D. Mitra vs The State of Bihar and Another

C.N. Tiwary, J.—This is an application u/s 482 of the Criminal P. C. for quashing the prosecution of the petitioner, D. Mitra, Manager of M/s Hindustan Lever Limited, a Company incorporated under the Indian Companies Act and having its Registered Office at Hindustan Lever House at Bombay in complaint case No. C (III) 157/73 pending in the Court of Sub-Divisional Judicial Magistrate, Ranchi.

The relevant facts are these: On 15-9-1973, G. N. Prasad, Food Inspector of Ranchi Municipality visited the shop of Bharat Trading Agency, Ranchi owned by Dayalal Chouhan. Having served intimation on Dayalal Chouhan that he would purchase Banaspati Dalda from him, the Food Inspector purchased Banaspati Dalda from him and after going through all the formalities he sent the sample of Banaspati Dalda to the Public Analyst. He received report of the Public Analyst which showed that the Banaspati Dalda was adulterated as it did not conform to the standard prescribed under the Rules. After obtaining necessary sanction the Food Inspector filed a complaint on 14-12-1973 for the prosecution of Dayalal Chouhan, Proprietor of Bharat Trading Agency for an offence punishable u/s 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter to be referred as "the Act"). Accused Dayalal Chouhan was put on trial. The Food Inspector, G, N. Prasad, was examined in that case as P. W.I on 18-9-1975. P.W. 2 was examined on 27-10-1975. P. W. 3 was tendered and a formal witness (P. W. 4) was examined on 13-11-1975. On 25-11-1975 the learned Magistrate, in whose Court the case is pending having heard the lawyers of the parties on the question of framing charge passed the following order:

The accused is a dealer in ''Dalda'' manufactured by Hindustan Lever Ltd. The sample for analysis was taken from sealed tin which was delivered to the accused for sale. There is no menses against the accused. He is a wholesale dealer and there is no evidence that any adulteration was made by him. He is selling "Dalda" tins as obtained from the Company. For the ends of justice the manufacturer of ''Dalda'' is essential to be impleaded as an accused in this case along with the dealer u/s 20A of Prevention of Food Adulteration Act, 1954. I am satisfied on the evidence adduced before me that the Manager, dustan Leer Ltd, is also concerned with this offence.

Let him be summoned as s accused in this case fixing 15-12-1975 for his appearance so that he may be jointly tried with the dealer who is accused in this case.

It is said that on or about 5-4-1976 the petitioner came to know that he has been impleaded, as an accused in this case. Mr. R. Jethmalani, learned Counsel for the petitioner, has urged that Section 20A of the Act has no application to this case which was instituted against a dealer and that the manufacturer cannot be proceeded against as accused when: the prosecution was intimacy launched against a dealer. According to the teamed Government Pleader a Manufacturer can also be made co-accused u/s 20A of the Act at any time during the trial even, in a case instituted originally against a dealer.

Section 20A of the Act is as under:

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 food1, the Court is satisfied, ��i the evidence adduced before it, that such manufacturer, distributor car dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in Sub-section (3) of Section 319 of the Cr.PC 1973 (2 of 1974), or in, Section 20, proceed against him as though, a prosecution had been, instituted against him under S, 20.

On a plain reading of S, 20A it is manifest that if the Court is trying any person (i.e. vendor) other than the manufacturer, distributor or dealer under the Act and if in course of the trial it is satisfied on evidence adduced before it that the manufacturer or distributor or dealer of the adulterated food is concerned with the commission of the offence, it may proceed against such manufacturer, distributor or dealer as though a prosecution had been instituted against him u/s 20 of the Act. The expression Vendor'' is used1 in the Act to connote some one other thara the manw facturer, distributor, or dealer. This is evident on reading Sections 14 and 19 together. A dealer is something more than a vendor or seller of paarticulair article of food. Thus it i evident the in. a case instituted against a person who is a vendor of adulterated food, the manufacturer, or distributor or dealer may be made accused u/s 20A. If the case jig initially instituted against a dealer of adulterated food, then the manufacturer, or distributor cannot be made accused u/s 20A. In such a case the manufacturer or distributor may be proceeded lagainst u/s 20.

As pointed out above the instant case was initially instituted against a dealer after obtaining necessary sanction as required by law and, therefore, in view of what has been stated above the manufacturer cannot be added as co-accused u/s 20A at a later stage. This view finds support from the decision in the case of I. M. Nayak v. Kantilal Sambalal Sah 1973 FAC 148 In that case D. A. Desai, J. (as he then was) observed in para 15 of his judgment :

...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 other than a manufacturer or distributor or dealer.

Learned Government Pleader has placed reliance on the case of Bhagwan Das Jagdish Chander Vs. Delhi Administration, in support of his contention. The point urged by Mr. Jethmalani in the instant case did not arise for consideration in the case of M/s Bhagwan Das Jagdish Chander. In that case there was a joint trial of the vendor Lakshmi Harayan with the warrantor M/s. Bhagwan Das Jagdish Chander, The question relating to S, 20A that arose in the case was whether after the acquittal of the vendor and the warrantor the manufacturer could be impleaded. Their Lordships have observed that Section 20A contemplates action which can only be taken during the course .of the trial. Thus, the decision relied upon by the learned Government Pleader has no application to the facts of this case.

Reliance has also been placed by learned Government Pleader an. the case of Banarsi Das and Another Vs. The Municipal Council and Another, In that case only three contentions were raised on behalf of the appellants. In the first place it was contended that Section 20A was itself ultra vires as being violative of Article 14 of the Constitution of India. Secondly it was contended that the procedure prescribed by Section 20A deprived the petitioners, who were to be summoned u/s 20A of the special protection provided to the other accused by way of the fact that the complaint against them could be filed by a person authorised by a competent authority. Lastly it was argued that as the defence of the petitioners and that of the accused, Abdul Samad Gujri, were diametrically opposite, the petitioners would be seriously prejudiced if they were jointly tried with the other accused at whose instance they were sought to be summoned. The question whether a manufacturer can be adduced as a co-accused u/s 20A at a subsequent stage is a case instituted initially against the dealer, which has arisen in this case and which arose in the case of I. M. Nayak v. Kantilal Sambalal Sah 1973 FAC 148 did not arise in Banarsi Das v. Municipal Council, Srinagar (supra). Therefore, this decision is also of no avail to the learned Government Pleader.

In view of the aforesaid discussion the application is allowed and the prosecution of the petitioner D. Mitra, in complaint Case No. C (III) 1973 pending in the Court of Sub-Divisional Judicial Magistrate, Ranchi is quashed.