T. K. Purushothaman v. State of Kerala — 1991 DIGILAW 471 (KER)

Judgment :- Respondents 3 and 4 in this revision were the accused in C.C. No. 8 of 1987 before the Judicial Magistrate of the First Class, Ambalapuzha. They were tried for offence punishable under Ss. 2(a)(m), 7(i), 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and were found guilty, convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- each with a default sentence of simple imprisonment for three months. The allegation was that on 17-10-1986 at about 2.30 p.m. the second accused sold 1500 grams of adulterated suji wheat rawa to P.W. 1 from the shop owned by the first accused who had employed him as the salesman. In Crl. Appeal No. 54 of 1989 filed by the accused before the Additional Sessions Judge, Alapuzha, the conviction and sentence were set aside and the case the remanded to the trial Court for fresh disposal after impleading the petitioner herein whom the Court found was the manufacturer of the adulterated food article. The judgment is under challenge in this revision. 2. The accused raised a defence under S. 19(2) of the Act before the trial Court which considered it in detail and declined to extend its benefit to them. The Court also felt it unnecessary to implead the manufacturer under S. 20A of the Act and observed : "The allegations made before Court do not show that there are connecting links between the activities of the so-called manufacturers and the accused as to constitute the same transaction. There is no evidence to show as to who parted with the article of food to the accused. Nothing is known as to who had sold suji wheat rawa to the accused. There is no material to show that the so-called Suresh Cottage Industries had manufactured the article in question and had sold the same to the accused. Thus the accused could not prove that the article sold from the shop of P.W. 1 was purchased from the so-called manufacturer. Cash memo if any also could not be produced. These circumstances only throw doubt on the genuineness of the defence plea. Thus the accused could not prove that the article sold from the shop of P.W. 1 was purchased from the so-called manufacturer. Cash memo if any also could not be produced. These circumstances only throw doubt on the genuineness of the defence plea. The prescribed warranty in Form VI-A under R. 12A of the P.F.A. Rules must contain the name of the person to whom it is issued, the particulars of date of sale, the nature and quality of the articles sold, the date and place where the warranty is issued and other details. The nature of the firm also is not made clear. xxx xxx Thus the defence could not in the first instance show that the accused persons had purchased the article in question in the packed condition from any manufacturer on the basis of a warranty and had sold the same in that very condition. From the available evidence it can only be come to the conclusion that the accused were not entitled to the protection under S. 19(2) of the P.F.A. Act ......" 3. The appellate Court, however, took a different view. It summoned the petitioner, questioned him as to the label found on the packets and held that it was prima facie satisfied that he is the manufacturer of the adulterated article. I cannot agree that the appellate Court was justified to do so in the appeal filed by the accused against their conviction and sentence. What the appellate Court did was something which was neither legal nor proper. It was an exercise beyond its jurisdiction while hearing the appeal. 4. As observed already, before the trial Court the accused did not make an application to implead the petitioner. S. 20A of the Act, no doubt, enables the trial Court while trying the case, to have before it all the persons concerned with the offence so that the guilty person/persons could be punished. The section is meant to avoid multiplicity of proceedings and to ensure that there are no conflicting findings in the case. The manufacturer, distributor or dealer could be summoned if the conditions of S. 20A are satisfied. The section is meant to avoid multiplicity of proceedings and to ensure that there are no conflicting findings in the case. The manufacturer, distributor or dealer could be summoned if the conditions of S. 20A are satisfied. Those conditions are that there should be a trial for an offence under the Act while is pending, that the accused in the trial is a person who is other than the manufacturer, distributor or dealer and that the Court is prima facie satisfied on the evidence and materials that the manufacturer, distributor or dealer is also concerned with the offence. The Supreme Court held in Delhi Municipality v. R. Sahai, AIR 1979 SC 1544 : (1979 Cri LJ 969) (at page 970 of Cri LJ) : "The opening lines of S. 20A clearly contemplate a contigency where the discretionary jurisdiction under this Act can be exercised only during the trial of any offence, that is to say, the stage at which the Magistrate can exercise his discretion under this section must be before the trial has concluded and ended in acquittal or conviction. xxx xxx xxx ... where a distributor or manufacturer or any other person is impleaded in the course of a trial, the obligation to get a fresh sanction for such person is dispensed with and the sanction obtained for the last seller in the trial will ensure for the benefit of the prosecution of the other person impleaded also and no further sanction is necessary. It is manifest that this special statutory concession is given to the prosecution only if the conditions mentioned in S. 20A are fulfilled and not otherwise. In other words, the prosecution of S. 20 is not available to the prosecution if the parties concerned are impleaded after the trail is over. In such a case, a fresh trial will have to be started by obtaining sanction under S. 20. This matter is no longer res integra as it has been fully considered by this Court in V. N. Kamdar v. Municipal Corporation, Delhi, (1974) 1 SCR 157 : AIR 1973 SC 2246 : (1973 Cri LJ 1453 where this Court observed as follows (at Pp.2249-50, at page 1456 (of Cri LJ 73)) :- "..... This matter is no longer res integra as it has been fully considered by this Court in V. N. Kamdar v. Municipal Corporation, Delhi, (1974) 1 SCR 157 : AIR 1973 SC 2246 : (1973 Cri LJ 1453 where this Court observed as follows (at Pp.2249-50, at page 1456 (of Cri LJ 73)) :- "..... In order that the manufacturer, distributor or dealer may be impleaded under S. 20A, it is necessary that there should be a trial for an offence committed under the Act by a person and that the manufacturer, distributor or a dealer must be concerned in the offence. When once the manufacturer, distributor or dealer is impleaded, the trial proceeds as if he is also an accused in the case. That is made clear by the closing words of the section. 5. This is a case where the trial Court found the impleadment of the petitioner unnecessary and unwarranted because of paucity of materials to show that he was concerned with the offence. In other words, the trial Court had considered whether it should or not, exercise its jurisdiction under S. 20A of the Act. In my view, the correctness of the decision of the trial Court in that regard could be gone into by the appellate Court when it is hearing an appeal against its decision. The powers of the appellate Court are contained in S. 386, Cr.P.C. They are generally co-extensive with the powers of the trial Court. It has the power to do what the lower Court should and could have done as held by the Supreme Court in Jagat Bahadur v. State of Madhya Pradesh, AIR 1966 SC 945 : (1966 Cri LJ 709). If according to the appellate Court, the trial Court had erred in the exercise of its powers under S. 20A of the Act, it could correct it notwithstanding that S. 20A in terms gives the trial Court jurisdiction to invoke the provision during the trial of any offence under the Act. I am fortified in the above view, by the decision in M/s. Thakur Das Babu Ram v. State of Himachal Pradesh, (1989) 1 FAC 343, where it was held (at page 349) : "An appeal Court is after all 'a Court of error', that is, a Court established for correcting an error". I am fortified in the above view, by the decision in M/s. Thakur Das Babu Ram v. State of Himachal Pradesh, (1989) 1 FAC 343, where it was held (at page 349) : "An appeal Court is after all 'a Court of error', that is, a Court established for correcting an error". The only limitation is that "while purporting to correct an error, the appellate Court cannot do something which was beyond the competence of the trial Court". xxx xxx "The primary object of the introduction of S. 20A being evidence of multiplicity of proceedings and consequential possibility of conflicting findings and avoidance of the escapement of the real culprit by resort to separate trials, wherein the vendor and the warrantor may throw the blame on each other to escape punishment under the Act, the appellate Court should be conceded the power of correcting the error made by the trial Court by an improper exercise of discretion under S. 20A. The provisions of the Prevention of Food Adulteration Act are meant to subserve the interest of the society by ensuring that there should be no adulteration in articles of Food which people consume. If a person is guilty of passing on adulterated articles of food for consumption either as a manufacturer, distributor or an offender thereof, perpetrator of the serious offence should not go unpunished. The guilty person should face the consequence of his action. If the view taken by the trial Court is found to be erroneous and results in miscarriage of justice, the appellate Court, as a Court of error, should have the powers to correct the error. If the Court of appeal feels that the error can only be corrected by directing a retrial, the power of directing retrial cannot be denied to it". 6. In this case, what the appellate Court did was to remand the case for fresh disposal after impleading the petitioner. That direction was not justified in terms of S. 20A of the Act. As stated already, to implead or not, the manufacturer, distributor or dealer, during the trial, fell within the jurisdiction of the trial Court and not of the appellate Court, though it could correct the wrong exercise of jurisdiction, as a Court of correction. In the particular facts and circumstances, interference with the trial Court's judgment was justified and the remand was proper. 7. I decline to interfere. In the particular facts and circumstances, interference with the trial Court's judgment was justified and the remand was proper. 7. I decline to interfere. The trial Court shall decide the case afresh as directed after reconsidering the issue as to the impleadment of the petitioner under S. 20A of the Act, for a just decision. Crl.R.P. is dismissed. Order accordingly.