Gujarat High Court
I.M. Nayak vs Kantilal Ambalal Shah And Anr. on 22 February, 1972
Author: D.A. Desai
Bench: D.A. Desai
JUDGMENT D.A. Desai, J.
1. Appellant I.M. Nayak is a Food Inspector of The Surat Municipal Corporation. He filed a complaint registered as Prevention of Food Adulteration Case No. 93 of 1969 in the court of the Special Judicial Magistrate, First Class, Municipality Surat against (1) Shri Kantilal Ambalal Shah, Proprietor of Comet Fruits and Chemical Industries, Ahmedabad and (2) Shri Jayantilal Thakordas Saraiya, alleging that accused No. 1 manufactured for sale honey, an article of food, under the trade name Kashmir Madhu, which was not according to the standard prescribed in Appendix 'B' annexed to the Prevention of Food Adulteration Rules, 1955. The standard for honey is prescribed at item No. A. 07.03, which reads as under:
A. 07. 03.- Honey means the food derived entirely from the work of bees operating upon the nectar of flowers and other sweet exudation of plants. It shall not contain more than (a) 25 per cent of moisture, (b) 0.5 per cent of ash, and (c) 10 per cent of sucrose. The minimum reducing sugar content shall be 60 per cent, Fiche's test should be negative.
It was alleged that the complainant visited the shop of accused No. 2 Jayantilal Thakordas on 28th January 1969 in the morning around 10-00 A.M. in company of two Panchas Parbhubhai Premabhai Patel and Kumudchandra Hasmukhlal Thakkar. The complainant demanded pure honey from accused No. 2 and accused No. 2 gave a bottle of Kashmir Madhu manufactured by accused No. 1. The complainant served an intimation to accused No. 2 that he would purchase three bottles of Kashmir Madhu each weighing 250 grams for the purpose of analysis and after going through all formalizes namely purchasing three bottles and paying for the same and obtaining receipt, then opening up each bottle and dividing its content into three parts and filling each part in empty clean bottles taken by the complainant with him, each bottle was corked and sealed with the slips bearing panchas' signatures and after wrapping up each bottle properly, the complainant handed over one bottle of sample to accused No. 2 and sent one bottle bearing No. 325 to Public Analyst of Surat Municipal Corporation along with specimen impression of the seal and copy of the memorandum, on the very day. The complainant received the report of the Public Analyst which showed that the sample of honey did not conform to the standard prescribed under the Rules and actually fell below the prescribed standard and some of its constituents which were present in the sample were in excess of the prescribed limits of variation. After obtaining the necessary sanction, the complainant filed the complaint. At the trial the complainant I. M. Nayak was examined at Exh. 16. He produced in his evidence intimation Exh. 17 served by him upon accused No. 2 and receipt Exh. 18 passed by Accused No. 2 acknowledging the payment for the three bottles of honey purchased by the complainant, the report of the Public Analyst Exh. 20, the report submitted for sanction Exh. 21 along with the sanction accorded under Section 20 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) by the Medical Officer of Health to the launching of the prosecution. He also produced the resolution Exh. 22 of the Surat Municipal Corporation empowering the Medical Officer of Health to accord sanction as required by Section 20 of the Act to the inspectors mentioned in the resolution to launch prosecution for breach of any of the provisions of the Act. The learned Magistrate framed charge Exh. 21 against both the accused for having committed an offence under Section 7 read with Section 16 of the Act. Both the accused pleaded not guilty to the charge. The complainant also examined Kumudchandra Hasmukhlal Thakkar in whose presence three bottles of Kashmir Madhu were purchased and process of taking sample, dividing into three parts and sealing the same was carried out. The panchanama is produced at Exh 35. Accused No. 1 filed his written statement at Exh. 36. Accused No. 2 filed his written statement at Exh. 37. They did not examine any witness in their defence.
2. The learned Magistrate held that accused No. 2 sold honey an article of food which was adulterated and accordingly convicted him for having committed an offence under Section 7 read with Section 16 of the Act and sentenced him to undergo imprisonment till rising of the court and to pay a fine of Rs. 300/- in default to suffer S.I. for three months. The learned Magistrate held that even though accused No. 1 was shown to be the manufacturer of the article of food in question, there is nothing to show that he had sold the same to accused No. 2 nor is there any evidence to show that accused No. 1 sold article of food at Surat and accordingly, held accused No. 1 not guilty of the offence with which he was charged and acquitted him. The original complainant Food Inspector having been aggrieved with this order acquitting accused No. 1 has preferred this appeal.
3. Accused No. 1 appears to be carrying on business under the name and style of Comet Fruits and Chemical Industries at Ahmedabad. He appears to be a manufacturer of commodity known as Kashmir Madhu. According to the prosecution accused No. 1 sells and offers for sale honey under the trade name Kashmir Madhu while according to accused No. 1 Kashmir Madhu is an Ayurvedic medicinal preparation and it is not honey. Sealed bottles containing Kashmir Madhu with the labels thereon bearing the name Kashmir Madhu manufactured by Comet Fruits and Chemical Industries were stored for sale by accused No. 2 in his shop bearing the name Saraiya Medical Stores. The complainant purchased three sealed bottles of Kashmir Madhu and seals were opened in the presence of accused No. 2 and mixing the contents of all the three bottles the total quantity was divided into three equal parts and each part was poured in a bottle and each bottle was sealed. Now, there is no dispute that the sample of honey when analysed by the Public Analyst did not conform to the standard prescribed for honey in Appendix 'B' annexed to the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). Therefore, this Kashmir Madhu if it is honey and if it is not an Ayurvedic medicinal preparation would be an adulterated article of food. There is no dispute that if Kashmir Madhu is taken to be honey, it is shown to be adulterated article of food. Accused No. 2 is convicted for having sold an adulterated article of food to the Inspector and he has not challenged his conviction by way of appeal.
4. The question raised in this appeal is whether accused No. 1 the manufacturer of Kashmir Madhu could have been tried with accused No. 2 in the court of Special Judicial Magistrate, First Class Municipality at Surat and if he could be tried whether he is shown to have committed any offence in this case. In fact there was no serious controversy on the point that accused No. 1 who is admittedly a manufacturer of Kashmir Madhu would be committing an offence punishable under Section 16 of the Act because on his own admission he is the manufacturer of Kashmir Madhu and there is nothing to show that Kashmir Madhu is an Ayurvedic medicinal preparation. This suggestion that it was an Ayurvedic medicinal preparation can be rejected as a mere camouflage created in order to wriggle out of the situation in which accused No. 1 would find himself, once it is shown that it was an adulterated article of food.
5. The standard prescribed for honey in item No. A. 07.03 in Appendix 'B' has been set out above by me. 'Madhu' is a Sanskrit word which in ordinary parlance is translated as honey, Gujarati rendering of which is 'Madh'. Now, addition of 'Kashmir' word to the word 'Madhu', unless it is shown to have some medicinal propensities or chemical compounds, would not, by giving it a certain name, become an Ayurvedic medicinal preparation. The standard prescribed is that anything which comes under the name of Madhu shall not contain more than (a) 25 per cent of moisture, (b) 0,5 per cent of ash and (c) 10 per cent of sucrose. The minimum reducing sugar content shall be 60 per cent; and Fiche's test should be negative. The report of the Public Analyst in relation to the sample of Kashmir Madhu purchased from accused No. 2 is as under:
Total Ash......_.................0.38% Moisture......_.......................19.1% Sucrose..........................14.1% Reducing sugar....._.............51.2% Fiche's test, strongly positive.
Saccharine....................._ absent.
Colour..........._.............dye absent.
Gum..............................Present.
At least in three respects the sample did not conform to the standard prescribed in that sucrose was 14.1 %, while the standard prescribed is to be not more than 10 %. The minimum reducing sugar content ought to be 60% according to the standard prescribed while it was 51.2%. Fiche's test ought to be negative while it was strongly positive. Therefore, in these three respects the sample did not conform to the standard prescribed and was not within the degree of permissible variability. It can readily be adjudged as an adulterated article of food. Various constituents found by the Public Analyst did not indicate that it was a medicinal preparation. The Public Analyst was not called for cross-examination. Accused No. 1 except saying that it is an Ayurvedic medical preparation has not stated whether it is prepared according to any standard formula in Ayurvedic Pharma-Copia, for what were its propensities. By merely labeling an article of food as something other than an article of food it does not cease to be one. Added to this is the fact that when the complainant demanded from accused No. 2 that he wanted to purchase honey, he was offered the bottle of Kashmir Madhu, meaning thereby that whatever be the trade name, it was sold as honey. Therefore, it appears that Kashmir Madhu is only a trade name for the honey put on market for sale by accused No. 1.
6. Accused No. 1 stated in his statement Ex. 25 recorded under Section 342 of the Criminal Procedure Code that he is the sole proprietor of the Comet Fruits & Chemical Industries (hereinafter referred to as Comet Company for brevity's sake), and Kashmir Madhu is his product. He further stated that he does not sell it as pure honey, but he sells it as Ayurvedic medicine. Admission of accused No. 1 in his statement would show that he is the manufacturer of the commodity known as Kashmir Madhu, manufactured by Comet Company a name under which accused No. 1 is carrying on business and put in the market bearing trade name Kashmir Madhu. He does not say either in his statement under Section 342 or written statement Exh. 36 what are its chemical or medicinal propensities or components. Mr. H. B. Shah, learned advocate who appeared for original accused No. 1 showed to me the label which is pasted on the bottle showing Kashmir Madhu. The label did not show what were the ingredients or components of the so-called Ayurved medicinal preparation. There is neither any suggestion in the statement nor in the cross-examination nor on the label how an article of food like honey by mere labelling becomes Ayurvedic medicinal preparation. Therefore, the conclusion is inescapable that Kashmir Madhu is nothing else but honey and is offered for sale as honey. Honey under the name of Kashmir Madhu is manufactured for sale by accused No. 1 and is put on market by him as manufacturer and this honey is shown to be adulterated one.
7. Now, before I turn to the main controversy between the parties, 1 would like to dispose of two incidental contentions raised by Mr. H. B. Shah for accused No. 1. Mr. Shah urged that even if a manufacturer can be joined in prosecution against a vendor under Section 20A of the Act yet, there is nothing to show that bottles of Kashmir Madhu purchased by the Food Inspector were sold by accused No. 1 to accused No. 2. A suggestion was made in the cross-examination of the complainant that accused No. 2 told him at the time of the purchase of the bottles of Kashmir Madhu that accused No. 2 was selling it as an Ayurvedic medicine and he had purchased it as such from Vaidyanath Ayurvedic Bhavan Pvt. Ltd. and also accused No. 2 showed the bills of purchase to the complainant. This suggestion is denied. Surprisingly, accused No. 2 has not stated in his statement that he had purchased the sealed bottles of Kashmir Madhu from Vaidyanth Ayurvedic Bhavan Pvt. Ltd. No one from Vaidyanath Ayurvedic Bhavan Pvt. Ltd. is examined to show that company has sold the bottles of Kashmir Madhu to accused No. 2. Mr. Shah urged that at least there is nothing in the evidence to show that it was accused No. 1 who had sold bottles of Kashmir Madhu to accused No. 2. There is no direct evidence to that effect. But if it is admitted that accused No. 1 is the manufacturer of an article of food sold under the name of Kashmir Madhu, manufactured by Comet Company, of which, admittedly accused No. 1 is the proprietor, conclusion 'is inescapable that whenever a bottle bore the name Kashmir Madhu manufactured and bottled by Comet Company in sealed condition comes in the hands of a retailer it must be one manufactured by accused No. 1. If these bottles came to the hands of accused No. 2 who runs a medical store, the necessary and legitimate inference is that he must have purchased them either from accused No. 1 straight or through an authorised dealer or distributor appointed by accused No. 1. There is nothing to indicate that Vaidyanath Ayurvedic Bhavan Private Limited is selling honey under the name Kashmir Madhu. Even if it is so selling, it could not put on its commodity a label showing a commodity having been manufactured by Comet Company. Therefore, there is no substance in the contention of Mr. Shah that on the evidence, it is not satisfactorily established that accused No. 2. who, I would presently point out, would be vendor, purchased bottles of Kashmir Madhu from accused No. 1.
8. Second incidental contention of Mr. Shah was that complainant I. M. Nayak was not qualified to be appointed as Food Inspector of Surat Municipal Corporation and therefore, he was incompetent to initiate proceedings under the Act and the entire trial would be vitiated. Mr. Shah in terms submitted that the statute prescribes certain qualifications before any person can be appointed as Food Inspector and only such qualified Food Inspector, if he is authorised by the person who has power to sanction prosecution under Section 20, can lodge a complaint, and in the absence of complaint from a competent complainant, the court cannot take cognizance of the offence and the whole trial would be vitiated.
9. Now, it must at once be stated that such a contention appears not to have been taken before the trial court. It is being taken for the first time in this Court. If such a contention was taken in the trial court, the complainant would have necessarily put forth all the evidence on the record to show that he was qualified to be appointed as Food Inspector and had been properly and validly appointed as Food Inspector. The contention which for its decision depends upon the facts, must necessarily be agitated before the trial court, because if such a contention is allowed to be taken for the first time at the appellate stage the party against whom such contention is canvassed, may suffer serious prejudice because it may not have put forth certain facts on record which were taken for granted. To illustrate, the Food Inspector filed the complaint after obtaining necessary sanction from the Medical Officer of Health. He states in his complaint that he is a Food Inspector of the Surat Municipal Corporation. He so states in his examination-in-chief. Suppose there is no cross-examination and yet this Court proceeds to examine whether all those meticulous details which must be gone into before a person can be appointed as Food Inspector were in fact gone into or whether the person appointed as Food Inspector was not qualified for being appointed as such though appointed years back as Food Inspector and who must have by now launched hundreds of prosecutions and in each of which case his status as Food Inspector or his qualification to be appointed as Food Inspector might have gone unchalleged, it would cause serious prejudice to the prosecution. However, it is said that in criminal trial, the burden entirely rests upon the prosecution to prove everything to sustain the charge. Some times, this proposition is rather too broadly stated. It is undoubtedly true that every fact, which constitutes the ingredient of an offence, must not only he alleged but proved and every ingredient of the offence must be proved by the prosecution by reliable evidence. Having said this, it must also be conceded that if a sanction to prosecute which is required by Section 20 is placed on record and which on the face of it appears to be illegal or invalid, a contention may be allowed to be taken at any stage about its validity or otherwise. But if a man applied to be appointed as Food Inspector and came before a Selection Committee and put forth all his qualifications and was finally appointed as Food Inspector, almost a decade back, with his appointment having been notified in the official gazette, yet, ten years after his appointment, without any challenge in the trial Court, a contention is taken for the first time in an appeal against acquittal, that he was not validly appointed as Food Inspector, or he lacked the necessary and essential qualifications for being appointed as Food Inspector, I shudder at the idea how the prosecution should meet this challenge. Therefore, in fact, strictly speaking, such a contention should not be permitted to be taken at this stage.
10. Mr. Shah however pointed out to me that the defence did give a notice or intimation to the prosecution in the trial Court hat it proposes to challenge, in this case, the validity of appointment of the complainant, as Food inspector by making certain suggestions in the cross-examination of the complainant himself. Mr. Shah in this connection referred to the cross-examination in para 4 of the evidence of the complainant. The complainant was asked whether his name was notified in the Gujarat Government Gazette, to which he gave an answer in the affirmative. He also stated that he had passed the examination awarding diploma of Sanitary Inspector prescribed by the Bombay & Gujarat States. He denied having any personal knowledge as to what rules have been framed by the Gujarat State for appointment as Food Inspectors. He also denied having any knowledge about publication of notification appointing Sanitary Inspectors in this State. Thereafter an omnibus question is asked. It was suggested that his appointment was not validly made and the witness denied the suggestion. At further stage in the cross-examination, the witness stated that he was first appointed as Sanitary Inspector and subsequently he was appointed by the Corporation as Food Inspector in the year 1960 or 1961. He also stated that the order of appointment was in writing and produced a copy of it at Exh. 22. Now, Exh. 22 is not exactly a copy of the appointment order, but it is a copy of the resolution adopted by the Municipal Corporation on 20th January 1967, by which the Medical Officer of Health of Surat Municipal Corporation was authorised to sanction prosecution as required by Section 20 of the Act. What should be made out of this cross-examination passes comprehension. Which part of the qualification of the witness was not acceptable to the defence is understandable. It was however pointed out to me by Mr. Shah that Section 9 provides that:
The Central Government or the State Government may, by notification, in the Official Gazette, appoint such persons as it thinks tit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be.
11. Mr. Shah also pointed out that Rule 8 provides qualifications of Food Inspector. Rule 8 reads as under:
8. Qualifications of Food Inspector.- A person shall not be qualified for appointment as food inspector, unless he:
(i) is a Medical Officer in charge of the health administration of a local area, or (ii) is a Graduate or a Licentiate in Medicine, and has received at least one month's training in food inspection and sampling work approved for the purpose by the Central Government or the State Government;
(iii) is a qualified Sanitary Inspector having an experience as such for a minimum period of one year and has received at least three months' training in food inspection and sampling work in any of the laboratories referred to in Clause (i) of Rule 6; or
(iv) is a Graduate in Science with Chemistry as one of the subjects or a Graduate in Agriculture, Food Technology or Dairy Technology, and has received at least three months' training in food inspection and sampling work in any of the laboratories referred to in Clause (i) of Rule 6:
Provided that a person who is a Food Inspector on the date of commencement of the Prevention of Food Adulteration (Amendment) Rules, 1968, may continue to hold office as such subject to the terms and conditions of service applicable to him, even though he does not fulfill the qualifications laid down in Clauses (i) to (iv).
It is true that in exercise of the powers conferred by Section 9, Rule 8 has been enacted which prescribes qualifications which a Food Inspector, before he is so appointed, must possess. Sub-clause (iii) of Rule 8 provides that a qualified Sanitary Inspector having an experience as such for a minimum period of one year and having received at least three months' training in food inspection and sampling work in any of the laboratories referred to in Clause (i) of Rule 6, can be validly appointed as Food Inspector. The complainant was a Sanitary Inspector. He has been appointed as Food Inspector from 1960-61. Mr. Shah however urged that there is nothing to show that before he was appointed as Food Inspector, he had experience as Sanitary Inspector for a minimum period of one year; and there is nothing to show that the complainant had received at least three months' training in food inspection and sampling work in one or the other of the laboratories referred to above. Now, no question is asked to the complainant that he had not the necessary experience either as Sanitary Inspector or he had not received the necessary training in food inspection and sampling work and that too in a particular laboratory. The complainant may have as well answered every question by putting forth documentary evidence that he possessed all the qualifications. Therefore, permitting such a contention on the scanty evidence brought out by way of very haphazard cross-examination would certainly cause prejudice to the other side and on the material placed there is nothing to show that the complainant's appointment as Food Inspector was not valid. It is not expected of the prosecution that whenever a food inspector launches a prosecution for an offence under the Prevention of Food Adulteration Act, he must start his examination-in-chief by reciting chronologically events from the time he was born to the time he acquired all the qualifications and what he was doing till the date of the complaint. I am sure that is not expected of the prosecution. If his appointment is challenged he must necessarily make good the same but in the absence of any serious challenge and in the absence of any pointed and specific suggestion in the cross-examination, I am not prepared to accept the contention of Mr. Shah that on the material placed on record, the complainant's appointment as Food Inspector is not valid. This contention must, therefore, be negatived.
12. Real controversy between the parties centres round the question whether accused No. 1, the manufacturer of Kashmir Madhu can be tried with accused No. 2 a vendor of the adulterated article of food at Surat by the court of Special Judicial Magistrate, First Class, Municipality, at Surat having a jurisdiction within the area over which jurisdiction of the Municipal Corporation at Surat extends. The learned Magistrate has accepted the contention of accused No. 1 that accused No. 1 could not be tried and convicted by him. It appears that the attention of the learned Magistrate was not drawn to Section 20A which was introduced by Section 12 of the Amending Act 49 of 1964 with effect from 1st March 1965. On reading paragraph 10 of the judgment of the learned Magistrate it appears that the learned Magistrate felt difficulty in entertaining the case against original accused No. 1 on the ground that no offence was committed by accused No. 1 within his jurisdiction. This difficulty as felt by the learned Magistrate who accentuated by the additional finding that accused No. 1 is not shown to have sold sealed bottles of Kashmir Madhu to accused No. 2. Second part of the difficulty arises out of an improper and incorrect appreciation evidence, which aspect I have already dealt with. But even apart from that Section 20A furnishes a complete answer to the contention whether the learned Magistrate at Surat would have jurisdiction to try the case against accused No. 1.
13. Section 20A reads as under:
20. A. Power of court to implead manufacturer, etc.- 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 (Act V of 1898), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.
The provision contained in Section 20A would permit the learned Magistrate to join any manufacturer, distributor or dealer of any article of food as accused in the case in which any person other than the manufacturer, distributor or dealer of the adulterated article of food is being tried for any offence under the Act, if on the evidence adduced before it, the court is satisfied that such manufacturer, distributor or dealer is also concerned with the offence. Bar of Section 351 of the Criminal Procedure Code to such joinder of the manufacturer, distributor or dealer in the case against any person other than manufacturer, distributor or dealer is removed by latter part of Section 20A. Section 20A appears to have been introduced in order to see that the real culprit does not escape the tentacles of law. If an article of food is manufactured for sale and is sold in sealed containers and if it is found to be adulterated, the really guilty person is the manufacturer or the distributor or the dealer of such article of food. Now, that Food Inspector generally approaches the vendor who is the last in chain, from whom the commodity passes to the consumers. If he is selling the article under a warranty he might have a good defence; but if he is not selling under a warranty, that last vendor would be held guilty for the offence but those who really fatten themselves by putting on the market adulterated articles of food would escape the tentacles of law because prosecution ends with the conviction and sentence of the vendor. It is in order to do away with this anomaly that Section 20A was introduced on the recommendation of the Joint Committee, appointed to consider further amendment of the Prevention of Food Adulteration Act, 1954. The committee recommended that for want of a provision enabling the court, during trial of an offence against the vendor of an adulterated article of food, to implead the manufacturer, distributor or dealer of such article of food, many manufacturers, distributors and dealers in such article go scot free. In order to have an effective check at all levels, Section 20A was introduced. It was given an overriding effect over Section 351 of the Criminal Procedure Code, a reference to which would give us some idea as to the exact scope and ambit of Section 20A.
14. Section 351(1) of the Criminal Procedure Code permits a Criminal Court to detain any person attending the court for the purpose of inquiring into or trial of any offence of which such court can take cognizance and which from the evidence may appear to have been committed and may be proceeded against as though he had been arrested or summoned. If during the trial of a case, the court feels that someone attending the court appears to have committed the offence that ,is being tried and can be proceeded against, it can straightway take cognizance of the case against such a person provided the court was competent to take cognizance against that accused if he was independently brought before the court as an offender. That would immediately raise the question of jurisdiction of that court to take cognizance of an offence against such person. Every court having defined local area of its jurisdiction can take cognizance of the offence committed within its jurisdiction as provided in Chapter XV Sections 177 onwards of the Criminal Procedure Code. Section 351(1) can only be resorted to by the court provided it could have taken cognizance of the offence against that person who is sought to be joined at the trial of another person if he was initially brought before the court. Sub-section (2) of Section 351 casts a duty upon the court to begin trial afresh when power is exercised under Section 351 (1). But the limitation placed on the power of the court by Section 351(1) is that it can proceed against any such person attending the court if and only if that court could have taken cognizance of the offence alleged to have been committed by that person if he was brought before the court. In other words, such a person can only be joined if he is shown to have committed an offence within the jurisdiction of that court. Now, if Section 20A was not given overriding effect over Section 351 it would be rendered nugatory and ineffective because the manufacturer, distributor or dealer may not have committed any offence within the jurisdiction of the court trying an offence under the Act against vendor. In view of the provision contained in Section 20A the court would be competent to join any manufacturer, distributor or dealer who is shown to be concerned with the commission of an offence notwithstanding anything contained in Section 351 of the Code of Criminal Procedure. That gives a clue to the intention of the Legislature which clearly manifests itself by lifting of the bar of Section 351, thereby enabling the learned Magistrate to try any manufacturer, distributor or dealer along with any other person who is being tried by him notwithstanding the fact that the court had no jurisdiction to take cognizance of an offence against such manufacturer, distributor or dealer. Therefore, on a plain reading of Section 20A it is crystal clear that if the court is trying any person other than the manufacturer, distributor or a dealer for any offence under the Prevention of Food Adulteration Act and if in course of the trial, the court is satisfied that the manufacturer, distributor or dealer of such adulterated article of food is concerned with the commission of offence then notwithstanding the fact that the court had no jurisdiction to take cognizance of the offence against such manufacturer, distributor or dealer, he can be joined and tried by the court in view of the enabling provision enacted in Section 20A of the Prevention of Food Adulteration Act,
15. It was however contended that Section 20A can be invoked only if the prosecution is against a manufacturer, and the distributor or dealer is required to be joined or if it is against a distributor, and the manufacturer or dealer is required to be joined or if it is against a dealer and the manufacturer or distributor is required to be joined, but it cannot be invoked if the vendor is being tried and the manufacturer or distributor or dealer is required to be joined. This interpretation runs counter to the plain grammatical construction of the language used in the section. The section says that during the trial of any offence alleged to have been committed by any person not being manufacturer, distributor or dealer of an adulterated article of food, if the court is satisfied that the manufacturer distributor or dealer is concerned with the commission of that offence, such manufacturer, distributor or dealer can be joined with other offender. Section 20A cannot be invoked where the prosecution is lodged against a manufacturer, distributor or dealer. It can only be invoked where the prosecution is initially lodged against any person other than the manufacturer, distributor or dealer. In other words, if the vendor is being tried and the court in the course of trial is satisfied that a manufacturer, distributor or dealer is concerned with the commission of an offence the latter can be joined as a co-accused with the vendor. The vendor of an article is some one other than a manufacturer or distributor or dealer. At one stage, even Mr. Thakore for the Corporation contended that there is no difference between the vendor and dealer of an article of food. 1 would presently refer to some sections and point out that the Parliament has used the words 'vendor' and 'dealer' to mean different things as far as the provisions of this Act are concerned.
16. It is necessary first to ascertain what is the dictionary meaning of word 'vendor' and 'dealer' because neither the word 'vendor' nor 'dealer' is defined in the Act. In Webster's Dictionary II edition 'deal' as a verb transitive means to portion out, to distribute, to give, administer. It may also some times mean to behave, to act or conduct oneself. 'Deal' as a noun means dealing. 'Dealer' means one who deals, specifically, a trader, a trafficker, a shop keeper, a broker, a merchant. It also means one who shuffles and distributes the cards in a card game. 'Vendor' is a noun from the verb 'to vend which as verb transitive means selling, transferring to another person for a pecuniary equivalent; and as verb intransitive it means to sell goods. 'Vend' as noun means sale. 'Vendor' means one who vends, or sells. Broadly stated 'vendor' and 'dealer' may mean the same thing. In Chamber's Twentieth Century Dictionary 'deal' as noun means a portion, an indefinite quantity, a large quantity, the act of dividing cards, a bargain etc. and dealer means one who deals or whose turn it is to deal or who had dealt the hand in play; a trader. 'Vend' means to sell or offer for sale and deal especially in small way. It may appear that while a dealer deals in a big way, the vendor deals in a small way. I would however not attach much importance to this quantity aspect. In my opinion, when the three words are used in juxtaposition namely, manufacturer, distributor or dealer, it only means that they are inter-related in relation to a commodity manufactured and put in the market. Manufacturer manufactures the commodity. As between him and the distributor there is no sale. Ordinarily in the world of commerce, the distributor distributes for commission or on behalf of the manufacturer. There is also a category known as authorised dealer of a commodity. He may have a sole selling agency or sub-selling agency or some such agency. But three expressions 'manufacturer' 'distributor' and 'dealer' have to be interpreted in the juxtaposition in which they are found and in relation to a commodity of which 'A' is manufacturer, 'B' is a distributor and 'C' is a dealer. There may not be a distributor and there may not be a dealer but the manufacturer has got to be there because without him the commodity does not come into existence. But in a given case the manufacturer after manufacturing the commodity may pass it on to the distributor who in turn may pass it to the dealer and vendor may be the ultimate retailer or a small petty trader from whom the commodity passes to the ultimate consumer. Therefore, when Section 20A refers to manufacturer, distributor or dealer, they are three in relation to the same commodity or article of food which if found to be adulterated on sale by the vendor, any of them who is shown to be concerned with the commission of the offence can be joined at the trial of the vendor. Vendor for the purpose of Prevention of Food Adulteration Act is some one other than the dealer, other than the distributor or other than the manufacturer. Mr. Shah of course attempted to urge that the vendor is one who vends, meaning thereby one who sells. As an illustration Mr. Shah, urged that the manufacturer after manufacturing an article of food if he proceeds to sell it, he becomes a vendor. It may be so but he does not cease to be a manufacturer of the commodity and the word 'vendor' is not used in the Act in this sense. A reference to few sections will clarify the situation. Section 7 prohibits manufacture, sale etc. of adultrerated articles of food. It says no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute various things mentioned therein. One who manufactures them is a manufacturer and it is in this context that the word is used in Section 20A. One who distributes it is a distributor. One who stores may as well be a dealer. One who sells, if he is neither a manufacturer nor a distributor nor a dealer is a vendor. Contravention of Section 7 is punishable under Section 16. Section 14 provides that no manufacturer, distributor or dealer of any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. The Explanation annexed to the section shows that the expression 'distributor' shall also include a commission agent. Section 19(1) provides that 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. Sub-section (2) provides that 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 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 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 will again appear from the provision contained in Sub-section (2) that defence of warranty is open to the vendor only. Reading Sections 14 and 19 together the scheme that emerges is that a manufacturer, distributor or dealer is prohibited from selling any article of food to any vendor without a warranty. If a warranty is given, it shall be a complete defence to the vendor. Now, this vendor who is entitled to a warranty from a dealer, would be clearly other than a dealer. If the dealer himself sells the article of food, he thereby does not become a vendor entitled to any warranty from himself as a dealer. That would be begging the question. A manufacturer after manufacturing article sells to a vendor, who would sell it to the ultimate consumer. The vendor would be entitled to a warranty from the manufacturer. If on the contrary manufacturer himself proceeds to sell the article of food manufactured by him, he cannot say that he is entitled to some warranty from himself merely because he sells direct to the consumer. He can never be styled as a vendor. Therefore, the word 'vendor' is used in the Prevention of Food Adulteration Act to connote someone other than the manufacturer, distributor or dealer. The vendor appears to be one who sells the commodity to ultimate consumer not in his capacity as manufacturer, distributor or dealer. A dealer if he sells it he cannot be clothed with two capacities namely one as a dealer and another as a vendor. The moment he sells and if the article is found to be adulterated, he is answerable and he cannot be heard to say that he had some warranty from any manufacturer or distributor. If this defence is not open to him, it must be understood that the word 'dealer' is used to indicate some such person as authorised dealer, between him and distributor or manufacturer no sale takes place but he merely puts manufactured commodity on the market. It is in this background and limited sense that the word 'dealer' is used in Section 20A and Section 14. Therefore, on proper construction of Section 20A it is crystal clear that if in case of a prosecution for breach of any provisions of the Prevention of Food Adulteration Act against a vendor, the court is satisfied that the manufacturer or distributor or dealer of that article of food is concerned with the commission of the offence, he can be joined notwithstanding anything contained in Section 351 of the Criminal Procedure Code. This provision is made to plug the real culprits from escaping the tentacles of law. It should be given such proper construction, so as to serve the purpose for which it is enacted and not to put such a narrow construction as would defeat the very purpose for which it is enacted.
17. If the construction as I have put on Section 20A is correct, the matter is entirely free from difficulty. Accused No. 2 who is doing business in the name and style of Saraiya Medical Store is neither shown to be manufacturer, distributor nor dealer of Kashmir Madhu. He would be a vendor. In fact accused No. 1 does not claim to have any relation with accused No. 2. Accused No. 1 is shown to be the manufacturer of this adulterated article of food, namely, Kashmir Madhu. He has been rightly joined at the trial of the accused No. 2 for an offence under Section 7 read with Section 16 of the Act. It is immaterial and irrelevant that he should have been joined in the course of the trial or whether he was joined right from inception. If the court was not satisfied about the accused No. 1 as manufacturer being concerned with the commission of the offence, certainly the court should have separated the trial or would have acquitted accused No. 1 on that ground. He is not acquitted on that ground. Accused No. 1 is acquitted on the ground that the court had no jurisdiction to proceed against him and this conclusion was reached completely ignoring Section 20A. Once it is held that he has been rightly joined in the trial of the offence against accused No. 2 who is a vendor, charge against accused No. 1 that he had manufactured for sale an adulterated article of food punishable under Section 16 is brought home to him. As the bottles purchased by accused No. 2 were offered in sealed condition and as there is no suggestion that accused No. 2 might have tampered with the contents and looking to the report of the Public Analyst, which shows that the adulteration was not on account of presence of some foreign substance but it appeared to be an article of food which was not according to the standard prescribed, accused No. 1 the manufacturer is concerned with the commission of the offence.
18. I have already pointed out above that accused No. 1 is the manufacturer of Kashmir Madhu. He carried on his business under the name and style of Comet Fruits and Chemical Industries. The name of manufacturer appears on the label pasted on bottles of Kashmir Madhu. The bottles were in sealed condition. I have pointed out above that accused No. 2 must have received these bottles from accused No. 1 because there is no distributor or dealer of the article of food. The Kashmir Madhu manufactured by accused No. 1 and received from accused No. 2 in sealed bottles is found to be an adulterated article of food. Therefore, accused No. 1 has manufactured an adulterated article of food named honey and he is shown to be concerned with the commission of the offence. I am fully satisfied about it. Therefore, charge under Section 16 is brought home to accused No. 1 also and his acquittal is clearly wrong and unsustainable and must be set aside.
Accordingly, this appeal is allowed and order acquitting accused No. 1 is set aside. Accused No. 1 is convicted for having committed an offence under Section 16 of the Prevention of Food Adulteration Act and looking to the facts and circumstances of this case and further fact that it is his first offence and also the fact that he is a petty manufacturer, he should be sentenced to suffer imprisonment for a day and to pay a fine of Rs. 2000/- in default to suffer S.I. for six months. Order accordingly.