Ramesh Chandra Agarwal vs State of U.P. and Others

G.P. Mathur, J.—These two petitions have been connected by the order dated 25.5.82 and, therefore, they are being disposed of by a common order.

The Chief Food Inspector, Bijnor took a sample of palm oil on 8.10.77 from a shop of which Sukhdeo Rai Kapoor is owner. As per the report dated 24.11.77 of the Public Analyst to the U.P. Government, the sample was found to be adulterated. After obtaining sanction from the Local Health Authority, a complaint was filed against Sukhdeo Rai Kapoor for his prosecution u/s 7/16 Prevention of Food Adulteration Act. The statement of the Food Inspector was recorded u/s 244, Code of Criminal Procedure wherein he stated that he had seen three tins of palm oil in the shop and on the tins. Brand "Amrit Banaspati" was written. The vendor Sukhdeo Rai Kapoor moved an application on 30.7.81 stating that he had purchased ten sealed tins of palm oil on 27.9.77 from a firm M/s. Khairati Ram Lalta Prasad, Bijnor of which Ramesh Chandra Agarwal is the proprietor and the said oil had been manufactured by Amrit Banaspati Co. Ltd. It was also stated that the Food Inspector had taken sample from one of the aforesaid sealed tins of palm oil and it was in the same condition in which it was bought from the distributor. He had also sent a registered letter to the manufacturer Amrit Banaspati Company Ltd., Ghaziabad on 10.10.77 but they gave no reply. It was accordingly prayed that the distributor and manufacturer be summoned as accused u/s 20A of P.F. Act. Alongwith the application, the original cash memo regarding purchase of the palm oil was also annexed. The learned Magistrate by the order dated 30.7.81 summoned (1) Manager, Amrit Banaspati Company Ltd., Ghaziabad and (2) Ramesh Chandra Agarwal, Proprietor Khairati Ram Lalta Prasad for their prosecution alongwith Sukhdeo Rai Kapqor. It appears that the Manager of M/s. Amrit Banaspati Company Ltd., filed a revision against the aforesaid order being criminal revision No. 92 of 1981 and the same was allowed by Sri R. A. Singh, learned Sessions Judge, Bijnor by the judgment and order dated 24.10.81 and the order of the Magistrate was set aside. Thereafter Ramesh Chandra Agarwal moved an application before the Magistrate on 23.11.81 praying that the proceedings against him be dropped as the order dated 30.7.81 had been set aside by the learned Sessions Judge in revision which was filed by Manager, Amrit Banaspati Co. Ltd. The learned Magistrate held that this was no stage to pass an order of discharge in favour of Ramesh Chandra Agarwal and the matter could be considered at the stage of framing charge which would be done after recording statement of Chief Food Inspector. The applicant Ramesh Chandra Agarwal then moved another application on 2.2.82 for recalling the aforesaid order dated 5.12.81 of the Magistrate but the same was also rejected on 10.2.82. Thereafter he filed revision before the learned Sessions Judge but the same was dismissed summarily on 19.3.82. The present Criminal Misc. Application No. 2239 of 1982 u/s 482, Code of Criminal Procedure has been filed for quashing the first order of the Magistrate dated 30.7.81 by which Ramesh Chandra Agarwal was summoned and the subsequent orders dated 5.12.81 and 10.2.82. Criminal Misc. Application No. 3162 of 1982 has been filed by Sukhdeo Rai Kapoor for quashing the proceedings of Criminal Misc. Case No. 1034 of 1981 which is pending against him.

Sri R. Pandey, learned Counsel for Ramesh Chandra Agarwal, has submitted that by a common order dated 30.7.81 the learned Magistrate had summoned Manager, Amrit Banaspati Pvt. Ltd., Ghaziabad and Ramesh Chandra Agarwal, Proprietor of M/s. Khairati Ram Lalta Prasad u/s 20A of Prevention of Food Adulteration Act and the said order had been set aside by the learned Sessions Judge on 24.10.81 in criminal revision No. 92 of 1981 and, therefore, the prosecution of the applicant is not only illegal but also an abuse of the process of the Court and the same was liable to be quashed. As stated earlier, the aforesaid two persons had been summoned u/s 20A of the Act after an application to that effect had been moved by vendor Sukhdeo Rai Kapoor on 30.7.81. The vendor had clearly mentioned in his application that he had purchased ten sealed tins of Basri Brand palm oil manufactured by Amrit Banaspati Company Pvt. Ltd. from the firm M/s. Khairati Ram Lalta Prasad, Bijnor of which Ramesh Chandra Agarwal was the proprietor and that the Food Inspector had taken the sample from his shop on 8.10.77 after opening one of those sealed tins. He had further stated that the sealed tin was properly stored by him and was in the same state in which it was purchased. Alongwith the application, he also annexed the cash memo dated 27.9.77 which had been issued by the distributor. The learned Magistrate was prima Jacie satisfied from the statement of the Food Inspector and other evidence on record of the sample had been taken from a sealed tin and that the cash memo and the receipt dated 27.9.77 showed that firm M/s. Khairati Ram Lalta Prasad had sold Basri Brand palm oil to the vendor Sukhdeo Rai Kapoor. The copy of the letters sent by vendor to M/s. Amrit Banaspati Co. Pvt. Ltd., and to Ramesh Chandra Agarwal were also placed before the learned Magistrate. After considering the aforesaid material, the learned Magistrate passed the order dated 30.7.81 for summoning the manufacturer and the distributor. Section 19(2) of P.F. Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated article of food if he proves that he purchased the same 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. Section 14 provides that no manufacturer or dealer of any article of food shall sell such article to any vendor unless he gives a written warranty in the prescribed form. The proviso to this Section lays down that a bill or cash memo in respect of sale of any article of food shall be deemed to be a warranty. Therefore, if in the present case vendor Sukhdeo Rai Kapoor is able to establish that he purchased palm oil from a distributor (Ramesh Chandra Agarwal) and that the same, while in his possession was properly stored and that he sold in the same state as he purchased it, he shall not be deemed to have committed any offence. The application moved by vendor clearly shows that he has taken such a defence. In these circumstances, it was absolutely necessary to join the manufacturer and distributor also in the same trial. Section 20A, of the Act envisages joint trial of the vendor and the manufacturer or distributor or dealer of any article of food, as the case may be. Under this Section, it is imperative on the part of the Court to implead the manufacturer, distributor or dealer of any article of food whenever the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence committed with which the vendor is charged. The satisfaction referred to in this Section is to be reached by the Court on the basis of the material on record and no other rule or any guideline can be laid down regarding the data and quantum of material necessary or sufficient to reach this satisfaction. As noticed earlier, the learned Magistrate had before him the statement of Food Inspector and also cash memo which was filed by the vendor showing purchase of ten tins of Basri Brand palm oil from the distributor Ramesh Chandra Agarwal. In these circumstances, the learned Magistrate was fully justified in summoning the manufacturer and distributor of the palm oil, a sample of which was taken from the shop of Sukhdeo Rai Kapoor. The prosecution of the distributor, therefore, cannot be said to be illegal or unwarranted in any manner whatsoever.

Shri Pandey has next submitted that the learned Magistrate had passed a common order on 30.7.81 by which Manager, Amrit Banaspati and the distributor Ramesh Chandra Agarwal had been summoned but the said order had been set aside by the learned Sessions Judge on 24.10.81 and, therefore, the prosecution of the applicant is liable to be quashed. I am unable to accept the submissions made by the learned Counsel. Copy of the judgment of the learned Sessions Judge had been filed as Annexure 4 to the petition and it shows that criminal revision No. 92 of 1981 had been filed by Manager (Quality Control), M/s. Amrit Banaspati Co. Ltd., Ghaziabad. The operative portion of the judgment shows that revision was allowed and the impugned order summoning the revisionist was set aside. Admittedly, no revision was filed by Ramesh Chandra Agarwal nor he was party to the same. Therefore, he cannot get any benefit of the order passed by the learned Sessions Judge as the same is in favour of the manufacturer. That apart, it is difficult to follow the reasoning given by the learned Sessions Judge in his judgment and order dated 24.10.81. The learned Sessions Judge allowed the revision after recording the following two findings:

In a case where a dealer is being tried, then u/s 20A manufacturer cannot be arrayed as an accused and no cognizance can be taken against the manufacturer or the distributor;

The evidence adduced before the learned C.J.M. cannot be considered to be a satisfactory evidence and it had not been duly proved that it concerned with the sample taken from the vendor.

The first finding of the learned Sessions Judge that where a dealer is being tried, manufacturer or distributor cannot be arrayed as an accused is patently against the provisions of the Act. The view taken by the learned Sessions Judge is wholly against the scheme of the Act and the law declared on this point by a series of Judicial pronouncements. The second finding of the learned Sessions Judge also cannot be accepted as tills was not the stage to Judge the sufficiency of the evidence adduced before him. From the evidence adduced before the learned Magistrate, he was satisfied that there was sufficient ground for summoning the manufacturer. It cannot be said that it was a case of no evidence. The sealed tins clearly mentioned In bold letters that the same had been manufactured by Amrit Banaspati Co. Ltd. Ghaziabad. If the satisfaction of the Magistrate was based upon some evidence, the sufficiency thereof could not be examined at the stage of summoning. The manufacturer was not being convicted on the basis of the evidence on record but was merely summoned to face trial. After the parties had got opportunity to adduce evidence in support of their respective cases, the sufficiency of the evidence to record a finding of guilt or otherwise could be examined. In my opinion, the judgment of the learned Sessions Judge is wholly illegal and contrary to law and cannot stand Judicial scrutiny even for a moment. Though as mentioned earlier, the applicant Ramesh Chandra Agarwal was not party to the criminal revision and, therefore, he cannot get any benefit of the order passed therein as a result of the revision being allowed but as the judgment is wholly against the settled principles of law, its benefit even otherwise cannot be given to the applicant. It will be grave miscarriage of Justice to quash the proceedings against the applicant merely on the basis of the aforesaid judgment of the learned Sessions Judge.

Shri Pandey has also referred to a decision of this Court in Hindustan liver Ltd. v. State 1981 ACC 265. The authority cited is clearly distinguishable on facts. It was found as a fact that there was no evidence to show that the sample was taken from a tin which was received by the dealer in its sealed state from Hindustan Liver Ltd., or through distributor and on these findings, the proceedings against the manufacturers were quashed. Such is not the case here. The vendor has produced the cash memo or warranty which prima Jacie showed that he had purchased palm oil from the applicant Ramesh Chandra Agarwal.

In the Criminal Misc. Application No. 3162 of 1982 filed by Sukhdeo Ral Kapoor, the plea taken by him is same and he also seeks to take benefit of the judgment given by the learned Sessions Judge In favour of the manufacturer. The operative portion of the judgment in the revision merely shows that the order summoning the manufacturer alone had been set aside and nothing was said in favour of the vendor. For the reasons already mentioned, the vendor is also not entitled to seek quashing of the proceedings against him on the strength of the aforesaid judgment. He will have to lead evidence in order to sustain the plea taken by him on the basis of Section 19(2) of the Prevention of Food Adulteration Act and this can only be done before trial court. The defence of the vendor cannot be examined in proceedings u/s 482. Code of Criminal Procedure.

For the reasons mentioned above, both the petitions lack merit and are hereby dismissed. Stay orders are vacated.