# BHAGWAN DASS JAGDISH CHANDER v. DELHI.ADYIJNISTRATION

- **Citation:** [1975] Supp. 1 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 1975-03-25
- **Case number:** Criminal Appeal No. 59 and 60 of 1971
- **Bench:** M. H. Beg, A. Alagiriswami An.D N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-dass-jagdish-chander-v-delhi-adyijnistration-6520
- **Pages:** 14

## Headnote

Prevention of Food Adulteration Act, 1954-Ss. 7, 16 and
19(2)-Joint
trial of 1_·e.11dor a11d distributor of food article-If legal-S. 20A-Scope of.
The appellant, a firm of ghee merchants, through its partner as A2 w;is
charged with having sold ghee to Al (the vendor of ghee). A san1ple of that
·gheC: purch~scd_ 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
or Food Adulteration Act, 1954.
.
At the trial, the vendor prayed for the discharge or acquittal of the warrantor so that he might examine the v.rarrantor as his defence \vitness '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 bys. 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 \Vhethcr the charge should
be quashed because two accused were set up for trial jointly.
HELD : The High Court was right in holding that the joint trial of the
·<.!ppellant with the vendor was not illegal.
[42A]
(l)(a) Jn a suitable case, a vendor, a
distributor, and a manufacturer
could be tried together provided the allegations made before the Court show
that there \Vere 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 manufacturer, the distributor and the vendor was that the article
st.ould 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-DJ
(b) A rnens rea as a particular state of mind which could be described
as guilty or wrongful 'vas 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 Uttnr Pradesh, A.LR. 1961 S.C. 631, referred
to.
(c) Where
~ jOinder of several accused persons concerned dealing in
different \Vays 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 nb' initio illegal. [40A]
Jt·. N. Knn1dar & Anr. v. Municipal Corporation of Delhi [19741 lS.C.R.
157 Ill' 161 and Kadiri Kunhammad v. The State of Madras.
A.I.R.
1960,
· S.C. 661 @663, followed.
f
,,
,l
j
.,
BHAGW.AN DASS V. DELHI ADMN. (Beg, J.)
31
(2) Neither S. 7 nor S. 14 of the Act bars trial of several offences by .A
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•
<.)f
"sale" in sub-s. (xiii) of
the Act.
is
wide
enough
to
include
every
kind of .sefler. 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 .perron who
could be the last seller is described as "the vendor'', could not affect a liabili_ty. fo~ an offence under s. :; ·_of the Act_ by a sale of an.~ar.ticle · oT food
...;·
'vhich is found to be
adulterated.
A sale of an
~rticle of .food
by a
D
umanufacturer, distri!tOr, or dealer"
is , a distinct
and· separable offence.
Section 14 was not·
ant to ·carve out an exemption in favour of a <listri·
butor ·o:r a manufact
r who sells articles of food; found to be adulterated,
irrespe

## Text

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BHAGWAN DASS JAGDISH CHANDER
v.
DELHI.ADYIJNISTRATION
March 25, 1975
[M. H. BEG, A. ALAGIRISWAMI AN.D N. L. UNTWALIA, JJ.J
Prevention of Food Adulteration Act, 1954-Ss. 7, 16 and
19(2)-Joint
trial of 1_·e.11dor a11d distributor of food article-If legal-S. 20A-Scope of.
The appellant, a firm of ghee merchants, through its partner as A2 w;is
charged with having sold ghee to Al (the vendor of ghee). A san1ple of that
·gheC: purch~scd_ 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
or Food Adulteration Act, 1954.
.
At the trial, the vendor prayed for the discharge or acquittal of the warrantor so that he might examine the v.rarrantor as his defence \vitness '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 bys. 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 \Vhethcr the charge should
be quashed because two accused were set up for trial jointly.
HELD : The High Court was right in holding that the joint trial of the
·<.!ppellant with the vendor was not illegal.
[42A]
(l)(a) Jn a suitable case, a vendor, a
distributor, and a manufacturer
could be tried together provided the allegations made before the Court show
that there \Vere 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 manufacturer, the distributor and the vendor was that the article
st.ould 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-DJ
(b) A rnens rea as a particular state of mind which could be described
as guilty or wrongful 'vas 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 Uttnr Pradesh, A.LR. 1961 S.C. 631, referred
to.
(c) Where
~ jOinder of several accused persons concerned dealing in
different \Vays 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 nb' initio illegal. [40A]
Jt·. N. Knn1dar & Anr. v. Municipal Corporation of Delhi [19741 lS.C.R.
157 Ill' 161 and Kadiri Kunhammad v. The State of Madras.
A.I.R.
1960,
· S.C. 661 @663, followed.
f
,,
,l
j
.,
BHAGW.AN DASS V. DELHI ADMN. (Beg, J.)
31
(2) Neither S. 7 nor S. 14 of the Act bars trial of several offences by .A
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•
<.)f
"sale" in sub-s. (xiii) of
the Act.
is
wide
enough
to
include
every
kind of .sefler. 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 .perron who
could be the last seller is described as "the vendor'', could not affect a liabili_ty. fo~ an offence under s. :; ·_of the Act_ by a sale of an.~ar.ticle · oT food
...;·
'vhich is found to be
adulterated.
A sale of an
~rticle of .food
by a
D
umanufacturer, distri!tOr, or dealer"
is , a distinct
and· separable offence.
Section 14 was not·
ant to ·carve out an exemption in favour of a <listri·
butor ·o:r a manufact
r who sells articles of food; found to be adulterated,
irrespective of the qqesiion whether any warranty was given for them. [36C·F1
(3)(a) The special provisions contained in Ss. 19(2) and 20A do not take
away or deroga~e from the effect of the otdinary provisions ·of · the Ja\V
\Vhich enable separate as well as joint trials of accused persons in accordance
. C
with the provisions of the old Ss. 233 to 239, Cr. P. C.
On the other hand,
there is no logically sound rCason why, if a distributor or a
manufacturer
can be subsequently in1pleaded i.1nder s. 20A of the Act, he cannot ·be joined
a·s a CO:accused initially in a joint trial if the allegations made iustify s.uch .a
course. [37B]
·
·· "
(b) The special provisions of S. 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 S. 239(d),
Cr. P.C. is only an enabling section. f41·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 V.-'ou]d not invalidate a trial.
Even so,
continuation of such an old prosecution is likely to handicap the appellant
in his defence. Assuining that the charge. implied an allegation that ghee
was adulterated v.-·hen 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~HJ
Alagiri.(wami, 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 all of
them could be tried together.
[43E]
D
(1) If the common purpose of all. of them was to sell ghee, joint trial G
0f all of them would not be valid; but, if it was to sell adulterated ghce it
would be valid.
If it is aileged that at every one of the sta_ges $lice
was
~d.ulterate? then it Wollld be the same transaction and they could all
be
101ntly tned. In the absence of an aJlegation that the ghee di_stributed by
the appe1lant to the vendor was adulterated both of them could not be tried
together.
[43G]
. (2) At ~he stag~ of considering the validity of the charge, if- is the alle· .•H
~at1on that is. matenal ; at the stage of considering the grult Of the parties it
is proof that ts material. [ 43H]
'
.i
In the instant case, although the charge :::tates that_ the ght:;e_ purchased
tfrom the vendor was found tp be adulterated, there was _no_ alleg'ation thiit
Ube .ghee. SC!ld by the . appellant t? the vendor was adulterated. While the
common obJect \Vas ~o sen the article of food sold, it is not said that it was
to sell adulterated article of food.-
[42E]
·
32
SUPREME COURT REPORTS
(1975] SUPP. S.C.R.
A
(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 th'e
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part of all of them that the food was adulterated is not necessary. Ignorance
f.
on the part of any one of them that the food was adulterated wouldl not absolve
them of liability.
[42HJ
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,
(b)
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
D
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 :
G
"20A.
Where at any time during the trial ot any offence
H
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..
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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?"
G
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
H
e
1
xplainGed by this, CRourt&inAthc (f)tatethoft Athn_dhra Pradesh v._ Cf heembaapati
aneswara
ao
nr.
;
a ,
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.
f
•
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
A
was sufficient to establish the sameness of a transaction for the pnrB
poses 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 estabC
lisbed 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. ·
E
. , 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
G
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
H
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
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SUPREME COURT REPORTS
(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
G
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
H
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
A
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 accorB
dance 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
c
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
D
"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
E
F
to undertake a definition of that which the Lecrislature "has delib_erately left undefined .. We have not come acr:"iss a single deciG
.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 seveH
ral 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
SUPREME COURT REPORTS
[1975] SUPP, s.c.R.
A
"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".
B
c
. It .is contended that it would be dangerous to leave the "umty
D
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 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
a
"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 partiF
cular 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
G.
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
H
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,/,)
3!1
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 rea-
'·
son, 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
D
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
E
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 !iaF
bility 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
G
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
H
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
SUPREME COURT REPORTS
[1975] SUPP, S.C.R.
A
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
B
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) :
c
"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
D
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
E
F
G
H
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 condiB
tions 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
C
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
E
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 deG
fence 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
B
such a stale charge because the appellant's defence will suffer if he JS
called upon.