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TMI Blog1975 (3) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows, may be set out here in tow: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that offence, then, the Court may, notwithstanding anything contained in Sub-section (1) of Section 351 of the CrPC, 1898, or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20. 6. Although, we are not concerned in the appeals before us with the prosecution of the manufacturer , M/s. Gauri Shanker Prem Narain, yet, we find that one of the questions framed for consideration and decided by the Delhi High Court relates to the meaning and scope of Section 20A of the Act. We may mention that a statement has been made at the Bar that this manufacturer has also been acquitted. We do not know whether this acquittal was on the ground that the manufacturer cannot be impleaded under Section 20A of the Act after the trial is concluded by the acquittal of the two accused. It is clear that Section 20A contemplates action which can only be taken during the course of the trial. A separate trial would require a written consent of the Central Government or the State Government or a local authority or of a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority , un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Code, it did not appear to be incumbent upon the Court to hold such a joint trial where such joinder may jeopardise the interests of justice; that, Section 19 of the Act, as it stands, does not require that the warrantor should be separately prosecuted only after the vendor had successfully established that he. could rely upon a warranty covered by Section 19(2) of the Act; that, as both the vendor and his warrantor could get an adequate opportunity to prove their cases in a trial for sale of an adulterated article under the Act, no fight of an accused person, either in law or justice, was jeopardised by such a joint trial; that, in any event, a person accused of such an offence under the Act can always insist that a co-accused should be discharged or acquitted on the ground that he wants to examine him as a witness ; that, Section 19(3) of the Act confers a right upon the vendor and not upon the warrantor; that, no interests of an accused person were prejudicially affected in the case before us by a joint trial of the vendor and the distributor. 9. As regards Section 20A of the Act, the Full Bench held: that, this provision, which is an Exception to Section 351(1) of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (xiii) of the Act, is wide enough to include every kind of seller. Every seller can be prosecuted of an offence created by Section 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 by 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 and separable offence. Section 14 was not meant to carve out an exemption in favour of a 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 under Section 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 vendor in Section 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction within the meaning-of Section 239(d) of Criminal Procedure Code of 1898 corresponding to Section 223 of the Code of 1973? 15. We do not propose to attempt, in this case, the task of defining exhaustively what constitutes the same transaction within the meaning of Section 239 of Criminal Procedure Code of 1898 corresponding to Section 223 of the Criminal Procedure Code of 1973. It is practically impossible as well as undesirable to attempt such a definition of a concept which has to be necessarily elastic. Moreover, this Court has, in the State of Andhra Pradesh v. Cheemalpati Ganeshwara Rao and Anr. (supra), already expressed its views (at page 321), which we respectfully quote and follow, on this question: What is meant by 'same transaction' is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of food sold. It was urged that some vague and general connection or concern of all the co-accused as manufacturers or distributors of the article sold will not do. It had, according to the contention on behalf of the appellant, to be specifically alleged that the accused was concerned with the adulteration or sale of the particular article of food sold. The argument of the learned Counsel for the appellant seems to us to go so far as to suggest that an allegation was indispensable of a participation in some kind of conspiracy to sell the actual adulterated article of food which was sold in order to enable n trial in Which the seller, the distributor, and the manufacturer could be jointly tried for offences which could be looked upon as parts of a single transaction. To accept such an argument would be to import into such a case the need to establish a conspiracy between the accused manufacturer or distributor, as the case may be, and the actual vendor or the last seller to the consumer. We think that such a result would be obviously incorrect. 18. It was pointed out by this Court, in Sarjoo Prasad v. The State of Uttar Pradesh 1974CriLJ1479 that mens rea, in the sense of a gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their common object or intention to sell the article as food is enough. In such a case of a strict liability created by statute, for safeguarding public health, the mental connection between the acts and omissions of the manufacturer, the distributor, and the last vendor would be provided simply by the common design or intention that an article of food, found to be adulterated, should reach and be used as food by the consumer. Each person dealing with such an article has to prove that he has shewn due care and caution by taking prescribed steps in order to escape criminal liability . Otherwise, if one may so put it, a mens rea. shared by them is presumed from a common carelessness exhibited by them. Again, a sale at an anterior stage by a manufacturer or distributor to a vendor and the sale by the vendor to the actual consumer could be viewed as linked with each other as cause and effect. 20. We think that the activities of the manufacturer, the distributor and the retail seller are sufficiently connected, in such a case of sale of an article of food found to be adulterated, by a unity of purpose and design, and, therefore, of a transaction, so as to make their joint trial po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusation made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered. 23. We do not interpret Kadiri Kunhahammad's case (supra) to mean that a joint trial of accused persons is obligatory in every case where a catenation of facts, said to constitute separate but related or cognate offerees, can be viewed as one transaction. 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 requirements of justice there. As pointed out by this Court in V. N. Kamdar and Anr. v. Municipal Corporation of Delhi (supra) the special provisions of Section 20A are only enabling and do not give rise to a mandatory duty. They do not bar either a separate or a joint trial of an accused person u other conditions are satisfied. Similarly, Section 239(d) of the Criminal Procedure Code of 1898, which is reproduced as Section 223(d) of the Criminal Procedure Code of 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the distributor to the vendor in 1967 would be obviously difficult. The appellant, content with the initial acquittal, had probably rested on his oars and not taken the trouble to challenge the correctness of the analyst's report. And, even if that report was quite correct it may not establish the state in which the small quantity of ghee analysed was when it was sold by the distributor. It would impose undue hardship on the distributor to prove, at this distance of time, the actual state of the small quantity of ghee analysed which must have been a part of the consignment supplied by the distributor who is perhaps also relying on the manufacturer's warranty. Although we hold, in agreement with the Delhi High Court, that' the joint trial of the appellant with Laxmi Narain was not illegal, we think that, on the special facts of this case, the interests of justice will be better served by quashing such a stale charge because the appellant's defence will surfer if he is called upon to answer it now. 26. Consequently, we allow these appeals to the extent that we quash the charge against the appellant and order that he be discharged. A. Alagiriswami, J. 27. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary. Ignorance on the part of any, one of them that the food was adulterated would not absolve them of liability. But before the 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 g the distributor passed it on to the vendor and that it was adulterated when the vendor sold it to the consumer. It is not necessary to prove that the article of food was adulterated at all the three stages for the purpose of deciding the validity the charge being framed against all the three of them provided the necessary allegation is there. At that stage the question of proof does, not come in. The validity of the charge has to be decided on the facts put forward as the prosecution case. If it is not established against any one of them that the article of food manufactured, distributed or sold by him was adulterated that person will be acquitted, not because the charge was not valid or was defective but because there was no proof to substantiate the charge. But without that allegation there cannot be said to be a unity of purpose or co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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