M.R.A. Ansari, J.
(1) 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?
(2) 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). LaxmiNarain 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 u/s 342 Criminal Procedure Code one of them, namely, Laxmi Narain, filed an application praying that the warrantor might be discharged or acquitted so thathe might examine him (the warrantor) as a defense 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 defense which he had as a right to raise u/s 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, AIR 1966 Pun 4210. 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.I and he admitted that he had sold the ghee to M/s. Laxmi Sweets undera warranty. Laxmi Narain also gave evidence u/s 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 LaxmiNarain and M/s. Bhagwan Dass Jagdish Chander. It may also be stated that after acquitting M/s. BhagwanDass Jagdhish Chander first and Laxmi Narain next, the learned Magistrate imp leaded M/s Gauri Shanker Prem Narain, the manufacturer of the ghee, u/s 20A of the Act. But we are not concerned in the present appeals with the prosecution of the manufacturer.
(3) 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. Marwahand (5) M/s. Chaudhary Dairies and Allied Products, Ghaziabad. Accused No. 1 is a partner of M/s. PuranChand & 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 bad 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.
(4) 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 2were 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 9/03/1967 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.
(5) 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 Ramunder a warranty. During the trial, Laukhani madean 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.
(6) 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 on18-5-1965 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.
(7) 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 27-1-1967which was found to be adulterated. The third accused was prosecuted for selling the said confectionary to the2nd 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.
(8) 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 in charge 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 imp leaded these four accused u/s 20A of the Act. These four accused, thereupon, filed objections against the said order of the learned Magistrate impleading them u/s 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 u/s 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.
(9) 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 cornflakes 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. 2under a warranty and the 4th accused was prosecuted for manufacturing the said food article. Charges we reframed against all the four accused. Thereupon, ShivNarain filed a revision petition before the Additional Sessions Judge, Delhi, and in this revision petition, be 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.
(10) 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 u/s 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 u/s 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.
(11) In Criminal Revision No. 544 of 1969, the Municipal Corporation filed a complaint against (1) Kanshi Ramand (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 u/s 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 u/s 20A of the Act.
(12) 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 conta.ined 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.
(13) The words "same transaction" have not been defined in the Code and in the word of Mudholkar J. in The
"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."
(14) 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 read 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 bythe Supreme Court in
"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."
(15) 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 pervades 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 u/s 239 of the Code. In our view, this test is satisfied in all the cases before us.
(16) 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 intoor 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
(17) 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 foran offence under the Act. It is contended that the consent required u/s 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 u/s 20 of the Act. Such a complaint has necessarily to be filed by the authority which u/s 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.
(18) While a joint trial of more than one person is permissible u/s 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 defense 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
(19) 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 Laland 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 bythe 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."
(20) The learned Judge quoted the relevant portion of section 19 as it then stood before its amendment by Act 49 of1964. 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 defense 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 defense by him under the provisions of S. 19(2) and the supplier of the goods to the actual vendor had been heard."
(21) 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 imp leaded as an accused with the vendor the latter would be deprived of his valuable defense u/s 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 favor of the contention, that there should be separate complaints against the manufacturer and the vendor and that both of them should not be imp leaded 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. Chokm''s case was not questioned.
(22) 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 defense u/s 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 staling 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. u/s 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. u/s 19 before its amendment, a warrantor would get notice from the vendor and if he wanted to challenge the defense raised by the vendor, he was entitled u/s 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 u/s 19(2) of the Act. Section 19, as it now stands, is in the following terms:
"19.(L)It shall be no defense 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 bythe 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 license 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."
(23) 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 u/s 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 u/s 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 u/s 19(2) of the Act and that he could prove the license referred to in sub-clause (i) or the warranty referred to in sub-clause(ii) even otherwise than by examining the licensee or the warrantor as the case may be. The license of the manufacturer, distributor or the dealer, can be proved by examining the concerned person from the office which had issued the license to the manufacturer, distributor and the dealer. In the case of a warranty, the primary evidence will be the document itself u/s 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.
(24) 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 favor 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 u/s 19(2) of the Act only within the limitation imposed by law.
(25) 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 defense, 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 be is tried jointly with the vendor. As already state, section 342Aof 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 u/s 19(2) of the Act.
(26) 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 u/s 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 u/s 11 of the Act to give a option 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
(27) Now we come to the scope of section 20A of the Act. This section was introduced in the Act by Act 49of 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 sect 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 cabe 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 conceited with that offence", then the Court may proceed against the manufacturer etc. The under-lining 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 subsection (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.
