found to be adulterated. The third accused was prosecuted for selling the said confectionary to the 2nd accused under a warranty and the 4th accused was prosecuted for manufacturing the said food article. Before the trial commenced, the 3rd and the 4th accused filed an application objecting to their joint trial with the vendor. This application was dismissed. A revision petition was thereupon filed before the Additional Sessions Judge and the latter has submitted a report to this Court recommending that the joint trial be quashed. In doing so, he has followed the two decisions already cited. The learned Additional Sessions Judge has also expressed the view that the trial Court had no territorial jurisdiction the try to 4th accused as the food article was manufactured in the State of Maharashtra.

In Criminal Revision No. 5 of 1970, the Municipal Corporation 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 Charat Ram (Pvt.) Ltd., and (5) Bansi Dhar, Director Incharge of accused No. 4-company. Accused No. 1 was prosecuted for selling confectionary to the Food Inspector on 22-12-1966 which, on examination, was found to be adulterated. 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 raised an objection before the learned Magistrate against their joint trial with the vendor. This objection was upheld and the learned Magistrate discharged all the accused excepting No. 1 on 27-2-1968. Subsequently, however, the successor Magistrate impleaded these four accused under section 20A of the Act. These four accused, thereupon, filed objections against the said order of the learned Magistrate impleading them under section 20A of the Act, but these objections were overruled. Thereupon, they filed a revision petition before the learned Additional Sessions Judge and the latter has submitted a report to this Court with the recommendation that the order of the learned Magistrate under section 20A of the Act be quashed and that these four accused should be discharged on the ground that they had earlier been discharged on 27-2-1968.

In Criminal Revision No. 18 of 1970, the Municipal Corporation 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 corn flakes to the Food Inspector on 28-11-1968 which were found to be adulterated. The third accused was prosecuted for selling the said food article to accused No. 2 under a warranty and the 4th accused was prosecuted for manufacturing the said food article. Charges were framed against all the four accused. Thereupon, Shiv Narain filed a revision petition before the Additional Sessions Judge, Delhi, and in this revision petition, he objected to joint trial with the distributor and the manufacturer. His objection was upheld by the learned Additional Sessions Judge and he has recommended to this Court that the joint trial be quashed and that the learned Magistrate should be directed to proceed against the petitioner and his firm separately from the others.

In Criminal Revision No. 426 of 1968, the Municipal Corporation filed a complaint against Gian Singh for selling coloured confectionary of sugar at shop No. 27, Sunder Nagar Market, Delhi, on 16-7-1966 which was found to be adulterated. During the trial, evidence was 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 manufactured by Daurala Sugar Mills. On the strength of this evidence, the learned Magistrate acquitted accused Gian Singh and passed 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 General Mills Ltd., as accused in the case. These accused raised a preliminary objection before the learned Magistrate that their prosecution under section 20A of the Act was illegal. 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.

In Criminal Revision No. 544 of 1969, the Municipal Corporation filed a complaint against (1) Kanshi Ram and (2) M/s. New Grand Bakery, of which he was partner, for selling hard boiled sugar confectionary which was found to be adulterated. During the course of trial, evidence was adduced on behalf of the accused to prove that the food article in question had been sold to the accused by M/s. J. Chitranjan & Co., the distributors of the said article under a warranty. Thereupon, the learned Magistrate passed an order under section 20A of the Act impleading the said firm as well as its partners as co-accused in the case. The latter filed an application before the learned Magistrate objecting to their joint trial with the vendor. The application was dismissed. A revision petition was filed before the Additional Sessions Judge which was also dismissed. Thereupon, they have filed the present revision petition in this Court challenging the order of the learned Magistrate under section 20A of the Act.

We shall now proceed to consider whether the joint trial of the vendor, the manufacturer, the distributor and the dealer is 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 (hereinafter referred to as the Code) subject, of course, to certain 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 a separate trial. There are, however, exceptions to this general rule and these exceptions are contained in sections 234 to 239 of the Code. 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 apply. A vendor, a manufacturer, a distributor and a dealer of an adulterated food article may be jointly tried for offences committed by them under the Act if their case comes within the scope of the relevant clauses of section 239, viz., clauses (a) to (d) of that section. In the cases before us, it cannot be said that such a joint trial is permissible under clauses (a), (b) or (c) of that section. The act of the vendor in selling the article of food, the act of the distributor in selling the said article to the vendor and the act of the manufacturer in selling the said article to the distributor do not constitute the same offence but constitute different offences, although punishable under the same section of the Act. The distributor, the manufacturer and the dealer cannot also be said to abet the sale of the article by the vendor nor can it be said that the vendor, the distributor, the dealer and the manufacturer have jointly committed the offence. The joint trial of the vendor and the manufacturer etc. is permissible, if at all, under clause (d) of section 239 of the Code. The question is whether the vendor and the manufacturer etc., have committed different offences in the course of the same transaction.

The words “same transaction” have not been defined in the Code and in the word of Mudholkar J. in The State of Andhra Pradesh v. Cheemalapati Ganeshwara Rao and another, A.I.R 1963 Supreme Court 1850(3), “it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined”. The learned Judge has, however, referred in the same case to the following tests which are generally applied to determine whether or not a series of acts from part of the same transaction:—

“Where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction.”

Can it be said that there was unity of purpose and design in respect of the sale by the vendor of an adulterated article of food, the sale of the said article by the distributor to the vendor and the sale of the said article by the manufacturer to the distributor ? We are of the view that the answer should be in the affirmative. The common purpose 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 common intention of selling and adulterated article of food or even that they should have knowledge that it was adulterated. Mens rea is not a necessary ingredient in offences under the Act and the Act creates an absolute liability against the vendor, the distributor and the manufacturer for sale of an adulterated article of food. As observed by the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association v. Union of India, 1970(2) SCC 71(4)—

“It is true that for the protection of the liberty of the citizen, in the definition of offences, blameworthy mental condition is ordinarily an ingredient either by express enactment or clear implication but in Acts enacted to deal with a grave social evil, or for ensuring public welfare, especially in offences against public health, e.g, statutes regulating storage or sale of articles of food and drink, sale of drugs, sale of controlled or scarce commodities, it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind.”

When a manufacturer produces an article of food which 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 ultimately reaches the consumer. Thus one common purpose prevades throughout this chain of events. On behalf of the distributors and the vendors, it is argued that when they 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 distributed or sold may turn out to be adulterated. Their purpose, is, therefore, not the same as that of the manufacturer even if it is found that the latter produced an article with full knowledge of its being adulterated. In anything, the distributor and the vendor should normally be at cross purposes with one another. The argument is wholly fallacious as it postulates the existence of a common intention or common object as the foundation of the charge for an offence under the Act which, as we have seen, is not the case. That unity of purpose can, in our opinion, be predicated only if before the prosecution is launched, there is material to show the connection of the manufacturer and the distributor with the particular article of food which on analysis has been found to be adulterated. If this test is satisfied, then there would be unity of purpose and design between the vendor, the distributor and the manufacturer in respect of the sale of the article of food and these series of acts would form part of the same transaction and there can be a joint trial of these persons under section 239 of the code. In our view, this test is satisfied in all the cases before us.

An objection is, however, raised against such joint trial on the basis of section 177 of the code according to which every offence shall ordinarily be inquired into or tried by a Court within the local limits of whose jurisdiction it was committed. It is contended that the offences committed by the vendor, the distributor and the 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 the vendor had taken place in Delhi but the sale by the manufacturer had taken place in a different State. This objection overlooks the significance of the word “ordinarily” appearing in section 177 of the code. This word has been held to mean “except where provided otherwise in the Code or by any special law”. In Purshottamdas Dalmia v. State of West Bengal, A.I.R 1961 Supreme Court 1589 (5) it has been held that the provisions of sections 233 to 239 of the Code provide exceptions to section 177 and that they do permit the trial of a particular offence along with others in one Court. Therefore, the vendor and the manufacturer etc., may be jointly tried under section 239 of the code in the same Court notwithstanding the provisions of section 177 of the Code.

Another objection to such joint trial has been raised on the basis of section 20 of the Act which requires 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 before a prosecution is instituted against any person for an offence under the Act. It is contended that the consent required under section 20 of the Act should be of the authority which has jurisdiction over the area in which the offence is committed by the vendor or the manufacturer etc., and that in the cases before us, the complaint was filed only by the authority having jurisdiction over the area where the offence was committed by the vendor alone. We are unable to accept the construction sought to be put upon section 20 of the Act. The Court gets jurisdiction to try the offences when a complaint is filed under section 20 of the Act. Such a complaint has necessarily to be filed by the authority which under section 20 of the Act has jurisdiction over the area in which the Court is located. The primary offence which the Court tries is the sale of an adulterated article of food by the vendor. In case the identity of the article that is claimed by the complainant to be adulterated, is not in doubt and there is material to establish the connection of the manufacturer and the distributor with the particular article sold by the vendor, the offences committed by the dealer, the distributor and the manufacturer are in the nature of offences committed in the course of same transaction as the offence committed by the vendor. Therefore, the authority which is competent to file a complaint against the vendor is also competent to file a complaint against the manufacturer, the distributor and the dealer also.

While a joint trial of more than one person is permissible under section 239 of the code, the Court is not bound to have a joint trial of such persons if such a trial is otherwise not proper in the interest of justice. It is contended on behalf of the petitioners in these cases that a joint trial of the vendor and the manufacturer etc., would cause prejudice to them inasmuch as they will be deprived of the valuable plea of defence which is given to them by section 19(2) of the Act. In support of this argument, reliance is placed on a decision of the Punjab High Court in V.N Chokra v. State, A.I.R 1966 Punjab 421(1) and on an unreported decision of this Court in Peary Lal Gupta v. State, Criminal Revision No. 3 of 1967 decided on March 9, 1967 (2).

The facts in V.N Chokra's case may be briefly stated. The Food Inspector purchased 600 grams of suji from Pashori Lal, a grocer of Paprola. This sample was taken from a closed bag containing 2 mds. 17 seers of suji bearing the name of the Jawala Flour Mills, Amritsar. The sample was found to be adulterated. A complaint was filed both against Pashori Lal as well as against the Jawala Flour Mills. In answer to the summons issued to the Mills, an Accountant of the Mills appeared before the Magistrate, but the latter refused to recognise him as representing the accused-Mills. Subsequently, the Manager of the Mills appeared before the Magistrate, but the latter again refused to recognise the Manager also as representing the accused Mills. Thereupon, a revision petition was filed in the Sessions Court by the Manager and the Sessions Judge recommended the quashing of the proceedings against the Mills on the ground that the complaint neither disclosed any offence against the Mills nor any ground which would give the Court at Dharamsala jurisdiction to try a company carrying on business at Amritsar. The High Court accepted this recommendation and quashed the proceedings against Jawala Flour Mills on the ground that the complaint did not disclose any offence against the firm or company and that obviously it was necessary in such a complaint to state that suji from which the sample was taken was supplied by the firm or the company to Pashori Lal and also that this was done at Paprola in order to give the local Court some jurisdiction in the matter. This finding of the learned Judge should have been sufficient to dispose of the case but he proceeded to make the following observations:—

“It seems to me that there is no justification for the prosecution of a person, firm or company who is alleged to have supplied goods to the dealer from whom the sample is actually purchased by the Food Inspector in the same trial as the dealer from whom the sample was taken. As far as I can see the only section which brings a third party into the matter when an adulterated sample has been taken is S. 19, the relevant portion of which reads.”

The learned Judge quoted the relevant portion of section 19 as it then stood before its amendment by act 49 of 1964. After quoting the section, the learned Judge proceeded to observe as follows:

“From this it would appear that the firm or company could only have been brought into this case at all after Pashori Lal accused who actually sold the adulterated suji, had set up the defence contemplated in S. 19(2) and complied with the other provisions of the sub-section, and in my opinion the question of prosecuting the present firm or company which is alleged to have given a warranty could only arise after the trial of the actual vendor had concluded with a successful defence by him under the provisions of S. 19(2) and the supplier of the goods to the actual vendor had been heard.”

The facts of Peary Lal Gupta's case may now be briefly stated. The Food Inspector purchased a sample of Kesari Haldi from one Roshan Lal which was later found to be adulterated. A complaint was, therefore, filed against Roshan Lal, the vendor and Peary Lal Gupta who was alleged to have manufactured the adulterated article of food. The latter filed an application before the trial Court for quashing the prosecution against him on the ground that the law did not provide for the impleading of the manufacturer as an accused with the vendor. This application was rejected. A revision petition was then filed before the Additional Sessions Judge and it was contended before him that in case a manufacturer was impleaded as an accused with the vendor the latter would be deprived of his valuable defence under section 19(2) of the Act. The learned Additional Sessions Judge agreed with this contention and held that the scheme of the Act seemed to be in favour of the contention, that there should be separate complaints against the manufacturer and the vendor and that both of them should not be impleaded as accused in one complaint. He, therefore, submitted a report to the High Court with the recommendation that the prosecution against Peary Lal Gupta be quashed. The recommendation was accepted and the proceedings against Peary Lal Gupta were quashed following the decision in V.N Chokra's case. We may add that in Peary Lal Gupta's case, there was no discussion of the various points involved in the case and the correctness of the decision in V.N, Chokra's case was not questioned.

With the greatest respect to the learned Judges, who have decided the above cases, we find ourselves unable to agree with the views expressed by them and we proceed to state our reasons. As already stated, V.N Chokar's case was decided under the Act before its amendment in 1964 which re-cast section 19 of the old act. One of the material changes is the omission of the first proviso to section 19(2) of the old Act. Under this proviso, the defence under section 19(2) was open to the vendor only if he had submitted to the Food Inspector or the local authority a copy of the warranty with a written notice stating that he intended to rely on it and specifying the name and address of the person from whom he received it and had also sent a like notice of his intention to that person. The omission of this proviso in the present section 19 is significant and it means that the vendor is not required, to notify the Food Inspector about the warranty or to give any notice to the warrantor. Under section 14a of the new act, the vendor is required to disclose the name and address of the warrantor only if he is required to do so by the Food Inspector. Under section 19 before its amendment, a warrantor would get notice from the vendor and if he wanted to challenge the defence raised by the vendor, he was entitled under section 19(3) of the Act to give evidence against the vendor and in protection of his own interests. But after the amendment of section 19, a warrantor would have no opportunity to protect his interests if the vendor alone is prosecuted and he throws the blame upon him. The impleading of the warrantor along with the vendor and their joint trial would, thus, afford an opportunity to the warrantor to prove either that he did not give the warranty to the vendor or that the vendor had tampered with the article of food after he had received it from the warrantor. Section 19 in its present form, therefore, does not justify the view that the warrantor could be prosecuted only after the vendor had successfully proved the warranty under section 19(2) of the Act.

Section 19, as it now stands, is in the following terms :

“19.(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

(2) A vendor shall not be deemed to have committed an 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 licence is prescribed for the sale thereof, from a duly license manufacturer, 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 sold it in the same state as he purchased it.

(3) Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.”

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 an article of food and sometimes to exclude these persons. In section 10 of the Act the word “vendor” has been used so as to include 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 not to 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 the manufacturer, the distributor or the dealer. Thus, the latter categories of persons cannot make a legitimate grievance of the fact that in a joint trial with the vendor, they will be deprived of the plea which is available to a vendor under section 19(2) of the Act. So far as the vendor himself is concerned, it appears to us that he could successfully put forth the plea under section 19(2) of the Act and that he could prove the licence referred to in sub-clause (i) or the warranty referred to in sub-clause (ii) even otherwise than by examining the licenssee or the warrantor as the case may be. The licence of the manufacturer, distributor or the dealer can be proved by examining the concerned person from the office which had issued the licence to the manufacturer, distributor and the dealer. In the case of a warranty, the primary evidence will be the document itself under section 62 of the Evidence Act and it would be sufficient if the vendor produces the warranty before the Court, the genuineness of which need not necessarily be proved by the evidence of the manufacturer alone. There can be several other ways of proving the same.

Even if the warranty may be proved by examining the warrantor himself, it does not follow that a vendor can under all circumstances insist on examining the warrantor as a witness. If the warrantor is also prosecuted for an offence under the Act in respect of the same article of food and is being tried jointly with the vendor or separately, the vendor may examine the warrantor only if the latter is willing to give evidence. His joint trial will not stand in the way of his giving evidence, because section 342a of the code will enable him to give evidence on oath in disproof of the charges made 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 favour of the vendor, because such evidence may incriminate the warrantor himself, then he cannot be compelled to give evidence, because he will be protected by Article 20(3) of the Constitution. The vendor cannot then say that the warrantor shall not be prosecuted at all. At that rate, a person accused of any offence can always insist that a co-accused should be discharged or acquitted on the 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 imposed by law.

Section 19(3) of the Act confers a right not on the vendor but on the warrantor. It is a right given to the warrantor to protect his own interests as against those of the vendor. In case he is not summoned as a witness either by the prosecution or by the defence, he can still appear as a witness in his own right. But we do not see how be will be deprived of this right if he is tried jointly with the vendor. As already state, section 342a of the code still gives him a right to give evidence on his own behalf. Therefore, a joint trial of the vendor and the manufacturer etc., will not be prejudicial to any of them in spite of the right given to them by section 19(3) and (3) of the Act. We cannot, therefore, agree with the view expressed in the cases noted above that it is necessary to discharge or acquit the warrantor in order to enable the vendor to prove his warranty under section 19(2) of the Act.

Another objection to the joint trial with the vendor and the manufacturer etc., is based upon section 13(2) of the Act. It is contended that in a joint trial, the manufacturer, the distributor and the dealer will be deprived of the right to send a sample of the food article to the Director of Central Food Laboratory, because no sample would have been given to them by the Food Inspector under section 11 of the Act. We see no force in this contention. In cases where the Food Inspector takes a sample of the food article from a vendor, he is required under section 11 of the Act to give a portion of 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 distributor and the dealer of the said food article also even if the latter were likely to be implicated in the same offence. Take a case in which, according to the learned counsel for some of the petitioners, the manufacturer, the distributor and the vendor could be jointly tried, say a case of conspiracy or abetment etc. Even in such a case, there is no provision in the Act that a portion of the sample should be given by the Food Inspector to any one other than the vendor. It is only in respect of the sample of food article sold by the vendor to the Food Inspector that the vendor as well as the manufacturer etc., are prosecuted. A portion of the sample of the said food article is sent to the public Analyst and as held by the Supreme Court in Mangaldas Raghavji Ruparel v. State Of Maharashtra A.I.R 1966 Supreme Court 128(6), “once the report of the Analyst is placed on record at the trial, it is admissible against all accused persons”. Similarly, the certificate of the Director of the Central Food Laboratory in respect of the portion of the sample which is given to the vendor and which the vendor sends to the Central Food Laboratory for analysis is admissible in evidence either in favour of or against all the other accused in the case. When the Act itself does not provide for the supply of a portion of the sample of the food article to the manufacturer, the distributor and the dealer, they cannot make a grievance of the fact that they are deprived of a right similar to one given to the 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 are not jointly tried with the vendor but tried separately, for in any event, they will have no right to ask for a sample being sent to the Central Food Laboratory for its certificate. On the other hand, if the sample is still available and is fit for analysis, there will be nothing to prevent the manufacturer, distributor or dealer from persuading the vendor to apply for its being sent nor is there any bar to the Magistrate doing so at their instance, because a favourable report from the Central Food Laboratory will ensure for the benefit of all the accused including the vendor.

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

“20A. 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 (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.”

This section provides for the impleading of the manufacturer, distributor or dealer in a case in which initially a complaint was filed only against the vendor. Section 20A is an exception to section 20 of the Act and therefore, the manufacturer etc., may be impleaded in the case even without a complaint having been filed against them under section 20 of the Act. Section 20A is also an exception to section 351(1) of the Code and the manufacturer etc. may be impleaded in the case even if they are not present in Court. Now the question is at what stage can section 20A be invoked. It is clear from the language of section 20A of the Act that this section can be invoked only during the trial of the vendor and that it cannot be invoked after the trial of the vendor has concluded either by his discharge or acquittal. Apart from 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 of any offence under this Act” that the manufacturer etc. “is also concerned with that offence”, then the Court may proceed against the manufacturer etc. The underlining is by us. Reference to sub-section (1) only of section 351 of the Code is also significant. It means that section 20A of the Act is not an exception to sub-section (2) of section 351 of the Code which provides that “the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard”, section 20A, therefore, can be invoked after the trial of the vendor has commenced and before it has concluded but not thereafter.

The next question is who are the persons who can be impleaded under section 20A of the Act. It is contended by Shri C.B Aggarwal, learned counsel for the petitioners in some of the cases, that while section 20A is treated as an exception to section 351(1) of the Code, it is not treated as an exception to section 239 of the code and that, therefore, only such persons can be impleaded under section 20A of the Act who can be jointly tried under section 239 of the code It is, further, contended by the learned counsel that the words “also Concerned with that offence “appearing in section 20A of the Act would indicate that only those persons can be impleaded under section 20A of the Act whose joint trial is permissible under clauses (a) and (b) of section 239 of the Code and not those who could be jointly tried under clause (d) of that section. The meaning of the words “also concerned with that offence” has, therefore, to be examined.

These words are used in section 167(8) of Sea Customs Act, 1878 and the meaning of these words has been explained by the Supreme Court in Radha Kishan Bhatia v. The Union of India and others, A.I.R 1965 Supreme Court 1072(7). It may be necessary to briefly state the facts of that case: A number of gold bars were recovered from the person of the accused in that case. It was not disputed that these gold bars were imported into the country illegally. There was, however, no evidence that the accused had actually brought such gold into the country from outside the border or that he was responsible for its being brought into the country by taking such action which led to the importing of the smuggled gold prior to its import. The accused was prosecuted under section 167(8) of the Sea Customs Act as being a person concerned in the offence of the importation into India of the gold contrary to the prohibition or restriction imposed by or under Chapter IV of the said Act. On these facts, it was held by the Supreme Court that the accused was not a person concerned in the offence of illegal importation of the gold. In that context, the following observations were made:

“The requirements of the expression ‘concerned in any such offence’ in the penalty part of section 167(8) are that the person to be penalised must be interested or involved or engaged or mixed up in the commission of the offence referred to in the first column of S. 167(8). The interest or the involvement or the engagement or the mixing up of the appellant in the commission of the offence must be at a stage prior to the completion of the offence of illegal importation of gold into the country.”

The Supreme Court has thus given a very wide meaning to the words “concerned in the offence” and in our view this meaning cannot be restricted to cases covered by clauses (a) and (b) of section 239 of the Code, because the words “concerned with that offence” do not necessarily mean “who has committed the same offence.” For example, cases of a distributor or a manufacturer who have either not given a warranty in violation of section 14 of the Act and thus committed an offence under section 16(1C) of the Act or who have given a false warranty and thus committed an offence under section 16(1)(f) of the Act, are persons who are concerned with the offence of the sale of the said article of food by the vendor and may be impleaded under section 20A of the Act. We are of the view that section 20A of the Act is not subject to section 239 of the code and that section 20a is self-contained and complete in itself. The scope of section 20A of the Act has to be judged only by the language of the section itself and without reference to section 239 of the code.

We shall now proceed to examine the facts of the cases before us in the light of the principles enunciated by us with a view to determine whether any interference by this Court is necessary.

In Criminal Appeals Nos. 8 and 9 of 1969, the vendor, Laxmi Narain, and the warrantor, M/s Bhagwan Dass Jagdish Chander, were jointly tried. The learned Magistrate, after framing the charge against both of them, acquitted the warrantor on the ground that if he was jointly tried with the vendor, the latter would be deprived of his valuable plea of defence under section 19(2) of the Act. We have held that it was not necessary either to discharge or acquit the warrantor on that ground. Therefore, the acquittal of the warrantor was illegal. It is contended by Shri Gosain, learned counsel for the warrantor in this case, that the acquittal of the warrantor was justified even on mertis, because there was evidence in the case to prove that the warrantor himself had purchased the ghee from the manufacturer in sealed tins bearing the Agmark. According to the learned counsel the Agmark seal would itself amount to a warranty by the manufacturer and that he was equally protected by this warranty as the vendor himself. On the other hand, Shri Gokhale, learned counsel for the Municipal Corporation, contends that the learned Magistrate erred in assuming that the sealed tin out of which the sample was taken by the Food Inspector from the vendor bore the Agmark seal. He further contends that even if the tin bore the Agmark seal, it would not amount to a warranty within the meaning of section 14 of the Act. In any case, the learned Magistrate did not acquit the warrantor on merits but only on the ground already stated, namely, that his joint trial with the vendor would deprive the latter of his right under section 19(2) of the Act. We cannot, therefore, go into the merits of the case against the warrantor. His acquittal, is, therefore, set aside and his case is remanded to the learned Magistrate for fresh trial in accordance with law. The appeal filed by the Municipal Corporation against the acquittal of the warrantor is, therefore, allowed. As regards the appeal filed against the acquittal of the vendor, Laxmi Narain, his acquittal was based upon a successful plea by him under section 19(2) of the Act. The vendor examined the warrantor as a witness for proving the warranty and the latter has admitted in his evidence that he had given the warranty to the vendor. There is, therefore, no reason to interfere with his acquittal. The appeal filed against his acquittal is, therefore, dismissed.

In Criminal Revision No. 7 of 1967, the vendor, the distributor and the manufacturer were being jointly tried and the trial Court had turned down the request of the manufacturers that they should not be jointly tried with the vendor. The learned Additional Sessions Judge has recommended that the joint trial should be quashed and the said recommendation is based upon a decision of the Punjab High Court in V.N Chokra's case. In view of our disagreement with the rule laid down in that case and in view of our finding that such a joint trial is perfectly valid, the recommendation of the learned Additional Sessions Judge cannot be accepted. This revision petition is, therefore, dismissed.

In Criminal Revision No. 287 of 1967, the vendor and the manufacturer were being jointly tried and the objection of the manufacturer against such joint trial was over-ruled by the learned Magistrate. The learned Additional Sessions, Judge, following the decision of the Punjab High Court in V.N Chokra's case and of this Court in Peary Lal Gupta's case, has recommended the quashing of the prosecution case against the manufacturer. In the view we have taken on the question of joint trial of the vendor and the manufacturer, the recommendation of the learned Additional Sessions Judge cannot be accepted and the revision petition is dismissed.

In Criminal Revisions Nos. 66 and 72 of 1968, both the vendor and the warrantor were being jointly tried and the application filed by the warrantor objecting to his joint trial with the vendor was rejected by the learned Magistrate. Both the vendor as well as the warrantor filed revision petitions before the learned Additional Sessions Judge and the latter has recommended that the prosecution against them be quashed and that they be discharged. The recommendation is based upon the rule laid down in V.N Chokra's case and Peary Lal Gupta's case. This recommendation also cannot be accepted as, according to us, there is no illegality in the joint trial of the vendor with the warrantor and these revision petitions are also dismissed.

The facts in Criminal Revision No. 73 of 1968 are also similar and a similar recommendation has been made by the learned Additional Sessions Judge. This revision petition too is dismissed.

In Criminal Revision No. 79 of 1968, the vendor was being jointly tried along with the distributor and the manufacturer. The petition filed by the distributor and the manufacturer objecting to their joint trial with the vendor was rejected by the learned Magistrate. The vendor went up in revision before the learned Additional Sessions Judge. The learned Additional Sessions Judge has recommended the quashing of the joint trial on two grounds, namely, (1) that such joint trial was barred by the rule laid down in V.N Chokar's case and Peary Lal Gupta's case and (2) that the trial Court had no jurisdiction to try the offence committed by the manufacturer, as that offence was committed outside the, territorial jurisdiction of the Court. On the first point, we have disagreed with the rule laid down in the two cases referred to above and on the second point, we have held that section 239 of the code is an exception to section 177 of the code and that the Court, which has jurisdiction to try the vendor, has jurisdiction also to try the other persons, who committed different offences in the course of the same transaction. The joint trial of the vendor, the distributor and the manufacturer is, therefore, quite proper and there is no reason to interfere with such joint trial. This revision petition too is dismissed.

In Criminal Revision No. 5 of 1970, the vendor the distributor and the manufacturer were being jointly tried on a complaint filed against all of them by the Municipal Corporation. An objection was taken by the vendor against his joint trial with the distributor and the manufacturer and the learned Magistrate discharged the distributor and the manufacturer on 27-2-1968 and proceeded with the trial of the vendor alone. This Magistrate was succeeded by another Magistrate, Miss S. Saini and the latter passed an order on 31-8-1968 under section 20A of the Act impleading the distributor and the manufacturer, who had already been discharged on 27-2-1968. The distributor and the manufacturer objected to their being impleaded once again in the case after they had been discharged earlier. The learned Magistrate over-ruled these objections. There-upon, they went up in revision before the learned Additional Sessions Judge and the latter has recommended to this Court that the order passed by the learned Magistrate under section 20A of the Act be quashed.

It is now well-settled that the discharge of the accused person is not a bar to his re-trial for the same offence and that the principle of autrefois acquit embodied in section 403 of the code will not apply to such a case. The discharge of the distributor and the manufacturer will, therefore, not be a bar to their prosecution afresh for the same offence either under section 20 or under section 20A of the Act. It is, however, contended on behalf of the petitioners that even if it was not illegal to implead them again in the case under section 20A of the Act, it was not proper to do so under the circumstances of this case. In this connection, it is pointed out that against the order of discharge dated 27-2-1968, the Municipal Corporation had filed a revision petition before the Additional Sessions Judge and that that petition was also dismissed. It was open to the Municipal Corporation to have challenged the order of the Sessions Judge by coming in revision before this Court. But it did not do so. We think that there is some force in this argument. Although the order under section 20A of the Act was not illegal, we feel that under the circumstances, it was not proper for the succeeding Magistrate to implead the petitioners under section 20A of the Act. The order of the learned Magistrate is quashed and this revision petition, therefore, is also allowed.

In Criminal Revision No. 18 of 1970, the vendor, the distributor and the manufacturer were being jointly tried on a complaint filed against all of them by the Municipal Corporation. An objection was taken before the learned Magistrate against such joint trial but the objection was over-ruled. The parties went up in revision before the Additional Sessions Judge and the latter, following the rule laid down in V.N Chokra's case and Peary Lal Gupta's case, has expressed the view that such trial is illegal. He has, therefore, recommended to this Court that the joint trial should be quashed and that the learned Magistrate should be directed to proceed against the vendor separately from the others. For the reasons already stated, we cannot accept this recommendation and this petition is also dismissed.

In Criminal Revision No. 426 of 1968, the vendor alone was prosecuted for an offence under sections 7/16 of the Act and during the trial, he took the plea that he had purchased the article of food in question from the distributor under a warranty. The learned Magistrate accepted this plea of the vendor and acquitted him. At the same time, he impleaded the distributor, the manufacturer and their respective representatives under section 20A of the Act. The persons, so impleaded, challenged the legality of the proceedings under section 20A, but the learned Magistrate disregarded the objection. Thereupon, they filed a revision petition before the learned Additional Sessions, but the latter has rejected the revision petition and has confirmed the order of the learned Magistrate under section 20A of the Act. The present revision petition is, therefore, filed against the order of the learned Additional Sessions Judge. Although we have held that the joint trial of the vendor, the manufacturer, the distributor and the dealer is permissible both under section 20 as well as under section 20A of the Act, the order of the learned Magistrate in this case has to be quashed on another ground. We have held that the manufacturer etc. may be impleaded under section 20A of the Act during the course of the trial of the vendor and that they cannot be so impleaded after the trial of the vendor has concluded either by his discharge or acquittal. In this case, the trial of the vendor must be deemed to have concluded when the learned Magistrate acquitted the vendor. Thereafter, there is no question of the manufacturer etc., being jointly tried with the vendor. We cannot interfere with the acquittal of the vendor himself, because there is no appeal before us against his acquittal. Therefore, the order of the learned Magistrate under section 20A of the Act is quashed and this revision petition is allowed.

In criminal revision No. 544 of 1969, the vendor as well as its partner were being tried jointly for an offence under sections 7/16 of the Act on a complaint filed against them by the Municipal Corporation. During the course of the trial, the vendor pleaded that he had purchased the article of food in question from the distributor under a warranty. Acting on this evidence, the learned Magistrate passed an order under section 20A of the Act impleading the partners of the distributor-firm in the case. Against this order of the learned Magistrate, the distributor-firm filed a revision petition before the Additional Sessions Judge, but the same was dismissed. The distributor firm has, therefore, filed the present revision petition in this Court. The order of the learned Magistrate in this case does not suffer from any illegality similar to the order referred to above in the immediately preceding paragraph. There is, therefore, no reason to interefere with the order of the learned Magistrate. This petition is dismissed.

A.N.K Order accordingly