M. Damodaran vs T.A. Abdulla Kunhi

K. G. Balakrishnan, J.—This appeal is directed against the order of acquittal of accused in S. T. 1555 of 1984 on the file of the Judicial I Class Magistrate''s Court, Kasargod. The respondents were sent up for trial of offence under sections 16 (1) (a) (i) (ii) read with Section 7(1) (ii) (v) and section 2(ia)(a)(c) and Sec. 2 (ix) (g) of the P.F.A. Act. The de facto complainant is the food inspector of Kasargod Municipality. On 17-8-1984 at about 9.30 a.m. he inspected "Thahira Medicals", Kasargod and purchased 9 packets of arrow root powder. After the completion of the necessary formalities this food item was sent for analysis and the Public Analyst issued Ext. P15 report. The report showed that the article of food consisted of only tapioca starch and therefore it was adulterated.

The first and 2nd accused are the owners of the medical shop. The first accused stated that he purchased this arrow root powder from the 3rd accused under Ext. D1 bill. The 3rd accused stated that he purchased the arrowroot powder from the 4th accused under Ext. D1 bill. The 4th accused, namely, M/s. Gupta Pharmaceuticals, produced Exts.D5 to D7 bills and contended that they had purchased these food articles from Sanjay Chemicals, Bangalore and that they were entitled to the protection u/s 19(2) of the P.F.A. Act. Before the 4th accused was made a co-accused in this case, a notice was issued to them, for which they sent a reply (Ext. D4 dated 1--10--1984) stating that they has purchased the article from Sanjay Chemicals, Bangalore. The Court below acquitted all the accused for the reason that the prosecution had not taken any steps to make Sanjay Chemicals Bangalore as a co-accused u/s 20-A of the P.F.A. Act and that all the accused were entitled to the protection u/s 19(2) of the Act.

The learned counsel for the appellant contended that the learned Magistrate has seriously erred in acquitting all the accused. However the learned counsel for the 3rd and 4th accused supported the judgment and contended that it was the duty of the prosecution to implead M/s. Sanjay Chemicals, Bangalore as a co-accused and the failure to do so has seriously prejudiced the accused and therefore the acquittal was justifiable.

Section 20-A of the P.F.A. Act 1954 is an enabling provision and the court can proceed against the manufacturer, distributor or dealer if it is satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is also concerned with the offence. Section 20-A reads as follows :

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 (3) of Section 319 of the Code of Criminal Procedure. 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him u/s 20.

A plain reading of section 20A makes it abundantly clear that it is applicable only on fulfilment of certain conditions. The court can implead any manufacturer, distributor or dealer only if the court is satisfied that such manufacturer dealer on distributors also concerned with the offence involved in the case. The mere allegation of the accused that he purchased the article from a particular manufacturer, distributor or dealer is not sufficient to enable the court to implead the alleged manufacturer, distributor or dealer as an accused. The court can implead the additional co-accused only if it is satisfied that there was some material on record to show that the vendor had in fact purchased the article from the so-called manufacturer distributor or dealer.

There should be some satisfactory evidence on the side of the accused to show that the food item purchased by the Food Inspector for analysis was covered by the warranty or bill produced by the accused.

Section 20-A is applicable only in a case where the trial is pending against any person other than a manufacturer, distributor or dealer of any article of food. If a manufacturer, distributor or dealer is already an accused in the case, and the trial is pending against any of them section 20A has no application. This would be clear from section 19(2) of the Act. u/s 19(2) of the P.F.A. Act, 1954 a vendor alone is entitled to put forward defence to the effect that he purchased the article of food under a warranty in the prescribed form. Or in other words, a dealer distributor or a manufacturer cannot put forward any defence u/s 19(2) of the Act and contend for the position that he purchased the article of food from some other licensed manufacturer, distributor or dealer under a warranty in the prescribed form. In the present case 3rd and 4th accused are admittedly dealers and they are not entitled to raise any special defence u/s 19 (2) of the Act. So also they cannot contend for the position that Sanjay Chemicals from whom they alleged to have purchased the arrow root powder should be impleaded as co-accused. Section 20A is applicable only in a case where the manufacturer, distributor or dealer is not party as accused.

In the present case the learned Magistrate has acquitted all the accused for the simple reason that the prosecution has not made any attempt, to implead the alleged original manufacturer, namely, Sanjay Chemicals. Bangalore. The stand taken by the Magistrate is clearly erroneous. It is the, court to initiate proceedings against the manufacturer, distributor or dealer, provided it is satisfied that any of them is also concerned with the offence involved in the case. Section 20A is intended to enable the court to find out the real culprit; it operates as an exception to section 20 because u/s 20 of the Act the court cannot take cognizance of an offence under the Act except with the written consent of the Central Government or State Government or a person authorised in this behalf by an order of the Central or State Government, whereas section 20A gives wide powers to courts to proceed against any manufacturer, dealer or distributor also for which a sanction u/s 20 is not necessary. However, the same is not made applicable in a case where the dealer also was arrayed as an accused. This is obviously for the reason that the dealer is an agent of the manufacturer and he is not entitled to have the protection of a warranty u/s 19 (2) of the Act. The learned Magistrate has chosen to acquit all the accused without properly understanding the provisions of law. As the learned Magistrate has taken a short-cut, the other relevant materials were not properly dealt with and it seems that the accused were not able to put forward their defence, if any, in an effective manner.

Therefore, I set aside the order of acquittal and remand the case for fresh disposal in the light of the discussion made above.