The duty of the magistrate to proceed against the concerned persons according to law and the illegality of exonerating an accused from liability without facing a trial and proving innocence.

C.C. No. 238 of 1981 on the file of the Judicial First Class Magistrate, Alwaye was institute on a complaint filed by the Food Inspector, Alwaye against the revision petitioner as the sole accused for having exposed for sale and sold adulterated food article. His case is that he is entitled to protection under S. 19(2), Prevention of Food Adulteration Act, having purchased the food item under invoice from a firm, K. J. Thomas and Brothers, a wholesale dealer, of which one Mr. K. J. Thomas is the managing partner who is in charge of, and responsible to, the company for the conduct of its business. On his application under the provisions of S. 20 K. J. Thomas was impleaded as the second accused and the firm represented by the same K. J. Thomas was impleaded as third accused. K. J. Thomas entered appearance pursuant to process received from Court in his personal capacity as second accused and representing the third accused firm. Then the moved a petition to delete his name as the second accused on the plea that the firm represented by him is an accused and therefore he need not be an accused in his personal capacity. By order dt. 3-2-1984 the Magistrate allowed the prayer and deleted second accused from the party array. Vendor who is the first accused seeks to revise that order

2. When sale of adulterated food is proved, the only successful defence that is available to the vendor is that under S. 19(2) 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."

It was by way of this defence that he moved the Court since the Food Inspector has not taken steps for that purpose.

3. When at any time during the trial of any offence under the Prevention of Food Adulteration Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, if the Court is satisfied on the evidence, that such manufacturer, distributor or dealer is also concerned with that offence, the Court has no other option but to proceed against such manufacturer, distributor or dealer. This is notwithstanding the provision of S. 319(3), Criminal P.C. and S. 20 of the Act, as though the prosecution has been institute against him also as provided under S. 20. Even if the manufacturer, distributor or dealer is not present in Court and even without a complaint or written consent as contemplated in S. 20, the Court is empowered under S. 20-A of the Act to proceed against the manufacturer, distributor or dealer by way of joint trial along with the vendor. That means, in an appropriate case the Court is given the power and duty to implead the manufacturer, distributor or dealer as a co-accused along with the vendor and try him as an accused.

4. It is in exercise of this power that the Magistrate, on the application of the revision petitioner, impleaded the dealer as the third accused. Process was also issued. That means the Magistrate had the satisfaction that the dealer is also concerned with the offence. This is notwithstanding anything contained in S. 20 that no prosecution shall be instituted except by or with the written consent of the Government or a person authorised in that behalf. When process is issued the legal fiction is that the Court applied its mind not only for taking cognizance but also for proceeding against such person as is provided in S. 204, Cr.P.C. on the basis that there is sufficient ground for proceeding.

5. When the dealer, distributor or manufacturer is a company, S. 17 of the Act provides that not only the company but any person who has been nominated to be in charge of, and responsible to, the company for the conduct of the