Bhagwan Dass Jagdish Chander v. Delhi Administration

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 59 and 60 of 1971. · From the judgment and order dated the 28th 0Gtober, 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(l)(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. 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 tozo : "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 offer.cc pertaining to the sale of any adulterated or misbranded article of food if he proves- ( a) that be purchased the article of foo,d- (i) in a case where a licence is prescribed for the sale thereof, from a nuly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed torm; 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 .. . ,l. BHAGWAN DASS V. DELHI ADMN.

(Beg, J.) 33 (3) Any, person by whom a warranty as is referred to m A 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 Secl!on 19(3), says: "S. 14. No manufacturer, distributor or dealer of any· article B of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed !or.m 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 C a comn1ission agent''. In the course of the trial, Laxmi Narain filed an appl!cat10n praying · that the warrantor may be discharged or acquitted so that Laxm1 · Narain may examme the warrantor as his defence witness to prove his own purchase ot the offending article under a warranty. It may be mentioned that, as the complaint describes the warrantor accused as "M/s. Bhagwan Das J agdish Chander through an authorised person", appearance was put in by Jagdish Chander, a partner, as the accused person responsible on behalf of the tirm.

The trying Magistrate allowed the application of Laxmi N aram and acquitted Jagdish Chander on the ground that Laxmi Narain E would be deprived of a valuable defence unless this was done and relied upon V. N. Chokra v. The State(') 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 F 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 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 Secti?n 1,9(2) of the Act. Thus, both the accused persons were acqmtted.

After their acquittal, the Magistrate impleaded the manutacturers M/s .. Gann Shanker Prem Narain, under section 20A of the Act. Thi; prov!Slon reads as follows : "20A. Where at any time during the trial ot any offence under this Act alleged to have been committed by any perso not bemg the manufacturer, distributor or dealer of any articf~ of food, the Court 1s satisfied, on the evidence adduced b f it, that such manufacturer, distributor or dealer is also conc:r~:~ (1) AIR 1966 Punja]{ 421.. SUPREME GOuRT REP,ORTS ["1975] SUPP. S.C;R. with that offen.ce, then, the Co~rt may, notwithsianding anythipg contained in subcsection (1) of Section 351 of the Code of Criminal Procedure; 1B98, 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 grourid 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 (!) of the Act. · In. the case before us, the prosecutor, the Munkipal Corporation of Delhi, appealed against the acquittals of Laxmi Na rain and Jagdlsh 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 th~ said Act?"

On the !st question, the Full Bench held : that, the. general pro' cedure 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 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 M the sam·e ·transaction, as 1 xplainGed by this, CRourt&inAthc (f)tatethoft Athn_dhra Pradesh v._ Cf heembaapati aneswara ao nr. 1s view was rem orce y 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 iri Andhra Pradesh Grain and Seeds Merchants Assoc.iation v. Union of India(') for this proposition; that, proof (I) [1964] 3 SCR 297. 12) [19701 (2) S.O.C: 71. BHAGWAN DASS V. DELHI ADMN.

(Beg, J.) 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, au indication of a "unity of puqi_qse", which is less stringent than either a "corr1mon object" or a Hco1nmon intentionn, 35 was sufficient to establish the sameness of a transaction for the pnrposes 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 upou 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 establisbed 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 or an adulterated article under the Act, no. right of ari accused person, either in law or justice, was jeopardised by such a joint trial; that, in any event, a person accused of such an offence under the Act "can D always insist that a co-accused should be discharged or acquitte-d on the ground that be 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 ot the Act., the FuH Bench held: that, tb,is prbVlsion, which is an 'Exceptiort 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 F "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, whil~ maintaining the a~quittal 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 acqmttal of Laxm1 N aram. Separate Counsel have, however, appeared aqd 11rgued the case for the appellant firm and its partner Jagdish Chander. We propo~ to deal with t.he case as one only and assume that bot~ the firm and its. partner Jag<\1sh Chander question the validity of the tnal on. a complamt where the only .allegation against the appellant firm, arraigued as an accused through 1ts partner, was that it was a ct1stnbutor. of the .. apulterated ghee sold., The charg" framed, against the appellant was :' "That, on or about the 22nd day of Aug. 1967 at 12 'rioo~; · sample of ghee was P1;1r'chase.d by Sh: V. P. Aiiand F:I. · frnm accused No. I Lakshmi Naram and the said ghee was sold by . 36 (1975] SUPP.

S.C.R. you to accused No. I Laxmi Narain on 21-8-67 and the said sample of ghee on analysis was foun!d to be adulterated and hereby committed an offence punishable under sections 7 /16 of the Prevention of Food A_dulteration Act of 1954 and within my cognizance". The material question before us, shorn of subtlety and bereft ot 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 se!Jer. Every se!Jer 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 se!Jer, 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 arti- .clc of food for sale is also an offence under section 7 of the Act.

But, neither Section 7 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, l'alghal Municipality v. Setharam Rice & Oil Mills('), and in J'. B. Kurup v. Food Inspector, Malappuram l'anchayat('), 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 implcaded as an accused under Section 20A in the course of a trial does not require a separate sanction Section 20A itself lays down that, where the Court trying the offence is itself satisfied that a "manufacturer, distributor, or dealer is also (1)

1974 F. A.C. p. 534(Crl. Appeal Nos. 222, 223, 225 to 227173 etc. etc. decided on 3-7-74). (2) 1969 Kerala Law Times p. 845. BHAGWAN DASS v. DELHI ADMN. (Beg, J.) 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 cram 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 z 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 J agdish Chander to Laxmi Narain on 21-8-67 that, if the ghce was found ad.ulterated in the bands of Laxmi Na rain, the appellant Jagdish Chander could be prosecuted jointly with Laxmi Narain as the two sales were part of the "same transaction" within th.e 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 Lecrislature "has delib_erately left undefined .. We have not come acr:"iss a single deci- .s10n of any Court which has embarked upon the difficult task of de~ning t~e .e~pres~ion. But, it is generally thought that where there IS yr?x1m1ty o~ tm~e or pl.ace or unity of purpose and design or c?ntmmty of act10n m respect of a series of acts, it may be possible to mfer 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 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 imme- ,chately followmg observations (at page 322) : 38 [1975] SUPP, s.c.R. "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 bnt would constitute a different transaction or transactions.

Therefore, even if the expression 'same transaction' alone had been used ins. 235(1) it would have meant a transaction consisting either of a single act or of a s~ries of connected acts. The expression 'same transaction' occurring in els. (a), (c) and (d) of s. 239 as well as that occurring ins. 235(1) ought.to be given the meaning aecordirtg to the normal rule of construction of statutes". . It .is contended that it would be dangerous to leave the "umty of purpose and design", which may constitute transaction, so ' · vague as to bring in the manufacturer and every conceivable distributor as accused persons whenever any adulterated food, manufactured and sealed by one party and distributed by another, is finally sold by a vendor in the market.

The learned Counsel for the appel- · !ant cont~nded that we must, therefore, restrict the concept of "transaction", in a prosecution for sale of an adulterated article 6f E. · food, to an alleged criminal participat,ion in the adulteration of the actual article of food sold. It was l!T!led 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.

Tk 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 manufacturcf could be jointly tried for o!Iences which could be looked npon 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 ob.viously 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 s~ction 7 of the Act. .

Indeed, Section 19 ( 1) specifically rules ant such a defence although S. 19(2) makes it available in the particular case of. the accused who has .. taken .the pn;caut10n of protecting himself from what seems otherwise .to be an absolute liability without proof of gmlty knowledge. Even 1.f we were to widen (') A.T·R 1974 SC 2154. BHAGWAN DASS' v. P}lLHl APMN. (Beg,/,) the concept of "mens rea" here to embrace carelessness or indiffer• ence as the required states of mind in the manufacture or distribu~ tiol\ 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 .B 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 enQj,igh to procure an exemption froni criminal liability for a sale of adulterated· article of food without knowledge of its actu'al 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 1Joe there individually and separately in a particular case, proviqe the connecting link between the coaccused in a trial for such an offence in order to consfaute 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 !iability created by statute, for safeguarding public health, the mental connection between the acts and omissions of the manufactu'rer, 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 shewn du.e .care' .and .caution by. tak.ing prescribed. steps in order to escape cnmmal !rnbahty. Otherwise, if one may so put it, a mens rea shared_by t~em 1s presumed from.a common carelessness exhibited by them.

Agam, a sale· at an antenor stage by a manufacturer or distributor to a vendor and 1he sale by the vendor to the actual consumer could be viewed as linked with each other as cause and effect. th We t?ink that the activi!ies of the manufacturer, the distributor and e retail seller are sufficiently connected, in such a case of sale of an arl!cl.e of food found to be adulterated, . by a unity of purpose ~!!d de~1~, an~, th.erefore,. of a transaction, so as to make their JO~nt trial possible Ill a swtable case. But at the same time we th_mk that, where . a joinder of several ac~nsed persons conc~rned with dealmg in different_ ways with the same adulterated article of 10 SC/75-4 [1975] SUPP, S.C.R. 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 uuder 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 n_o doubt that in deciding the question whether or not more persons than one can be· tried together uuder 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 JJ., 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 accusation; but if they are satisfied that prima facie the accusauon 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 dq 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 (l) [19741 (1) S.C.R. 157@ 161. (2) A.I.R. 1960 SC 661 @663. BHAGWAN DASS v. DELHI Af>MN.- (Beg,!.) .

41 offences, can be viewed as one transaction. The q,uestion whether there + ·should be a joint or separate trial in a case should be deterrnilled 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 enabling and do not give rise to a mandatory duty. They do not bar either a separate or a joint trial of an accused person if other conditions are satisfied. Similarly, Section. 239(d) of the Criminal Procer dure 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 conuecting 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 D 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 canuot ignore broader requirements of justice.

In the case before us, hll 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 F 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 had sold it to Laxmi Narain. It is true that Laxmi Narain successfully pleaded a . warranty under which he ootained the ghee from the appellant firm. It is left to be inferred 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 U 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 SUPJ.l!!r.i;I! (;OUltT RBl'ORTS . [l9751' suPP.

S.C.R. ·A ·of the small quantity of ghee analysed which must have been a part of the consignment supplied by the distributor who is perhaps also relying on the manufacturer's warranty. Although we hold, in agreement with the Pdhi High Court, that tbe 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 JS called upon. to answer it now. Consequently, we allow these appeals to the extent that we quash the charge against the appellant and ~rder that he be discharged. ALAGIRISWAMI, J .-I agree with my learned brothers as regards ·c the final conclusions arrived at and the order propesed., 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 9ut the facts which are found in the judgment of my learned brothers. The Full Bench found that the joint trial of the vendo~ Laxmi Narain with the warrantor J agdish Chander (the appellant before us) was permissible as the actions of ooth these accused form parts of the same transaction, that there w~ a unity o{ 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 oJ' a unity of purpose was sufficient .to establish the sameness of a transaction as conlemplated by s. 239 of the Criminal 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. I 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 committed an offence punishable under section 7/16 of the Prevention of Food Adulteration Act of 1954 and within my cognizance."

1t would be noticed that while the charge states th~t 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 j BHAGWAN DASS v. DELHI ADMN. (Alagiriswami, J.) pan 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.

But before the manufacturer, the distributor and the vendor could be tried jointly it must 43. 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 vendor arid 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 !lt all the three stages for the purpore 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 queruon of proof does not come in. The validity of the charge has·to~be decided on the facts put forward· asthe prosecution c case.

If it is no~ 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 Q of all of. them to manufacture, distribute or sell the adulterated food. The manufacture, distribution and sale of adulterated ghee would be tbe same transaction if it was found to be adulterated at all the three stages. Otherwis.e it only means that they were all sanie transaction only in the sense that the common object of all of them is the sslling of the ghee. Selling ghee by itself is not an ofience; only selling 'adulterated ghee is an offence.

The Delhi High Court is not therefote correct in saying that the action of both the accused forn:t part of the same transaction and there was unity of purpose of the manufacturer, the distributor and the vendor furnished by the purpose of an 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 adulterated· at every one of these stages. If the common purpose all of them was to sell ghee joint trial of all of them would not be valid but if it was t.o sell. adulterated ghee it would be valid. t~ it _is ~eged .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 ve11dor Lakshmi Narain was adulerated both of them canno.t 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 fo the absence of this allegation there cannot be a joint trial. At tJie 8\fige of ~nsidering the Validity of the charge it is the allegation ~t 1s material;, at 'the .stage of considering the guilt of \he parties H 1t is prOOf that 1s matenaL In the present case it may be that the appe~t could be prosecuted for giving a false warranty because he ~ad issued a warranty and the fOOd sold by the vendor to whom he issued the warranty was found to be adulterated. f'.~'El.Jt ,, ' . : ' , A'p(Je'als 'Ill/owed.