Full Judgment Text
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PETITIONER:
BHAGWAN DASS JAGDISH CHANDER
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT25/03/1975
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
ALAGIRISWAMI, A.
UNTWALIA, N.L.
CITATION:
1975 AIR 1309 1975 SCR 30
1975 SCC (1) 866
CITATOR INFO :
F 1975 SC2178 (8)
RF 1976 SC 621 (34)
APL 1983 SC 545 (7)
D 1984 SC1492 (8)
ACT:
Prevention of Food Adulteration Act, 1954-Ss. 7, 16 and
19(2)-Joint trial of vendor and distributor of food article-
If legal-S. 20A-Scope of.
HEADNOTE:
The appellant, a firm of ghee merchants, through its partner
as A2 was charged with having sold ghee to Al (the vendor of
ghee). A sample of that ghee purchased by the Food
Inspector was found (on analysis) to be adulterated. The
two accused were prosecuted jointly under ss. 7 and 16 of
the Prevention of Food Adulteration Act, 1954.
At the trial, the vendor prayed for the discharge or
acquittal of the warrantor so that he might examine the
warrantor as his defence witness to prove his own purchase
of the article under a warranty. The trying magistrate
acquitted the partner of the appellant. The vendor was also
acquitted on the ground that he was protected by a warranty
covered by s. 19(2) of the Act.
On appeal, the High Court, while maintaining acquittal of A-
1, set aside the acquittal of the appellant (A-2). On the
question whether the charge should be quashed because two
accused were set tip for trial jointly.
HELD : The High Court was right in holding that the joint
trial of the appellant with the vendor was not illegal.
[42A]
(1)(a) In a suitable case, a vendor, a distributor, and a
manufacturer could be tried together provided the
allegations made before the Court show that there were
connecting links between their activities so as to
constitute the same transaction. The connecting links, in a
case could be provided by (i) the fact that a sale at an
anterior stage could be viewed as the cause of the
subsequent sale; (ii) the allegation that each of the
accused parted with the article of food when it was in an
adulterated state and (iii) the common object of the
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manufacturer, the distributor and the vendor was that the
article should reach the consumer to be used as food. The
third and last link is decisive and must tilt the balance in
favour of legality of a joint trial of the parties
concerned. [41-C-D]
(b)A mens rea as a particular state of mind which could be
described as guilty or wrongful was not needed, and,
therefore, could not provide the connecting link between the
co-accused in a trial for such an offence in order to
constitute the same transaction. [39D]
Sarjoo Prasad v. The State of Uttar Pradesh, A.I.R. 1961
S.C. 631, referred
(c)Where a joinder of several accused persons concerned
dealing in different ways with the same adulterated article
of food at different stages is likely to jeopardise a fair
trial, a separate trial ought to be ordered. It is not
proper to acquire or discharge an accused person on this
ground alone. The order of separate trial in a case where
prejudice to an accused from a joint trial is apprehended is
enough. A joint trial of such accused persons is not ab
initio illegal. [40A]
V.N. Kamdar & Anr. v. Municipal Corporation of Delhi
[19741 IS.C.R. 157 @-161 and Kadiri Kunhammad v. The State
of Madras. A.I.R. 1960, S.C. 661 @663, followed.
31
(2)Neither S. 7 nor S. 14 of the Act bars trial of several
offences by the same accused person, be he a manufacturer, a
distributor or a last seller referred to as "the vendor" in
S. 14 of the Act. The definition of "sale" in sub-s. (xiii)
of the Act, is wide enough to include every kind of seller.
Every seller can be prosecuted for an offence created by s.
7 of the Act. The mere fact that, for purposes of S. 14,
the person who could be thelast seller is described as
"the vendor", could not affect a liability for an offence
under s. 7 of the Act by a sale of an article of food which
is found to be adulterated. A sale of an article of food by
a " manufacturer, distributor or dealer" is a distinct and
separable offence. Section 14 was not meant to carve out an
exemption in favour of a distributor or a manufacturer who
sells articles of food, found to be adulterated,
irrespective of the question whether any warranty was given
for them. [36C-F]
The spacial provisions contained in Ss.19(2) and 20A do not
take away or derogate from the effect of the ordinary
provisions of the law which enable separate as well as joint
trials of accused persons in accordance with the provisions
of the old Ss. 233 to 239, Cr. P. C. On the other hand,
there is no logically sound reason why, if a distributor or
a manufacturer can be subsequently impleaded under s. 20A of
the Act, he cannot be joined as a co-accused initially in a
joint trial if the allegations made justify such a
course.[37B]
(b)The special provisions of S. 20A are only enabling and
do not give rise toa mandatory duty. They do not bar
either a separate or a joint trial of an accused person if
other conditions are satisfied. Similarly S. 239(d), Cr.
P.C. is only an enabling section. [41-B]
In the instant case although the charge stated that the ghee
sold by the vendor was found to be adulterated, it is not
stated that it was in that very state when the appellant
sold it to the vendor. It is left to be inferred from the
charge that the appellant also sold the ghee in an
adulterated state. It is true that defects in the charge
would not invalidate a trial. Even so, continuation of such
an old prosecution is likely to handicap the appellant in
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his defence. Assuming that the charge implied an allegation
that ghee was adulterated when the appellant sold it to the
vendor an enquiry in 1975 into the actual state of the ghee
sold by the’ distributor in 1967 would be obviously
difficult. It would impose undue hardship on the
distributor to prove at this distance of time, the actual
state of the small quantity of ghee analysed. [41G-H]
Alagiriswami, J. (concurring in the final result)
The High Court was not correct in saying that the action of
both the accused formed part of the same transaction and
there was unity of purpose of the manufacturer, the
distributor and the vendor furnished by the purpose of all
of them to sell, and, therefore. it was the same transaction
and ill of them could be tried together. [43E]
(1)If the common purpose of all of them was to sell ghee,
joint trial of all of them would not be valid; but, if it
was to sell adulterated ghee it would be valid. If it is
alleged that at every one of the stages ghee was adulterated
then it would be the same transaction and they could all be
jointly tried. In the absence of an allegation that the
ghee distributed by the appellant to the vendor was
adulterated both of them could not be tried together. [43G]
(2)At the stage of considering the validity of the charge,
it is the allegation that is material ; at the stage of
considering the guilt of the parties, it is proof that is
material. [43H]
In the instant case, although the charge states that the
ghee purchased from the vendor was found to be adulterated,
there was no allegation that the ghee sold by the appellant
to the vendor was adulterated. While the common object was
to sell the article of food sold, it is not said that it was
to sell adulterated article of food. [42E]
32
(3)It is now well settled that for establishing an offence
under the Act it is not necessary to establish mens rea
i.e., criminal intention either on the part of the
manufacturer or distributor or vendor. Even knowledge on
the part of all of them that the food was adulterated is not
necessary. Ignorance on the part of any one of them that
the food was adulterated would not absolve them of
liability. [42H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 59
and 60 of 1971.
From the judgment and order dated the 28th October, 1970 of
the Delhi High Court in Criminal Appeals Nos. 8 and 9 of
1969.
E. C. Agarwala, for the appellant (in both the appeals)
B. P. Maheshwari, for respondent no, 2.
The Judgment of M. H. Beg and N. L. Untwalia, JJ. was
delivered by Beg, J. A. Alagiriswami, J. gave a separate
Opinion.
BEG, J.-These two criminal appeals, after certification of
the cases as fit for decision by this Court, under Article
134(1) (c) of the Constitution, arise out of the prosecution
of M/s. Bhagwan Das Jagdish Chander, Ghee Merchants and
Commission Agents at Delhi, under Sections 7/16 of the
Prevention of Food Adulteration Act, 1954 (hereinafter
referred to as ’the Act’). The appellant was prosecuted
jointly with Laxmi Narain, the vendor of 450 gms. of ghee to
a Food Inspector, on 22-8-1967. On analysis, the sample was
found to be adulterated. Laxmi Narain, a partner of M/s.
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Laxmi Sweets, Delhi, in defence, successfully relied upon
Section 19(2) of the Act and was acquitted. Section 19,
which reads as follows, may be set out here in toto :
"19(1) 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.
(2)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-
(a)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
(b) 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.
33
(3)Any person by whom a warranty as is
referred to in Section 14 is alleged to have
been given shall be entitled to appear at the
hearing and give evidence".
Section 14 of the Act, to which reference was
made in Section 19(3), says:
"S. 14. 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.
Explanation.-In this section, in sub-section
(2) of Section 19 and in Section 20A, the
expression "distributor" shall include a
commission agent".
In the course of the trial, Laxmi Narain filed an
application praying that the warrantor may be discharged or
acquitted so that Laxmi Narain may examine the warrantor as
his defence witness to prove his own purchase of the
offending article under a warranty. It may be mentioned
that, as the complaint describes the warrantor accused as
"M/s. Bhagwan Das Jagdish Chander through an authorised
person", appearance was put in by Jagdish Chander, a
partner, as the accused person responsible on behalf of the
firm.
The trying Magistrate allowed the application of Laxmi
Narain and acquitted Jagdish Chander on the ground that
Laxmi Narain would be deprived of a valuable defence unless
this was done and relied upon V. N. Chokra v. The State(1)
in support of this action. Of course, an accused person has
a right to appear in defence under Section 342A of the Code
of Criminal Procedure; and, Laxmi Narain, taking advantage
of this provision, did depose in his own defence. But, it
seems that it was urged on behalf of Laxmi Narain that
Jagdish Chander could not be compelled to appear as a
defence witness until he had been discharged or acquitted.
The Magistrate accepted this ground as good enough for the
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acquittal of Jagdish Chander. After, the evidence of
Jagdish Chander and Laxmi Narain, as defence witnesses, the
trying Magistrate acquitted Laxmi Narain also on the ground
that Laxmi Narain was protected by a warranty covered by
Section 19(2) of the Act. Thus, both the accused persons
were acquitted.
After their acquittal, the Magistrate impleaded the
manufacturers, M/s. Gauri Shanker Prem Narain, under
section 20A of the Act. ’This provision reads as follows :
"20A. 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
(1) AIR 1966 Punjab 421.
34
with that offence, then, the Court may,
notwithstanding anything contained in sub-
section (1) of Section 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 section
20".
Although, we are not concerned in the appeals before us with
the prosecution of the manufacturer, M/s. Gauri Shanker
Prem Narain, yet, we find that one of the questions framed
for consideration and decided by the Delhi High Court
relates to the meaning and scope of Section 20A of the Act.
We may mention that a statement has been made at the Bar
that the manufacturer has also been acquitted. We do not
know whether this acquittal was on the ground that the
manufacturer cannot be impleaded under section 20A of the
Act after the trial is concluded by the acquittal of the two
accused. It is clear that Section 20A contemplates action
which can only be taken during the course of the trial. A
separate trial would require a "written consent of the
Central Government or the State Government or a local
authority or of a person authorised in this behalf by
general or special order by the Central Government or the
State Government or a local authority", unless it is a
complaint by a purchaser, other than a Food Inspector, who
could rely upon Section 12 of the Act. But, an addition of
an accused under section 20A of the Act constitutes an
expressly laid down exception to the requirement of a
sanction under section 20(1) of the Act.
In the case before us, the prosecutor, the Municipal
Corporation of Delhi, appealed against the acquittals of
Laxmi Narain and Jagdish Chander. In the Delhi High Court,
two questions, arising in the case before us and in other
similar cases, were framed and referred for decision by a
Full Bench as follows :
"(i) Whether a joint trial of the vendor, the
distributor and the manufacturerer for
offences under the Prevention of Food
Adulteration Act, 1954 is illegal ? and
(ii) What is the scope of Section 20A of the
said Act ?"
On the 1st question. the Full Bench held : that;- the
general procedure for joint trials, found in Sections 234 to
239 of the Criminal Procedure Code, applies to prosecutions
under the Act which contains no other or special procedure
for joinder of charges or of accused persons in the same
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trial; that, the joint trial of the vendor Laxmi Narain with
the warrantor Jagdish Chander was permissible as the actions
of both these accused form parts of the same transaction, as
explained by this Court in the State of Andhra Pradesh v.
Cheemalapati Ganeswara Rao & Anr.(1); that, this view was
reinforce by the consideration that mens rea was not an
essential element for offences under the Act, and the High
Court relied on the pronouncement of this Court in Andhra
Pradesh Grain and Seeds Merchants Association v. Union of
India(2) for this proposition; that, proof
(1) [1964] 3 SCR 297.
(2) [1970] (2) S.C.C. 71.
35
of a guilty mind is not necessary in statutes creating
absolute liability for offences against public health and
public welfare; that, there was a "unity of purpose" between
the manufacturer and distributor and vendor of the
adulterated article of food sold furnished by the purpose of
all of them to sell; that, an indication of a "unity of
purpose", which is less stringent than either a "common
object" or a "common intention", was sufficient to establish
the sameness of a transaction for the purposes of Section
239 of the Criminal Procedure Code; that, although the
joinder of the vendor or manufacturer in a single trial was
legally valid under section 239 of the Criminal Procedure
Code, it did not appear to be incumbent upon the Court to
hold such a joint trial where such joinder may jeopardise
the interests of justice; that, Section 19 of the Act, as it
stands, does not require that the warrantor should be
separately prosecuted only after the vendor had successfully
established that he could rely upon a warranty covered by
Section 19(2) of the Act; that, as both the vendor and his
warrantor could get an adequate opportunity to prove their
cases in a trial for sale of an adulterated article under
the Act, no right of an accused person, either in law or
justice, was jeopardized by such a joint trial; that, in any
event, a person accused of such an offence under the Act
"can always insist that a co-accused should be discharged or
acquitted on the ground that he wants to examine him as a
witness"; that, Section 19(3) of the Act confers a right
upon the vendor and not upon the warrantor; that, no
interests of an accused person were prejudicially affected
in the case before us by a joint trial of the vendor and the
distributor.
As regards Section 20A of the Act, the Full Bench held:
that, this provision, which is an Exception to Section 351
(1) of the Criminal Procedure Code, "can be invoked after
the trial of the vendor has commenced and before it has
concluded and not after that"; and that, Section 20A of the
Act is not controlled by Section 239 of the Criminal
Procedure Code but is a self contained provision so that
"the person concerned in the offence", mentioned therein, is
not to be equated with "a person who has committed the same
offence", mentioned in Section 239 of the Criminal Procedure
Code.
The High Court, while maintaining the acquittal of Laxmi
Narain, set aside the acquittal of the appellant M/s.
Bhagwan Das Jagdish Chander. It is not clear to us why two
appeals to this Court became necessary as the appellant does
not question the correctness of the acquittal of Laxmi
Narain. Separate Counsel have, however, appeared and argued
the case for the appellant firm and its partner Jagdish
Chander. We propose to deal with the case as one only and
assume that both the firm and its partner Jagdish Chander
question the validity of the trial on a complaint where the
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only allegation against the appellant firm, arraigned as an
accused through its partner, was that it was a distributor
of the adulterated ghee sold. The charge framed against the
appellant was
"That, on or about the 22nd day of Aug. 1967
at 12 noon a sample of ghee was purchased by
Sh. V. P. Anand F.I. from accused No. 1
Lakshmi Narain and the said ghee was sold by
36
you to accused No. 1 Laxmi Narain on 21-8-67
and the said sample of ghee on analysis was
found to be adulterated and hereby committed
an offence punishable under sections 7/16 of
the Prevention of Food Adulteration Act of
1954 and within my cognizance".
The material question before us, shorn of subtlety and
bereft of verbiage, could be said to, be: Should this charge
be quashed, after holding that the prosecution of the
appellant, which was duly sanctioned by the competent
authority, was invalid merely because, initially, the
appellant was sent up for trial jointly with Laxmi Narain,
or, alternatively, should we quash it on any other ground?
We are not impressed by the argument that a distributor
could only be prosecuted for selling without giving a
warranty to a vendor which is a separate offence under
section 14 of the Act. It is clear from Section 14 itself
that a manufacturer as well as a distributor can sell. The
definition of "Sale", given in sub s. (xiii) of the Act, is
wide enough to include every kind of seller. Every seller
can be prosecuted of an offence created by Section 7 of the
Act which prohibits a sale as well as distribution of an
adulterated article of food. The mere fact that, for the
purposes of Section 14, the person who could be the last
seller, in the sense that he sells to the actual consumer,
is described as "the vendor", could not affect a liability
for an offence under section 7 of the Act by a sale of an
article of food which is found to be adulterated. A sale of
an article of food by a "manufacturer, distributor, or
dealer" is a distinct and separable offence. Section 14 was
not meant to carve out an exemption in favour of a
distributor or a manufacturer who sells articles of food,
found to be adulterated, irrespective of the question
whether any warranty was given for them.It is true that the
manufacture of an adulterated article of food forsale is
also an offence under section 7 of the Act. But, neither
Section7 nor Section 14 of the Act bars trial of several
offences by the same accused person, be he a manufacturer, a
distributor, or a last seller, referred to as "the vendor"
in Section 14 of the Act.
We are also unable to accept as correct a line of reasoning
found in V. N. Chokra v. The State (supra) and Food
Inspector, Palghat Municipality v. Setharam Rice & Oil
Mills(1), and in P. B. Kurup v. Food Inspector, Malappuram
Panchayat(2), that, in every case under the Act, there has
to be initially a prosecution of a particular seller only,
but those who may have passed on or sold the adulterated
article of food to the vendor, who is being prosecuted,
could only be brought in subsequently after a warranty set
up under section 19(2) has been pleaded and shown to be
substantiated. Support was sought for such a view by
referring to the special provisions of Section 20A and
Section 19(2) and Section 20 of the Act. A reason for Sec.
20A seems to be that the prosecution of a person impleaded
as an accused under Section 20A in the course of a trial
does not require a separate sanction Section 20A itself lays
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down that, where the Court trying the offence is itself
satisfied that a "manufacturer, distributor, or dealer is
also
(1)1974 F. A.C. V. 534(Crl. Appeal Nos. 222, 223, 225 to
227/73 etc. etc. decided on 3-7-74).
(2) 1969 Kerala Law Times p. 845.
37
concerned with an offence", for which an accused is being
tried, the necessary sanction to prosecute will be deemed to
have been given. Another reason seems to be that such a
power enables speedy trial of the really guilty parties. We
are in agreement with the view of the Delhi High Court, that
these special provisions do not take away or derogate from
the effect of the ordinary provisions of the law which
enable separate as well as joint trials of accused persons
in accordance with the provisions of the old Sections 233 to
239 of Criminal Procedure Code. On the other hand, there
seems no logically sound reason why, if a distributor or a
manufacturer can be subsequently impleaded, under Section
20A of the Act, he cannot be joined as a co-accused
initially in a joint trial if the allegations made justify
such a course.
This brings us to the most debated point in the case: Was
the sale of ghee on 22-8-67 by the last seller or vendor,
Laxmi Narain, so connected with the sale by the accused
appellant Jagdish Chander to Laxmi Narain on 21-8-67 that,
if the ghee was found adulterated in the hands of Laxmi
Narain, the appellant Jagdish Chander could be prosecuted
jointly with Laxmi Narain as the two sales were part of the
"same transaction" within the meaning of Section 239(d) of
Criminal Procedure Code of 1898 corresponding to Section 223
of the Code of 1973?
We do not propose to attempt, in this case, the task of
defining exhaustively what constitutes the same transaction
within the meaning of Section 239 of Criminal Procedure Code
of 1898 corresponding to Section 223 of the Criminal
Procedure Code of 1973. It is practically impossible as
well as undesirable to attempt such a definition of a
concept which has to be necessarily elastic. Moreover, this
Court has, in the State of Andhra Pradesh v. Cheemalpati
Ganeshwara Rao and Anr. (supra), already expressed its views
(at page 321.), which we respectfully quote and follow, on
this question :
"What is meant by ’same transaction’ is not
defined anywhere in the Code. Indeed, it
would always be difficult to define precisely
what the expression means. Whether a
transaction can be regarded as the same would
necessarily depend upon the particular facts
of each case and it seems to us to be a
difficult task to undertake a definition of
that which the Legislature has deliberately
left undefined. We have not come across a
single decision of any Court which has
embarked upon the difficult task of defining
the expression. But, it is generally thought
that where there is proximity of time or place
or unity of purpose and design or continuity
of action in respect of a series of acts, it
may be possible to infer that they form part
of the same transaction. It is, however, not
necessary that every one of these elements
should co-exist for a transaction to be
regarded as the same. But if several acts
committed by a person show a unity of purpose
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or design that would be a strong circumstance
to indicate that those acts form part of the
same transaction".
Learned Counsel for the appellant, however. relies on the
immediately following observations (at page 322)
38
The connection between a series of acts seems
to us to be an essential ingredient for those
acts to constitute the same transaction and,
therefore, the mere absence of the words ’so
connected together as to form in cl. (a), (c)
and (d) of S. 239 would make little
difference. Now, a transaction may consist of
an isolated act or may consist of a series of
acts. The series of acts which constitute a
transaction must of necessity be connected
with one another and if some of them stand out
independently, they would not form part of the
same transaction but would constitute a
different transaction or transactions.
Therefore, even if the expression ’same
transaction’ alone had been used in s. 235(1)
it would have meant a transaction consisting
either of a single act or of a series
of connected acts. The expression ’same
transaction’ occurring in cls. (a), (c) and
(d) of s. 239 as well as that occurring in s.
235(1) ought to be given the meaning according
to the normal rule of construction of
statutes".
It is contended that it would be dangerous to leave the
"unity of purpose and design", which may constitute a
transaction, so vague as to bring in the manufacturer and
every conceivable distributor as accused persons whenever
any adulterated food, manufactured and scaled by one party
and distributed by another, is finally sold by a vendor in
the market. The learned Counsel for the appellant contended
that we must, therefore, restrict the concept of a
"transaction", in a prosecution for sale of an adulterated
article of food, to an alleged criminal participation in the
adulteration of the actual article of food sold. It was
urged that some vague and general connection or concern of
all the co-accused as manufacturers or distributors of the
article sold will not do. It had, according to the
contention on behalf of the appellant, to be specifically
alleged that the accused was concerned with the adulteration
or sale of the particular article of food sold. The
argument of the learned Counsel for the appellant seems to
us to go so far as to suggest that an allegation was
indispensable of a participation in some kind of conspiracy
to sell the actual adulterated article of food which was
sold in order to enable a trial in which the seller, the
distributor, and, the manufacturer could be jointly tried
for offences which could be looked upon as parts of a single
transaction. To accept such an argument would be to import
into such a case the need to establish a conspiracy between
the accused manufacturer or distributor, as the case may be,
and the actual vendor or the last seller to the consumer.
We think that such a result would be obviously incorrect.
It was pointed out by this Court, in Sarjoo Prasad v. The
State of Uttar Pradesh(1), that mens rea, in the sense of a
guilty knowledge of adulteration of the food sold, is not
necessary to prove for an offence under Section 7 of the
Act. Indeed, Section 19(1) specifically rules out such a
defence although S. 19(2) makes it available in the
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particular case of the accused who has taken the precaution
of protecting himself from what seems otherwise to be an
absolute liability without proof of guilty knowledge. Even
if we were to widen
(2) A.1-R 1974 SC 2154.
39
the concept of "mens rea" here to embrace carelessness or
indifference as the required states of mind in the
manufacture or distribution or sale of an adulterated
article of food, as an ingredient of a, legally punishable
offence, the law obviously and expressly does not require
parties to, an offence under the Act to have a particular
guilty knowledge about the particular item of food found to
be adulterated. We cannot introduce such a requirement into
a case simply because several accused persons are being
jointly tried. The law does require proof, for a successful
defence, of a degree of care and caution revealed by the
actions of the seller, distributor, or manufacturer, which
will be enough to procure an exemption from criminal
liability for a sale of adulterated article of food without
knowledge of its actual adulteration. But, we cannot, for
this reason, equate such. an offence with one in which the
co-accused must necessarily have a common knowledge or
design to sell an article actually known to them to be
adulterated. In other words, a particular state of mind,
which could be described as guilty or wrongful, could not,
even if it could be there individually and separately in a)
particular case, provide the connecting link between the co-
accused in a trial for such an offence in order to
constitute the same transaction. The link, if any, has to
be found elsewhere.
In our opinion, considering the character of the offence and
the nature of the activities of manufacturers and
distributors, who generally deal in bulk, and of the
ordinary vendor, who sells particular items to the consumer,
the common link, which could provide the unity of purpose or
design so as to weave their separate acts or omissions into
one transaction, has to be their common intention that a
particular article, found adulterated, should reach the
consumer as food. Ignorance of the fact of adulteration is
immaterial. In order to justify a joint trial of accused
their common object or intention to sell the article as food
is enough. In such a case of a strict liability created by
statute, for safeguarding public health, the mental
connection between the acts and omissions of the
manufacturer, the distributor, and the last vendor would be
provided simply by the common design or intention that an
article of food, found to be adulterated, should reach and
be used as food by the consumer. Each person dealing with
such an article has to prove that he has shown due care and
caution by taking prescribed steps in order to escape
criminal liability. Otherwise, if one may so put it, a mens
rea shared by them is presumed from a common carelessness
exhibited by them. Again, a sale at an anterior stage by a
manufacturer or distributor to a vendor and the sale by the
vendor to the actual consumer could be viewed as linked with
each other as cause and effect.
We think that the activities of the manufacturer, the
distributor and the retail seller are sufficiently
connected, in such a case of sale of an article of food
found to be adulterated, by a unity of purpose and design,
and, therefore, of a transaction, so as to make their joint
trial possible in a suitable case. But, at the same time,
we think that, where, a joinder of several accused persons
concerned with dealing in different ways with the same
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adulterated article of
10 SC/75-4
40
food at different stages is likely to jeopardise a fair
trial, a separate trial ought to be ordered. It is not
proper to acquit or discharge an accused person on this
ground alone. The ordering of a separate trial, in a case
where prejudice to an accused from a joint trial is
apprehended, is enough. Indeed, we can go even further and
say that, ordinarily, they ought to be separately tried.
But, a joint trial of such accused persons is not ab-initio
illegal. It can take place in suitable cases.
We may point out that, in V. N. Kamdar & Anr., v. Municipal
Corporation of Delhi(1), this Court held (at p. 161) :
"The normal rule under the Criminal Procedure
Code is to try each accused separately when
the offence committed by him is distinct and
separate. The provisions of ss. 233 to 239
would indicate that joint trial is the
exception. In State of Andhra Pradesh v.
Cheemalapati Ganeswara Rao & Anr., [1964] (3)
SCR 297, 324) this Court said that separate
trial is the normal rule, and joint trial is
an exception when the accused have
committed separate offences. Section 5(2) of
the Criminal Procedure Code provides that the
provisions of that Code will apply to trial of
an offence under any law other than the Indian
Penal Code subject to any enactment for the
time being in force regulating the manner or
place of investigating, inquiring into, trying
or otherwise dealing with such offence."
In Kadiri Kunhahammad v. The State of
Madras(2), this Court said (at p. 663)
"Section 239(d) authorises a joint trial of
persons accused of different offences
committed in the course of the same
transaction; and there can be no doubt that in
deciding the question whether or not more
persons than one can be tried together under
the said section, the criminal Court has to
consider the nature of the accusation made by
the prosecution. It would be unreasonable to
suggest that though the accusation made by the
prosecution would justify a joint trial of
more persons than one, the validity of such a
trial could be effectively challenged if the
said accusation is not established according
to law. It is true that, in framing the
charge against more persons than one and
directing their joint trial, Courts should
carefully examine the nature of the accusa-
tion; but if they are satisfied that prima
facie the accusation made shows that several
persons are charged of different offences and
that the said offences prima facie appear to
have been committed in the course of the same
transaction, their joint trial can and should
be ordered."
We do not interpret Kadiri Kunhahammad’s case (supra) to
mean that a joint trial of accused persons is obligatory in
every case where a catenation of facts, said to constitute
separate but related or cognate
(1) [1974] (1) S.C.R. 157 161.
(2) A.I.R. 1960 SC 661 @663.
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41
offences, can be viewed as one transaction. The question
whether there should be a joint or separate trial in a case
should be determined on the facts of that case and the
requirements of justice there. As pointed out by this Court
in V. N. Kamdar & Anr. v. Municipal Corporation of Delhi
(supra) the special provisions of Section 20A are only en-
abling and do not give rise to a mandatory duty. They do
not bar either a separatea joint trial of an accused
person if other conditions are satisfied.Similarly, Section
239(d) of the Criminal Procedure Code of 1898,which is
reproduced as Section 223(d) of the Criminal Procedure Code
of 1973, is only an enabling section. No doubt it has to be
shewn that the requirements of Section 239(d) have been
fulfilled whenever this provision is sought to be utilised.
The result is that we think that, in a suitable case, a
vendor, a distributor, and a manufacturer could be tried
together provided the, allegations made before the Court
show that there are connecting links between their
activities so as to constitute the same transaction. The
connecting links, in a case such as the one before us, could
be provided by: firstly, the fact that a sale at an anterior
stage could be viewed as the cause of the subsequent sale;
secondly, the allegation that each of the accused parted
with the article of food when it was in an adulterated state
; and, thirdly, by the common object of the manufacturer the
distributor, and the vendor, that the article should reach
the consumer to be used as food. The third and last
mentioned link seems decisive and must tilt the balance in
favour of legality of a joint trial of the parties
concerned. But, we are also conscious of the fact that
Courts cannot ignore broader requirements of justice.
In the case before us, all that the complaint states is that
the appellant firm had sold the offending ghee to the vendor
Laxmi Narain a day earlier. The assertion that it was in an
adulterated state at that time was wanting in the complaint.
Although, the charge framed, set out above, states that the
sample of ghee sold by Laxmi Narain, to whom it was sold by
the appellant, was found in an adulterated state, yet, it is
not stated there that it was in that very state when the
appellant bad sold it to Laxmi Narain. It is true that
Laxmi Narain successfully pleaded a warranty under which he
obtained the ghee from the appellant firm. It is left to be
infester from these facts that the appellant also sold the
ghee while it was in an adulterated state. It could be
urged that this would follow from the successful defence of
Laxmi Narain. The defects in the charge would not
invalidate the trial. But, we think that a continuation of
such an old prosecution is likely to handicap the accused
Jagdish Chander in his defence. Even if we were to assume
that the charge, as framed, implies the allegation that the
ghee was adulterated also when the distributor sold it to
the vendor, an enquiry in 1975 into the actual state of the
ghee sold by the distributor to the vendor in 1967 would be
obviously difficult. The appellant, content with the
initial acquittal, had probably rested on his oars and not
taken the trouble to challenge the correctness of the
analyst’s report. And, even if that report was quite
correct it may not establish the state in which the small
quantity of ghee analysed was when it was sold by the
distributor. It would impose undue hardship on the
distributor to prove, at this distance of time, the actual
state
42
of the small quantity of ghee analysed which must have been
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a part of the consignment supplied by the distributor who is
perhaps also relying on the manufacturers warranty.
Although we hold, in agreement with the Delhi High Court,
that the joint trial of the appellant with Laxmi Narain was
not illegal, we think that, on the special facts ,of this
case, the interests of justice will be better served by
quashing such a stale charge because the appellant’s defence
will suffer if he is ’called upon to answer it now.
Consequently, we allow these appeals to the extent that we
quash the charge against the appellant and order that he be
discharged.
ALAGIRISWAMI, J.-I agree with my learned brothers as regards
the final conclusions arrived at and the order proposed, But
I think it is necessary to say a few words on the first
question which was decided by the Full Bench of the Delhi
High Court. The question is as follows
"(i) Whether a joint trial of the vendor, the
distributor and the manufacturer for offences
under the Prevention of Food Adulteration Act,
1954 is illegal ?
It is unnecessary to set out the facts which are found in
the judgment of my learned brothers. The Full Bench found
that the joint trial of the vendor Laxmi Narain with the
warrantor Jagdish Chander (the appellant before us) was
permissible as-the actions of both these accused form parts
of the same transaction, that there was a unity of purpose
between the manufacturer, the distributor and the vendor of
the adulterated articles of food sold furnished by the
purpose of all of them to sell, that an indication of a
unity of purpose was sufficient to establish the sameness of
a transaction as contemplated by s. 239 of the Crminal
Procedure Code. The charge framed against the appellant is
as follows
"That you, on or about the 22nd day of August
1967 at 12 noon a sample of ghee was purchased
by Shri V. P. Anand F.I. from accused No. 1
Lakshmi Narain and the said ghee was sold by
you to accused No. 1 Lakshmi Narain on 21-8-
1967 and the said sample of ghee in analysis
was found to be adulterated and hereby com-
mitted an offence punishable under section
7/16 of the Prevention of Food Adulteration
Act of 1954 and within my cognizance."
It would be noticed that while the charge states that the
sample of ghee purchased from Lakshmi Narain was found to be
adulterated, there is no allegation that the ghee sold by
the appellant to Lakshmi Narain was adulterated. While it
may be readily conceded that the common object or common
intention or unity of purpose between the manufacturer, the
distributor and the vendor was to sell the article of food
sold, it is not said that it was to sell the adulterated
article of food. It is true that it is now well established
that for establishing an offence under the Prevention of
Food Adulteration Act it is not necessary to establish mens
rea i.e. criminal intention either on the
43
part of the manufacturer or distributor or vendor. Even
knowledge on the pan of all of them that the food was
adulterated is not necessary. Ignorance on the part of any
one of them that the food was adulterated would not absolve
them of liability. But before the manufacturer, the
distributor and the vendor could be tried jointly it must be
alleged that the manufactured-food was adulterated when the
manufacturer passed it on to the distributor and, it was
also adulterated when the distributor passed it on to the
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vendor and that it was adulterated when the vendor sold it
to the consumer. It is not necessary to prove that the
article of food was adulterated at all the three stages for
the purpose of deciding the validity of the charge being
framed against all the three of them provided the necessary
allegation is there. At that stage :the question of proof
does not come in. The validity of the charge has to be
decided on the, facts put forward as the prosecution case.
If it is not, established against any one of them that the
article of, food manufactured, distributed or sold by him
was adulterated that person will be acquitted, not because
the charge was not valid or was defective but because there
was no proof to substantiate the charge. But without that
allegation there cannot be said to be a unity of purpose or
common object or common intention on the part of an of them
to manufacture, distribute or sell the adulterated food.
The manufacture, distribution and sale of adulterated ghee
would be the same transaction if it was found to be
adulterated at all the three stages. Otherwise it only
means that they were all same transaction only in the sense
that the common object of all of them is the selling of the
ghee. Selling ghee by itself is not an offence; only
selling adulterated ghee is an offence. The Delhi High
Court is not therefore correct in saying that the action of
both the accused form part of the same transaction and there
was unity of purpose of the manufacturer, the distributor
and the vendor furnished by the purpose of all of them to
sell and therefore it was the same transaction and all of
them could be tried together. It would not be the same
transaction in so far as selling adulterated ghee was
concerned unless the ghee was in fact adulterate at every
one of these stages. If the common purpose all of them was
to sell ghee joint trial ofall of them would not be valid
but if it was to sell adulterated gheeit would be
valid,If it is alleged that at every one of the stages, that
is of manufacture,distribution and sale the ghee was
adulterated then it would be the same transaction and they
could all be jointly tried. In the absence of an allegation
that the ghee distributed by the appellant to the ,Vendor
Lakshmi Narain was adulterated both of them cannot be tried
together’ The manufacturer could also have been tried along
with them only if it is alleged that the ghee he
manufactured was adulterated. In the absence of this
’allegation there cannot be a joint trial. At the. stage of
considering the validity of the charge it is the allegation
that is material; at the stage of , considering the guilt of
the parties’ it is proof that is material. In the present
case it may be that the appellant could be prosecuted for
giving a false warranty because he had issued a warranty and
the food sold by the vendor to whom he issued the warranty
was found to be adulterated.
Appeals allowed. P.B.R.
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