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SUPREME COURT OF INDIA
M.H. BEG, A. ALAGIRISWAMI AND N.L. UNTWALIA, JJ.
M/s. Bhagwan Das Jagdish Chander, Appellant
Versus
Delhi Administration and another, Respondents.
Criminal Appeals Nos. 59 and 60 of 1971, D/- 25-3-1975.
Advocates appeared
Mr. E. C. Agarwala, Advocate for Appellant In both the Appeals. Mr. B. P. Maheshwari Advocate, for Respondent. No. 2.
Held, that the definition of sale given in sub-section (iii) of the Act, is wide enough to include every kind of seller. Every seller can be prosecuted for any offence u/s 7 of the Act which prohibits a sale as well as distribution of an adulterated article' of food. The mere fact that, for the purposes of section 14, the person who could be the last seller, in the sense that he sells to the actual consumer is described as the Vendor, could not affect a liability for an offence under section 7 of the Act of a sale of an article of food which is found to be adulterated. A sale of an article of food by a manufacturer, distributor, or dealer is a distinct & separable offence, Section 14 was not meant to carve out an exception in favour of distributor or a manufacturer who sells articles of food, found to be adulterated, irrespective of the question whether any warranty was given for them. It is true that the manufacture of an adulterated article of food for sale is also an offence u/s 7 of the Act. But neither section 7 nor section 14 of the Act bars trial of several offences by the same accused person, be he a manufacturer, a distributor, or a last seller, referred to as "the vender" in sec. 14 of the Act. (Para 10)
(AIR 1966 Punj. 421, 1974 FAC 534 & 1969 KLT 849, overruled).
Held further, that sec. 19 (2) & 20 (A) are special provisions and do not take away or derogate from the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old section 233 to 239 of the Criminal Procedure Code. On the other hand there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded, under sec.20A of the Act, he can not be joined as a co-accused initially in a joint trial, if the allegations made justify such a course. (Para 11)
Held also, that considering the character of the offence and the nature of the activities of the manufacturers and distributors, who generally deal in bulk and of the ordinary vendor, who sells particular item to the consumer, the common link which would provide the unity of purpose or design so as to weave their separate acts or omissions into one transaction, has to be their common intention that a particular article found adulterated, should reach the consumer as food. Ignorance of the fact of adulteration is immaterial. In order to justify a joint trial of accused their common object or intention to sell the article as food is enough. (Paras 17 & 18)
Joint trials of accused persons is not obligatory. The question whether there should be a joint or separate trial in a case should be determined on the facts of that case and the requirement of Justice there. The special, provisions of sec. 20 A are only enabling and do not give rise to a mandatory duty. They do not bar either a separate or joint trial of an accused person if other conditions are satisfied. Similarly section 239 (d) of the Code of 1898 which has been reproduced as sec.223 (d) of the new Code, is only enabling. No doubt it has to be shown that the requirements of section 239 (d) have been fulfilled whenever this provision is sought to be utilised. (Para 22)
A vendor, distributor and a manufacturer can be tried together provided the allegations made before the court show that there are connecting links between their activities so, as to constitute the same transaction. (Para 23)
Per Alagiriswami, J. :
Before a manufacturer, the distributor, and the vendor could be tried jointly it must be alleged that the manufactured food' was adulterated when the manufacturer passed it on to the distributor and it was also adulterated when the distributor passed it on 'to the vendor and that it was adulterated when the vendor sold it to the consumer....... In the absence of these allegations, there cannot be joint trial. (Para 28)
Judgment
BEG, J.:- (for himself and Untwalia, J.) These two criminal appeals, after certification of the cows as fit for decision by this Court, under Article 134 (1) (c) of the Constitution, arise out at the prosecution of M/s. Bhagwan Das Jagdish Chander, Ghee merchants and Commission Agents at Delhi under Sections 7/16 of the Prevention of Food Adulteration Act. 1954 (hereinafter referred to as the Act). The appellant was prosecuted jointly with Laxmi Narain, the vendor, of 450 gms. of ghee to a Food Inspector, on 22-8-1967. On analysis, the sample was found to be adulterated. Laxmi Narain, a partner of M/s. Laxmi sweets. Delhi in defence, successfully relied upon section 19 (2) of the Act and was acquitted. Section 19, which reads as follows, may be set out here in toto:
"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 licensed 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".
2. Section 14 of the Act, to which reference was made in Section 19 (3) says:
"S. 14. No manufacturer, distributor or dealer of any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribe form about the nature and quality of such article to the vendor.
Explanation. -In this section in Sub-section (2) of Section 19 and in Section 20A the expression "distributor" shall include a commission agent"
3. In the course of the trial Laxmi Narain filed an application praying that the warrantor may be discharged or acquitted so that Laxmi Narain may examine the warrantor as his defence witness to prove his as own purchase of the offending article under a warranty. It may be mentioned that, as the complaint describes, the warrantor accused as "M/s Bhagwan Das Jagdish Chander through an authorised person",appearance was put in by Jagdish Chander a partner, as the accused person responsible on behalf of the firm.
4. The trying Magistrate allowed the application of Laxmi Narain and acquitted Jagdish Chander on the ground that Laxmi Narain would be deprived of a valuable defence unless this was done and relied upon B. N. Chokra v. The State, (1966 Cri LJ 1201) in support of this action. Of course, an accused person has a right to appear in defence under S. 342A of the Code of Criminal Procedure; and, Laxmi Narain taking advantage of this provision, did depose in his own defence But, it seems that it was urged on behalf of Laxmi Narain that Jagdish Chander could not be compelled to appear as a defence witness until he had been discharged or acquitted. The Magistrate accepted this ground as good enough for the acquittal of Jagdish Chander. After the evidence of Jagdish Chander and Laxmi Narain, defence witness the trying Magistrate acquitted Laxmi Narain also on the ground that Laxmi Narain was protected by a warranty covered by Section 19 (2) of the Act. Thus, both the accused persons were acquitted.
5. After their acquittal, the Magistrate impleaded the manufacturers, M/s. Gauri Shanker Prem Narain, under Section 20A of the Act. This Provision reads as follows:
"20A. Where at any t
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