STATE Vs. PAWAN KUMAR CHOPRA

JUDGEMENT

(1.) This petition has been brought by the Delhi Administration against order dt. Nov. 11, 1980, of a Metropolitan Magistrate, Delhi, by which he had discharged respondents 1 and 2.

(2.) Facts, in brief, are that a sample of ghee (special grade AG Mark) was lifted from a sealed tin from the respondents on Aug. 11, 1978, which on analysis was found to be adulterated by the Public Analyst and it was again declared adulterated when second sample was sent for analysis to the Director, Central Food Laboratory, Ghaziabad. A complaint was filed after obtaining necessary consent in writing against respondents 1 and 2 as the vendors. This adulterated ghee was stated to have been manufactured and packed by M/s. Shankar Dass Sardar Singh and was sold through M/s. Goverdhan Ghee Laboratories who in turn had sold the same to respondents 1 and 2. The complaint was filed against six accused including the vendor, distributor and the manufacturer. The learned Magistrate giving benefit of S.19 of le Prevention of Food Adulteration Act, 954 (for short 'the Act') had thought it fit to is charge respondents 1 and 2 and had directed framing of charges against the other accused. The Delhi Administration has challenged this order on the short ground that in a in joint trial against the vendor, manufacturer and the distributor, the vendor could not have been discharged till evidence has been completed against all the accused and if ultimately finding had been given that respondents 1 and 2 were protected on account of the warranty given then respondents 1 and 2 would be acquitted and the other respondents could be held guilty of the offence of adulteration. There is a much force in this contention of the petitioner in this case. Under S.20-A of the Act the manufacturer, distributor and dealer could be jointly tried or commission of offence along with the vendor, even though a separate trial against manufacturer, distributor or dealer is not barred. It was held in M/s. Bhagwan Das Jagdish Chander v. Delhi Administration, AIR 1975 SC 1309, that it is not a correct line of reasoning that in every case under the Act, there has to be initially a prosecution of a particular seller only, but those who may have passed on or sold the adulterated articles of food to the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under S.19(2) has been pleaded and shown to be substantiated. It was held that the special provisions in Ss.20A, 19(2) and 20 do not take away or derrogate from the effect of the ordinary provisions of Ss.223 to 239 of the Old Criminal P.C. It was laid down that on the other hand, there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded, under S.20A, he cannot be joined as a co-accused initially in a joint trial if the allegations made justify such a course.

(3.) So, it is evident that a joint trial has to take place in respect of all the six accused and the vendor could not have been discharged till distributor as well as manufacturer had an opportunity to lead evidence to rebut the pleas of the vendor that the article of food in question had been sold by the vendor in the same condition in which it was sold by the vendor to the Food Inspector. Section 19(3) of the Act clearly contemplates the right of any person by whom a warranty allegedly has been given to appear in the proceedings and at the hearing and give evidence. The benefit of Section 19(2) could have been afforded to respondents 1 and 2 by the court after affording the necessary opportunity to other accused as contemplated by S.19(3) of the Act. The impugned order, hence, cannot be sustained. The learned Magistrate appears to have committed illegality in discharging respondents 1 and 2 without holding the trial against the other accused who were yet to lead evidence in the light of S.19(3) of the Act. It would be anomalous position that respondents 1 and 2 are discharged accepting their plea of warranty as contained in S.19(2) but later on the court may have to give a finding if evidence is led by other accused to show that in fact respondents 1 and 2 were not entitled to the benefit of S.19(2). To avoid conflict of order the learned Magistrate should have been well advised not to discharge respondents 1 and 2 on this ground till the complete trial has taken place.