Municipal Corporation of Delhi Vs. R.
Sahari, Genl. Manager, Daurala Sugar Mills, Daurala & Ors [1979] INSC 73
(23 March 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION: 1979 AIR 1544 1979 SCR (3) 625 1979
SCC (2) 387
ACT:
Prevention of Food Adulteration Act-Sections
20 & 20-A- Scope of
HEADNOTE:
Toffees sold by a vender to a Food Inspector
having been found to be adulterated, prosecution was launched against him. The
vendor produced a warranty in the Trial Court as a result of which he was
acquitted by the Magistrate. The Magistrate however directed notice to the
respondents under section 20-A for being impleaded and prosecuted on the
grounds that the articles manufactured and distributed the them were
adulterated. On revision, the Session Judge dismissed the same but on further
revision to the High Court, it allowed the revision and set aside the order of
the Magistrate, In the other two Criminal Appeals Nos. 166 & 167 of 1972,
the appellants were impleaded under section 20A before the acquittal of the
last seller and that order was upheld by the High Court. On the question
whether the magistrate was entitled to implead the distributors or
manufacturers under s. 20A even after acquitting the seller on the ground that
he was protected by a warranty.
Dismissing the appeals
HELD :The opening lines of section 20A
clearly contemplate a contingency where the discretionary jurisdiction under
this Act can be exercised only during the trial of any offence, i.e. the stage
at which the magistrate can exercise his jurisdiction under this section must
be before the trial has concluded and ended in acquittal or conviction. A
combined reading of section 20A and 20 is that where a distributor or
manufacturer or any other person is impleaded in the course of a trial, the
obligation to get a fresh sanction for such a person is dispensed with and the
sanction obtained for the last seller in the trial, will ensure for the benefit
of the prosecution of the other person impleaded. Therefore protection of
section 20 is not available if the parties concerned are impleaded after the
trial was over. The special statutory concession is given to the prosecution
only if the conditions mentioned in s. 20A are fulfilled and not otherwise.
[627B-C, F-H] V. N. Kamdar v. Municipal Corpration of Delhi [1974] 1 S.C.R. 157
followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos.
152-153 of 1972.
From the Judgment and Order dated 28-10-1970
of Delhi High Court in Criminal Revision Nos. 426/68 and 5/70.
AND CRIMINAL APPEAL NOS. 166-167 OF 1972 From
the Judgment and Order dated 28-10-1970 of Delhi High Court in Criminal
Revision Nos. 72-73/68.
626 Soli J. Sorabji, Addl. Sol. Genl. of
India, B. P. Maheshwari and Suresh Sethi for the Appellant in Crl. A. Nos.
152-153/72.
V. M. Tarkunde, S. C. Malik and B. R.
Agarwala for RR 4 in Crl. A. 152/72.
H. K. Puri for RR. 3 in Crl. A.153/72 Mrs.
Urmila Sirur for RR. 3 in Crl. A. No. 152/72.
B. K. Jaggi for the Appellant in Crl. A. No.
166- 167/72.
H. S. Marwah and M. N. Shroff for RR. in Crl.
A. Nos. 166-167/72.
B. P. Maheshwari and Suresh Sethi for the
Intervener.
The Judgment of the Court was delivered by
FAZAL ALI, J. These appeals by certificate arise out of a common Judgment
delivered by the High Court of Delhi and will be disposed of by us by one
judgment. In Appeals Nos.
152-153/72, one Gian Singh sold toffees to
the Food Inspector and as the toffees were found to be adulterated, a
prosecution was launched against him under S. 7/16 of the Prevention of Food
Adulteration Act. Gian Singh, however, produced in course of the trial a
warranty given by the distributors and manufacturers as a result of which the
Magistrate acquitted accused Gian Singh. After having acquitted Gian Singh, the
Magistrate issued notice under S. 20A against the Respondents for being
impleaded and prosecution on the ground that the articles manufactured by the
distributors were adulterated. The respondents went up in revision to the
Sessions Judge which was dismissed. But on further revision to the High Court
the High Court allowed the petition and set aside the order of the Magistrate
impleading the respondents. In the other two appeals i.e. Crl. Appeals Nos. 166
and 167/1972, the manufacturers were impleaded under S. 20A before the acquittal
of the last seller and that order was upheld by the High Court and, hence these
appeals before us by the appellants.
The common question of law that arises for
consideration in all these appeals is: whether or not the Magistrate is
entitled to implead the distributors or manufacturers under S. 20A even after
acquitting the last seller on the ground that he is protected by a warranty. In
other words, the question for decision in these appeals turns upon the
interpretation of S. 20A and S. 20 of the Prevention of Food Adulteration Act.
S. 20A runs thus:- "Where at any time during the trial of any offence
under this Act, alleged to have been committed by any person, not 627 being the
manufacturer, distributor or dealer of any of food, the Court is satisfied, on
the evidence adduced before it, that such manufacturer, distributor or dealer
is also concerned with the offence, then the Court may, notwithstanding
anything contained in sub- section(1) of S. 351 of the Code of Criminal
Procedure, 1898, or in Section 20 proceed against him as though a prosecution
had been instituted against him under S. 20".
The opening lines of S. 20A clearly
contemplate a contingency where the discretionary jurisdiction under this Act
can be exercised only during the trial of any offence, that is to say, the
stage at which the Magistrate can exercise his discretion under this Section
must be before the trial has concluded and ended in acquittal or conviction. S.
20 which precedes S. 20-A runs thus:- "S. 20 (1) No prosecution for an
offence under this Act, not being an offence under S. 14 or section 14A, shall
be instituted except by or with written consent of the Central Government or
the State Government or a person authorised in this behalf, by general or
special order, by the Central Government or the State Government;
Provided that a prosecution for an offence
under this Act may be instituted by a purchaser referred to in section 12, if
he produces in court a copy of the report of the public analyst alongwith the
complaint.
(2) No court inferior to that of a
Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence under this Act.
(3) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973, an offence punishable under subsection (IAA)
of Section 16 shall be cognizable and non-bailable".
A combined reading of S. 20A and S. 20 is
that where a distributor or manufacturer or any other person is impleaded in
the course of a trial, the obligation to get a fresh sanction for such person
is dispensed with and the sanction obtained for the last seller in the trial
will ensure for the benefit of the prosecution of the other person impleaded
also and no further sanction is necessary. It is manifest that this special
statutory concession is given to the prosecution only if the conditions
mentioned in S. 20A are fulfilled and not otherwise. In other words, the
protection of S. 20 is not available to the prosecution if the parties
concerned are impleaded after the trial is over. In such a case, a fresh trial
will have to be started by obtaining sanction under 628 S. 20. This matter is
no longer res integra as it has been fully considered by this Court in V. N.
Kamdar v. Municipal Corporation, Delhi(1) where this Court observed as follows:-
"....In order that the manufacturer, distributor or dealer may be
impleaded under S. 20A, it is necessary that there should be a trial for an
offence committed under the Act by a person and that the manufacturer,
distributor or dealer must be concerned in the offence. When once the
manufacturer, distributor or dealer is impleaded, the trial proceeds as if he
is also an accused in the case. That is made clear by the closing words of the
section. As already indicated, no prosecution for an offence under the Act can
be instituted by a Food Inspector without the sanction specified in S. 20....
The real purpose of enacting S. 20A is to avoid. as far as possible,
conflicting findings. If, in the prosecution instituted against the vendor, it
is found that the vendor has sold the article of food in the same state as he
purchased it and that while it was in his possession it was properly stored,
and the vendor is acquitted, it would look rather ridiculous if in the
prosecution against the manufacturer, distributor or dealer, it is found on the
evidence that he did not give a false warranty, but that the article was not
stored properly while it was in the possession of the vendor or that he did not
sell the article in the same stage as he purchased it. This being so, the
object of the legislature in enacting the section will be frustrated if a
Magistrate were to exercise his discretion improperly by failing to implead the
manufacturer, distributor or dealer under S. 20A in a case where he should be
impleaded. But that is no reason to hold that a separate prosecution against
the manufacturer, distributor or dealer would be barred, if he is not impleaded
under s. 20A, and tried along with the person who is alleged to have committed
an offence under the Act. In order to avoid multiplicity of proceedings and
conflict of findings, it is imperative that the Magistrate should implead these
persons under S. 20A whenever the conditions laid down in the section are
satisfied. As I said, it is a far cry from this to say that if this is not
done, the manufacturer, distributor or dealer would get an immunity from a
separate prosecution." For these reasons, therefore, and in the facts and
circumstances of the case so far as Cr. Appeals No. 152- 153/1972 are
concerned, the 629 Magistrate had no jurisdiction to implead the respondents
after having concluded the trial by the acquittal of the last seller.
Similarly, the Magistrate was fully justified in Crl. Appeals No. 166 and
167/72 in impleading the appellants during the course of the trial as the trial
was still continuing and the case would, therefore, squarely fall under S. 20A
of the Act and no further sanction would be necessary. For these reasons,
therefore, all the appeals are dismissed.
N.K.A. Appeals dismissed.
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