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PETITIONER: BHAGWAN DASS JAGDISH CHANDER

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT25/03/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 1309            1975 SCR   30  1975 SCC  (1) 866  CITATOR INFO :  F          1975 SC2178  (8)  RF         1976 SC 621  (34)  APL        1983 SC 545  (7)  D          1984 SC1492  (8)

ACT: Prevention  of  Food Adulteration Act, 1954-Ss.  7,  16  and 19(2)-Joint trial of vendor and distributor of food article- If legal-S. 20A-Scope of.

HEADNOTE: The appellant, a firm of ghee merchants, through its partner as A2 was charged with having sold ghee to Al (the vendor of ghee).   A  sample  of  that  ghee  purchased  by  the  Food Inspector  was found (on analysis) to be  adulterated.   The two  accused were prosecuted jointly under ss. 7 and  16  of the Prevention of Food Adulteration Act, 1954. At  the  trial,  the  vendor prayed  for  the  discharge  or acquittal  of  the warrantor so that he  might  examine  the warrantor  as his defence witness to prove his own  purchase of  the  article under a warranty.   The  trying  magistrate acquitted the partner of the appellant.  The vendor was also acquitted on the ground that he was protected by a  warranty covered by s. 19(2) of the Act. On appeal, the High Court, while maintaining acquittal of A- 1,  set aside the acquittal of the appellant (A-2).  On  the question  whether the charge should be quashed  because  two accused were set tip for trial jointly. HELD  : The High Court was right in holding that  the  joint trial  of  the appellant with the vendor  was  not  illegal. [42A] (1)(a)  In a suitable case, a vendor, a distributor,  and  a manufacturer   could   be  tried   together   provided   the allegations  made  before  the Court show  that  there  were connecting   links  between  their  activities  so   as   to constitute the same transaction.  The connecting links, in a case  could  be provided by (i) the fact that a sale  at  an anterior  stage  could  be  viewed  as  the  cause  of   the subsequent  sale;  (ii)  the allegation  that  each  of  the accused  parted with the article of food when it was  in  an adulterated  state  and  (iii)  the  common  object  of  the

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manufacturer,  the distributor and the vendor was  that  the article  should reach the consumer to be used as food.   The third and last link is decisive and must tilt the balance in favour  of  legality  of  a  joint  trial  of  the   parties concerned. [41-C-D] (b)A  mens rea as a particular state of mind which could  be described  as  guilty  or  wrongful  was  not  needed,  and, therefore, could not provide the connecting link between the co-accused  in  a  trial for such an  offence  in  order  to constitute the same transaction. [39D] Sarjoo  Prasad  v. The State of Uttar Pradesh,  A.I.R.  1961 S.C. 631, referred (c)Where  a  joinder of several  accused  persons  concerned dealing in different ways with the same adulterated  article of  food at different stages is likely to jeopardise a  fair trial,  a  separate trial ought to be ordered.   It  is  not proper  to  acquire or discharge an accused person  on  this ground  alone.  The order of separate trial in a case  where prejudice to an accused from a joint trial is apprehended is enough.   A  joint trial of such accused persons is  not  ab initio illegal. [40A] V.N.  Kamdar  & Anr. v. Municipal  Corporation  of  Delhi [19741  IS.C.R. 157 @-161 and Kadiri Kunhammad v. The  State of Madras.  A.I.R. 1960, S.C. 661 @663, followed.                              31 (2)Neither S. 7 nor S. 14 of the Act bars trial of several offences by the same accused person, be he a manufacturer, a distributor or a last seller referred to as "the vendor"  in S. 14 of the Act.  The definition of "sale" in sub-s. (xiii) of the Act, is wide enough to include every kind of  seller. Every seller can be prosecuted for an offence created by  s. 7 of the Act. The  mere fact that, for purposes of  S.  14, the person who could be thelast  seller is  described  as "the  vendor",  could not affect a liability for an  offence under s. 7 of the Act by a sale of an article of food  which is found to be adulterated.  A sale of an article of food by a  " manufacturer, distributor or dealer" is a distinct  and separable offence.  Section 14 was not meant to carve out an exemption  in favour of a distributor or a manufacturer  who sells   articles   of  food,  found   to   be   adulterated, irrespective of the question whether any warranty was  given for them. [36C-F] The spacial provisions contained in Ss.19(2) and 20A do  not take  away  or  derogate from the  effect  of  the  ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the  provisions of  the  old Ss. 233 to 239, Cr.  P. C. On the  other  hand, there is no logically sound reason why, if a distributor  or a manufacturer can be subsequently impleaded under s. 20A of the Act, he cannot be joined as a co-accused initially in  a joint trial if the allegations made justify such a course.[37B] (b)The special provisions of S. 20A are only enabling  and do not give rise toa  mandatory  duty.   They  do  not  bar either  a separate or a joint trial of an accused person  if other  conditions are satisfied.  Similarly S.  239(d),  Cr. P.C. is only an enabling section. [41-B] In the instant case although the charge stated that the ghee sold  by the vendor was found to be adulterated, it  is  not stated  that  it was in that very state when  the  appellant sold  it to the vendor.  It is left to be inferred from  the charge  that  the  appellant  also  sold  the  ghee  in   an adulterated  state.  It is true that defects in  the  charge would not invalidate a trial.  Even so, continuation of such an  old prosecution is likely to handicap the  appellant  in

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his defence.  Assuming that the charge implied an allegation that ghee was adulterated when the appellant sold it to  the vendor an enquiry in 1975 into the actual state of the  ghee sold  by  the’  distributor  in  1967  would  be   obviously difficult.    It   would  impose  undue  hardship   on   the distributor  to prove at this distance of time,  the  actual state of the small quantity of ghee analysed. [41G-H] Alagiriswami, J. (concurring in the final result) The High Court was not correct in saying that the action  of both  the  accused formed part of the same  transaction  and there  was  unity  of  purpose  of  the  manufacturer,   the distributor  and the vendor furnished by the purpose of  all of them to sell, and, therefore. it was the same transaction and ill of them could be tried together. [43E] (1)If the common purpose of all of them was to sell  ghee, joint  trial of all of them would not be valid; but,  if  it was  to sell adulterated ghee it would be valid.  If  it  is alleged that at every one of the stages ghee was adulterated then it would be the same transaction and they could all  be jointly  tried.   In the absence of an allegation  that  the ghee  distributed  by  the  appellant  to  the  vendor   was adulterated both of them could not be tried together. [43G] (2)At the stage of considering the validity of the charge, it  is  the allegation that is material ; at  the  stage  of considering  the guilt of the parties, it is proof  that  is material. [43H] In  the  instant case, although the charge states  that  the ghee purchased from the vendor was found to be  adulterated, there was no allegation that the ghee sold by the  appellant to the vendor was adulterated.  While the common object  was to sell the article of food sold, it is not said that it was to sell adulterated article of food. [42E] 32 (3)It is now well settled that for establishing an offence under  the  Act it is not necessary to  establish  mens  rea i.e.,   criminal  intention  either  on  the  part  of   the manufacturer  or distributor or vendor.  Even  knowledge  on the part of all of them that the food was adulterated is not necessary.   Ignorance on the part of any one of  them  that the   food  was  adulterated  would  not  absolve  them   of liability. [42H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 59 and 60 of 1971. From the judgment and order dated the 28th October, 1970  of the  Delhi  High Court in Criminal Appeals Nos. 8 and  9  of 1969. E.   C. Agarwala, for the appellant (in both the appeals) B.   P. Maheshwari, for respondent no, 2. The  Judgment  of  M. H. Beg and N.  L.  Untwalia,  JJ.  was delivered  by  Beg, J. A. Alagiriswami, J. gave  a  separate Opinion. BEG,  J.-These two criminal appeals, after certification  of the  cases as fit for decision by this Court, under  Article 134(1) (c) of the Constitution, arise out of the prosecution of  M/s.   Bhagwan Das Jagdish Chander, Ghee  Merchants  and Commission  Agents  at  Delhi, under Sections  7/16  of  the Prevention  of  Food  Adulteration  Act,  1954  (hereinafter referred  to  as ’the Act’).  The appellant  was  prosecuted jointly with Laxmi Narain, the vendor of 450 gms. of ghee to a Food Inspector, on 22-8-1967.  On analysis, the sample was found  to be adulterated.  Laxmi Narain, a partner  of  M/s.

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Laxmi  Sweets, Delhi, in defence, successfully  relied  upon Section  19(2)  of the Act and was acquitted.   Section  19, which reads as follows, may be set out here in toto :               "19(1) It shall be no defence in a prosecution               for  an offence pertaining to the sale of  any               adulterated  or misbranded article of food  to               allege merely that the vendor was ignorant  of               the  nature, substance or quality of the  food               sold  by  him  or that  the  purchaser  having               purchased  any  article for analysis  was  not               prejudiced by the sale.               (2)A  vendor  shall not be deemed  to  have               committed an offence pertaining to the sale of               any adulterated or misbranded article of  food               if he proves-               (a)that he purchased the article of food----               (i)   in a case where a licence is  prescribed               for  the  sale thereof, from a  duly  licensed               manufacturer, distributor or dealer;               (ii)in    any   other   case,    from    any               manufacturer, distributor or dealer,               with  a  written warranty  in  the  prescribed               form; and               (b)   that  the article of food while  in  his               possession  was  properly stored and  that  he               sold it in the same state as he purchased it.               33               (3)Any  person  by whom a  warranty  as  is               referred  to in Section 14 is alleged to  have               been given shall be entitled to appear at  the               hearing and give evidence".               Section 14 of the Act, to which reference  was               made in Section 19(3), says:               "S.  14.   No  manufacturer,  distributor   or               dealer of any article of food shall sell  such               article  to any vendor unless he also gives  a               warranty  in  writing in the  prescribed  form               about  the nature and quality of such  article               to the vendor.               Explanation.-In  this section, in  sub-section               (2)  of  Section 19 and in  Section  20A,  the               expression   "distributor"  shall  include   a               commission agent". In   the  course  of  the  trial,  Laxmi  Narain  filed   an application praying that the warrantor may be discharged  or acquitted so that Laxmi Narain may examine the warrantor  as his  defence  witness  to  prove his  own  purchase  of  the offending  article  under a warranty.  It may  be  mentioned that,  as the complaint describes the warrantor  accused  as "M/s.   Bhagwan  Das Jagdish Chander through  an  authorised person",  appearance  was  put  in  by  Jagdish  Chander,  a partner, as the accused person responsible on behalf of  the firm. The  trying  Magistrate  allowed the  application  of  Laxmi Narain  and  acquitted Jagdish Chander on  the  ground  that Laxmi Narain would be deprived of a valuable defence  unless this  was done and relied upon V. N. Chokra v. The  State(1) in support of this action.  Of course, an accused person has a right to appear in defence under Section 342A of the  Code of  Criminal Procedure; and, Laxmi Narain, taking  advantage of  this provision, did depose in his own defence.  But,  it seems  that  it  was urged on behalf of  Laxmi  Narain  that Jagdish  Chander  could  not be compelled  to  appear  as  a defence  witness until he had been discharged or  acquitted. The  Magistrate accepted this ground as good enough for  the

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acquittal  of  Jagdish  Chander.   After,  the  evidence  of Jagdish Chander and Laxmi Narain, as defence witnesses,  the trying Magistrate acquitted Laxmi Narain also on the  ground that  Laxmi  Narain was protected by a warranty  covered  by Section  19(2) of the Act.  Thus, both the  accused  persons were acquitted. After   their  acquittal,  the  Magistrate   impleaded   the manufacturers,  M/s.   Gauri  Shanker  Prem  Narain,   under section 20A of the Act.  ’This provision reads as follows :                "20A.  Where at any time during the trial  of               any  offence  under this Act alleged  to  have               been  committed by any person, not  being  the               manufacturer,  distributor  or dealer  of  any               article  of food, the Court is  satisfied,  on               the  evidence  adduced before  it,  that  such               manufacturer,  distributor or dealer  is  also               concerned               (1)   AIR 1966 Punjab 421.               34               with  that  offence,  then,  the  Court   may,               notwithstanding  anything  contained  in  sub-               section  (1)  of Section 351 of  the  Code  of               Criminal  Procedure,  1898, or in  Section  20               proceed  against him as though  a  prosecution               had been instituted against him under  section               20". Although, we are not concerned in the appeals before us with the  prosecution  of the manufacturer, M/s.   Gauri  Shanker Prem  Narain, yet, we find that one of the questions  framed for  consideration  and  decided by  the  Delhi  High  Court relates to the meaning and scope of Section 20A of the  Act. We  may  mention that a statement has been made at  the  Bar that  the manufacturer has also been acquitted.  We  do  not know  whether  this  acquittal was on the  ground  that  the manufacturer  cannot be impleaded under section 20A  of  the Act after the trial is concluded by the acquittal of the two accused.   It is clear that Section 20A contemplates  action which  can only be taken during the course of the trial.   A separate  trial  would  require a "written  consent  of  the Central  Government  or  the State  Government  or  a  local authority  or  of  a person authorised  in  this  behalf  by general  or special order by the Central Government  or  the State  Government  or  a local authority", unless  it  is  a complaint  by a purchaser, other than a Food Inspector,  who could rely upon Section 12 of the Act.  But, an addition  of an  accused  under  section 20A of the  Act  constitutes  an expressly  laid  down  exception to  the  requirement  of  a sanction under section 20(1) of the Act. In  the  case  before  us,  the  prosecutor,  the  Municipal Corporation  of  Delhi, appealed against the  acquittals  of Laxmi Narain and Jagdish Chander.  In the Delhi High  Court, two  questions, arising in the case before us and  in  other similar  cases, were framed and referred for decision  by  a Full Bench as follows :               "(i) Whether a joint trial of the vendor,  the               distributor   and   the   manufacturerer   for               offences   under   the  Prevention   of   Food               Adulteration Act, 1954 is illegal ? and               (ii)  What is the scope of Section 20A of  the               said Act ?" On  the  1st  question. the Full Bench  held  :  that;-  the general procedure for joint trials, found in Sections 234 to 239 of the Criminal Procedure Code, applies to  prosecutions under  the Act which contains no other or special  procedure for  joinder  of charges or of accused persons in  the  same

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trial; that, the joint trial of the vendor Laxmi Narain with the warrantor Jagdish Chander was permissible as the actions of both these accused form parts of the same transaction, as explained  by this Court in the State of Andhra  Pradesh  v. Cheemalapati  Ganeswara Rao & Anr.(1); that, this  view  was reinforce  by  the consideration that mens rea  was  not  an essential  element for offences under the Act, and the  High Court  relied on the pronouncement of this Court  in  Andhra Pradesh  Grain and Seeds Merchants Association v.  Union  of India(2) for this proposition; that, proof (1)  [1964] 3 SCR 297. (2)  [1970] (2) S.C.C. 71.                              35 of  a  guilty  mind is not necessary  in  statutes  creating absolute  liability for offences against public  health  and public welfare; that, there was a "unity of purpose" between the   manufacturer  and  distributor  and  vendor   of   the adulterated article of food sold furnished by the purpose of all  of  them to sell; that, an indication of  a  "unity  of purpose",  which  is less stringent than  either  a  "common object" or a "common intention", was sufficient to establish the  sameness of a transaction for the purposes  of  Section 239  of  the  Criminal Procedure Code;  that,  although  the joinder of the vendor or manufacturer in a single trial  was legally  valid under section 239 of the  Criminal  Procedure Code,  it did not appear to be incumbent upon the  Court  to hold  such a joint trial where such joinder  may  jeopardise the interests of justice; that, Section 19 of the Act, as it stands,  does  not  require that  the  warrantor  should  be separately prosecuted only after the vendor had successfully established  that he could rely upon a warranty  covered  by Section  19(2) of the Act; that, as both the vendor and  his warrantor  could get an adequate opportunity to prove  their cases  in a trial for sale of an adulterated  article  under the  Act,  no right of an accused person, either in  law  or justice, was jeopardized by such a joint trial; that, in any event,  a  person accused of such an offence under  the  Act "can always insist that a co-accused should be discharged or acquitted  on the ground that he wants to examine him  as  a witness";  that,  Section 19(3) of the Act confers  a  right upon  the  vendor  and  not upon  the  warrantor;  that,  no interests  of an accused person were prejudicially  affected in the case before us by a joint trial of the vendor and the distributor. As  regards  Section 20A of the Act, the  Full  Bench  held: that,  this provision, which is an Exception to Section  351 (1)  of the Criminal Procedure Code, "can be  invoked  after the  trial  of the vendor has commenced and  before  it  has concluded and not after that"; and that, Section 20A of  the Act  is  not  controlled  by Section  239  of  the  Criminal Procedure  Code  but is a self contained provision  so  that "the person concerned in the offence", mentioned therein, is not to be equated with "a person who has committed the  same offence", mentioned in Section 239 of the Criminal Procedure Code. The  High  Court, while maintaining the acquittal  of  Laxmi Narain,  set  aside  the acquittal  of  the  appellant  M/s. Bhagwan Das Jagdish Chander.  It is not clear to us why  two appeals to this Court became necessary as the appellant does not  question  the  correctness of the  acquittal  of  Laxmi Narain.  Separate Counsel have, however, appeared and argued the  case  for the appellant firm and  its  partner  Jagdish Chander.   We propose to deal with the case as one only  and assume  that both the firm and its partner  Jagdish  Chander question the validity of the trial on a complaint where  the

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only allegation against the appellant firm, arraigned as  an accused  through its partner, was that it was a  distributor of the adulterated ghee sold.  The charge framed against the appellant was               "That,  on or about the 22nd day of Aug.  1967               at  12 noon a sample of ghee was purchased  by               Sh.   V.  P.  Anand F.I. from  accused  No.  1               Lakshmi Narain and the said ghee was sold by                                     36               you  to accused No. 1 Laxmi Narain on  21-8-67               and  the said sample of ghee on  analysis  was               found  to be adulterated and hereby  committed               an  offence punishable under sections 7/16  of               the  Prevention  of Food Adulteration  Act  of               1954 and within my cognizance". The  material  question  before us, shorn  of  subtlety  and bereft of verbiage, could be said to, be: Should this charge be  quashed,  after  holding that  the  prosecution  of  the appellant,  which  was  duly  sanctioned  by  the  competent authority,  was  invalid  merely  because,  initially,   the appellant  was sent up for trial jointly with Laxmi  Narain, or, alternatively, should we quash it on any other ground? We  are  not impressed by the argument  that  a  distributor could  only  be  prosecuted for  selling  without  giving  a warranty  to  a  vendor which is a  separate  offence  under section  14 of the Act.  It is clear from Section 14  itself that a manufacturer as well as a distributor can sell.   The definition of "Sale", given in sub s. (xiii) of the Act,  is wide  enough to include every kind of seller.  Every  seller can be prosecuted of an offence created by Section 7 of  the Act  which  prohibits a sale as well as distribution  of  an adulterated  article of food.  The mere fact that,  for  the purposes  of  Section 14, the person who could be  the  last seller,  in the sense that he sells to the actual  consumer, is  described as "the vendor", could not affect a  liability for  an offence under section 7 of the Act by a sale  of  an article of food which is found to be adulterated.  A sale of an  article  of  food by a  "manufacturer,  distributor,  or dealer" is a distinct and separable offence.  Section 14 was not  meant  to  carve  out  an  exemption  in  favour  of  a distributor  or a manufacturer who sells articles  of  food, found  to  be  adulterated,  irrespective  of  the  question whether any warranty was given for them.It is true that  the manufacture of an adulterated article of food forsale    is also  an offence under section 7 of the Act.   But,  neither Section7 nor Section 14 of the Act bars trial of  several offences by the same accused person, be he a manufacturer, a distributor,  or a last seller, referred to as "the  vendor" in Section 14 of the Act. We are also unable to accept as correct a line of  reasoning found  in  V.  N.  Chokra v.  The  State  (supra)  and  Food Inspector,  Palghat  Municipality  v. Setharam  Rice  &  Oil Mills(1),  and in P. B. Kurup v. Food Inspector,  Malappuram Panchayat(2),  that, in every case under the Act, there  has to  be initially a prosecution of a particular seller  only, but  those  who may have passed on or sold  the  adulterated article  of  food to the vendor, who  is  being  prosecuted, could  only be brought in subsequently after a warranty  set up  under  section 19(2) has been pleaded and  shown  to  be substantiated.   Support  was  sought for  such  a  view  by referring  to  the  special provisions of  Section  20A  and Section 19(2) and Section 20 of the Act.  A reason for  Sec. 20A  seems to be that the prosecution of a person  impleaded as  an  accused under Section 20A in the course of  a  trial does not require a separate sanction Section 20A itself lays

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down  that,  where the Court trying the  offence  is  itself satisfied  that a "manufacturer, distributor, or  dealer  is also (1)1974  F. A.C. V. 534(Crl.  Appeal Nos. 222, 223,  225  to 227/73 etc. etc. decided on 3-7-74). (2) 1969 Kerala Law Times p. 845. 37 concerned  with an offence", for which an accused  is  being tried, the necessary sanction to prosecute will be deemed to have  been  given.  Another reason seems to be that  such  a power enables speedy trial of the really guilty parties.  We are in agreement with the view of the Delhi High Court, that these  special provisions do not take away or derogate  from the  effect  of  the ordinary provisions of  the  law  which enable  separate as well as joint trials of accused  persons in accordance with the provisions of the old Sections 233 to 239  of Criminal Procedure Code.  On the other  hand,  there seems  no logically sound reason why, if a distributor or  a manufacturer  can be subsequently impleaded,  under  Section 20A  of  the  Act,  he cannot  be  joined  as  a  co-accused initially  in a joint trial if the allegations made  justify such a course. This  brings us to the most debated point in the  case:  Was the  sale of ghee on 22-8-67 by the last seller  or  vendor, Laxmi  Narain,  so connected with the sale  by  the  accused appellant  Jagdish Chander to Laxmi Narain on 21-8-67  that, if  the  ghee was found adulterated in the  hands  of  Laxmi Narain,  the appellant Jagdish Chander could  be  prosecuted jointly with Laxmi Narain as the two sales were part of  the "same  transaction" within the meaning of Section 239(d)  of Criminal Procedure Code of 1898 corresponding to Section 223 of the Code of 1973? We  do  not propose to attempt, in this case,  the  task  of defining exhaustively what constitutes the same  transaction within the meaning of Section 239 of Criminal Procedure Code of  1898  corresponding  to  Section  223  of  the  Criminal Procedure  Code  of 1973.  It is practically  impossible  as well  as  undesirable  to attempt such  a  definition  of  a concept which has to be necessarily elastic.  Moreover, this Court  has,  in the State of Andhra Pradesh  v.  Cheemalpati Ganeshwara Rao and Anr. (supra), already expressed its views (at  page 321.), which we respectfully quote and follow,  on this question :               "What  is meant by ’same transaction’  is  not               defined  anywhere  in the  Code.   Indeed,  it               would always be difficult to define  precisely               what   the   expression  means.    Whether   a               transaction can be regarded as the same  would               necessarily  depend upon the particular  facts               of  each  case  and it seems to  us  to  be  a               difficult  task to undertake a  definition  of               that  which the Legislature  has  deliberately               left  undefined.   We have not come  across  a               single   decision  of  any  Court  which   has               embarked  upon the difficult task of  defining               the expression.  But, it is generally  thought               that where there is proximity of time or place               or  unity of purpose and design or  continuity               of  action in respect of a series of acts,  it               may  be possible to infer that they form  part               of the same transaction.  It is, however,  not               necessary  that  every one of  these  elements               should  co-exist  for  a  transaction  to   be               regarded  as  the same.  But if  several  acts               committed by a person show a unity of  purpose

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             or design that would be a strong  circumstance               to  indicate that those acts form part of  the               same transaction". Learned  Counsel for the appellant, however. relies  on  the immediately following observations (at page 322)                              38               The connection between a series of acts  seems               to us to be an essential ingredient for  those               acts  to constitute the same transaction  and,               therefore,  the mere absence of the words  ’so               connected together as to form in cl. (a),  (c)               and   (d)   of  S.  239  would   make   little               difference.  Now, a transaction may consist of               an isolated act or may consist of a series  of               acts.   The series of acts which constitute  a               transaction  must  of necessity  be  connected               with one another and if some of them stand out               independently, they would not form part of the               same   transaction  but  would  constitute   a               different    transaction   or    transactions.               Therefore,   even  if  the  expression   ’same               transaction’ alone had been used in s.  235(1)               it  would have meant a transaction  consisting               either  of  a  single act or of  a  series               of  connected  acts.   The  expression   ’same               transaction’  occurring in cls. (a),  (c)  and               (d) of s. 239 as well as that occurring in  s.               235(1) ought to be given the meaning according               to   the  normal  rule  of   construction   of               statutes". It  is  contended that it would be dangerous  to  leave  the "unity  of  purpose  and design",  which  may  constitute  a transaction,  so vague as to bring in the  manufacturer  and every  conceivable distributor as accused  persons  whenever any  adulterated food, manufactured and scaled by one  party and  distributed by another, is finally sold by a vendor  in the market.  The learned Counsel for the appellant contended that   we  must,  therefore,  restrict  the  concept  of   a "transaction",  in a prosecution for sale of an  adulterated article of food, to an alleged criminal participation in the adulteration  of  the actual article of food sold.   It  was urged  that some vague and general connection or concern  of all  the co-accused as manufacturers or distributors of  the article  sold  will  not  do.   It  had,  according  to  the contention  on behalf of the appellant, to  be  specifically alleged that the accused was concerned with the adulteration or  sale  of  the  particular article  of  food  sold.   The argument  of the learned Counsel for the appellant seems  to us  to  go  so  far as to suggest  that  an  allegation  was indispensable of a participation in some kind of  conspiracy to  sell  the actual adulterated article of food  which  was sold  in  order to enable a trial in which the  seller,  the distributor,  and, the manufacturer could be  jointly  tried for offences which could be looked upon as parts of a single transaction.  To accept such an argument would be to  import into such a case the need to establish a conspiracy  between the accused manufacturer or distributor, as the case may be, and  the actual vendor or the last seller to  the  consumer. We think that such a result would be obviously incorrect. It  was pointed out by this Court, in Sarjoo Prasad  v.  The State of Uttar Pradesh(1), that mens rea, in the sense of  a guilty  knowledge of adulteration of the food sold,  is  not necessary  to  prove for an offence under Section 7  of  the Act.   Indeed, Section 19(1) specifically rules out  such  a defence  although  S.  19(2)  makes  it  available  in   the

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particular case of the accused who has taken the  precaution of  protecting  himself from what seems otherwise to  be  an absolute liability without proof of guilty knowledge.   Even if we were to widen (2)  A.1-R 1974 SC 2154. 39 the  concept of "mens rea" here to embrace  carelessness  or indifference   as  the  required  states  of  mind  in   the manufacture  or  distribution  or  sale  of  an  adulterated article  of food, as an ingredient of a, legally  punishable offence,  the law obviously and expressly does  not  require parties  to, an offence under the Act to have  a  particular guilty knowledge about the particular item of food found  to be adulterated.  We cannot introduce such a requirement into a  case  simply because several accused  persons  are  being jointly tried.  The law does require proof, for a successful defence,  of  a degree of care and caution revealed  by  the actions  of the seller, distributor, or manufacturer,  which will  be  enough to procure  an  exemption  from  criminal liability for a sale of adulterated article of food  without knowledge  of its actual adulteration.  But, we cannot,  for this  reason, equate such. an offence with one in which  the co-accused  must  necessarily  have a  common  knowledge  or design  to  sell  an article actually known to  them  to  be adulterated.   In other words, a particular state  of  mind, which  could be described as guilty or wrongful, could  not, even if it could be there individually and separately in  a) particular case, provide the connecting link between the co- accused  in  a  trial  for  such  an  offence  in  order  to constitute the same transaction.  The link, if any, has  to be found elsewhere. In our opinion, considering the character of the offence and the   nature   of  the  activities  of   manufacturers   and distributors,  who  generally  deal  in  bulk,  and  of  the ordinary vendor, who sells particular items to the consumer, the common link, which could provide the unity of purpose or design so as to weave their separate acts or omissions  into one  transaction,  has to be their common intention  that  a particular  article,  found adulterated,  should  reach  the consumer as food.  Ignorance of the fact of adulteration  is immaterial.   In order to justify a joint trial  of  accused their common object or intention to sell the article as food is enough.  In such a case of a strict liability created  by statute,   for  safeguarding  public  health,   the   mental connection   between   the  acts  and   omissions   of   the manufacturer, the distributor, and the last vendor would  be provided  simply by the common design or intention  that  an article  of food, found to be adulterated, should reach  and be  used as food by the consumer.  Each person dealing  with such an article has to prove that he has shown due care  and caution  by  taking  prescribed steps  in  order  to  escape criminal liability.  Otherwise, if one may so put it, a mens rea  shared by them is presumed from a  common  carelessness exhibited by them.  Again, a sale at an anterior stage by  a manufacturer or distributor to a vendor and the sale by  the vendor to the actual consumer could be viewed as linked with each other as cause and effect. We  think  that  the activities  of  the  manufacturer,  the distributor   and   the  retail  seller   are   sufficiently connected,  in  such a case of sale of an  article  of  food found  to be adulterated, by a unity of purpose and  design, and, therefore, of a transaction, so as to make their  joint trial  possible in a suitable case.  But, at the same  time, we  think that, where, a joinder of several accused  persons concerned  with  dealing  in different ways  with  the  same

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adulterated article of 10 SC/75-4 40 food  at  different stages is likely to  jeopardise  a  fair trial,  a  separate trial ought to be ordered.   It  is  not proper  to  acquit or discharge an accused  person  on  this ground  alone.  The ordering of a separate trial, in a  case where  prejudice  to  an  accused  from  a  joint  trial  is apprehended, is enough.  Indeed, we can go even further  and say  that,  ordinarily, they ought to be  separately  tried. But, a joint trial of such accused persons is not  ab-initio illegal.  It can take place in suitable cases. We may point out that, in V. N. Kamdar & Anr., v.  Municipal Corporation of Delhi(1), this Court held (at p. 161) :               "The normal rule under the Criminal  Procedure               Code  is to try each accused  separately  when               the  offence committed by him is distinct  and               separate.   The provisions of ss. 233  to  239               would   indicate  that  joint  trial  is   the               exception.   In  State of  Andhra  Pradesh  v.               Cheemalapati Ganeswara Rao & Anr., [1964]  (3)               SCR  297, 324) this Court said  that  separate               trial  is the normal rule, and joint trial  is               an  exception when the accused have               committed separate offences.  Section 5(2)  of               the Criminal Procedure Code provides that  the               provisions of that Code will apply to trial of               an offence under any law other than the Indian               Penal  Code subject to any enactment  for  the               time  being in force regulating the manner  or               place of investigating, inquiring into, trying               or otherwise dealing with such offence."               In   Kadiri  Kunhahammad  v.  The   State   of               Madras(2), this Court said (at p. 663)               "Section  239(d) authorises a joint  trial  of               persons   accused   of   different    offences               committed   in   the  course   of   the   same               transaction; and there can be no doubt that in               deciding  the  question whether  or  not  more               persons  than one can be tried together  under               the  said section, the criminal Court  has  to               consider the nature of the accusation made  by               the prosecution.  It would be unreasonable  to               suggest that though the accusation made by the               prosecution  would  justify a joint  trial  of               more persons than one, the validity of such  a               trial  could be effectively challenged if  the               said  accusation is not established  according               to  law.   It  is true that,  in  framing  the               charge  against  more  persons  than  one  and               directing  their  joint trial,  Courts  should               carefully  examine the nature of  the  accusa-               tion;  but  if they are satisfied  that  prima               facie  the accusation made shows that  several               persons are charged of different offences  and               that  the said offences prima facie appear  to               have been committed in the course of the  same               transaction, their joint trial can and  should               be ordered." We  do  not interpret Kadiri Kunhahammad’s case  (supra)  to mean that a joint trial of accused persons is obligatory  in every  case where a catenation of facts, said to  constitute separate but related or cognate (1)  [1974] (1) S.C.R. 157  161. (2)  A.I.R. 1960 SC 661 @663.

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                            41 offences,  can be viewed as one transaction.   The  question whether there should be a joint or separate trial in a  case should  be  determined  on the facts of that  case  and  the requirements of justice there.  As pointed out by this Court in  V.  N. Kamdar & Anr. v. Municipal Corporation  of  Delhi (supra)  the special provisions of Section 20A are only  en- abling  and do not give rise to a mandatory duty.   They  do not bar either a separatea  joint trial of  an  accused person if other conditions are satisfied.Similarly,  Section 239(d)  of  the  Criminal Procedure Code  of  1898,which  is reproduced as Section 223(d) of the Criminal Procedure  Code of 1973, is only an enabling section.  No doubt it has to be shewn  that  the requirements of Section  239(d)  have  been fulfilled whenever this provision is sought to be utilised. The  result  is that we think that, in a  suitable  case,  a vendor,  a  distributor, and a manufacturer could  be  tried together  provided  the, allegations made before  the  Court show   that  there  are  connecting  links   between   their activities  so as to constitute the same  transaction.   The connecting links, in a case such as the one before us, could be provided by: firstly, the fact that a sale at an anterior stage  could be viewed as the cause of the subsequent  sale; secondly,  the  allegation that each of the  accused  parted with the article of food when it was in an adulterated state ; and, thirdly, by the common object of the manufacturer the distributor,  and the vendor, that the article should  reach the  consumer  to  be  used as food.   The  third  and  last mentioned  link seems decisive and must tilt the balance  in favour  of  legality  of  a  joint  trial  of  the   parties concerned.   But,  we are also conscious of  the  fact  that Courts cannot ignore broader requirements of justice. In the case before us, all that the complaint states is that the appellant firm had sold the offending ghee to the vendor Laxmi Narain a day earlier.  The assertion that it was in an adulterated state at that time was wanting in the complaint. Although, the charge framed, set out above, states that  the sample of ghee sold by Laxmi Narain, to whom it was sold  by the appellant, was found in an adulterated state, yet, it is not  stated  there that it was in that very state  when  the appellant  bad  sold it to Laxmi Narain.  It  is  true  that Laxmi Narain successfully pleaded a warranty under which  he obtained the ghee from the appellant firm.  It is left to be infester  from these facts that the appellant also sold  the ghee  while  it was in an adulterated state.   It  could  be urged that this would follow from the successful defence  of Laxmi   Narain.   The  defects  in  the  charge  would   not invalidate the trial.  But, we think that a continuation  of such  an old prosecution is likely to handicap  the  accused Jagdish  Chander in his defence.  Even if we were to  assume that the charge, as framed, implies the allegation that  the ghee  was adulterated also when the distributor sold  it  to the vendor, an enquiry in 1975 into the actual state of  the ghee sold by the distributor to the vendor in 1967 would  be obviously  difficult.   The  appellant,  content  with   the initial  acquittal, had probably rested on his oars and  not taken  the  trouble  to challenge  the  correctness  of  the analyst’s  report.   And,  even if  that  report  was  quite correct  it may not establish the state in which  the  small quantity  of  ghee  analysed was when it  was  sold  by  the distributor.   It  would  impose  undue  hardship on   the distributor  to prove, at this distance of time, the  actual state                              42 of the small quantity of ghee analysed which must have  been

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a part of the consignment supplied by the distributor who is perhaps   also  relying  on  the   manufacturers   warranty. Although  we hold, in agreement with the Delhi  High  Court, that the joint trial of the appellant with Laxmi Narain  was not  illegal, we think that, on the special facts  ,of  this case,  the  interests of justice will be  better  served  by quashing such a stale charge because the appellant’s defence will suffer if he is ’called upon to answer it now. Consequently,  we allow these appeals to the extent that  we quash the charge against the appellant and order that he  be discharged. ALAGIRISWAMI, J.-I agree with my learned brothers as regards the final conclusions arrived at and the order proposed, But I  think  it is necessary to say a few words  on  the  first question  which was decided by the Full Bench of  the  Delhi High Court.  The question is as follows               "(i) Whether a joint trial of the vendor,  the               distributor and the manufacturer for  offences               under the Prevention of Food Adulteration Act,               1954 is illegal ? It  is unnecessary to set out the facts which are  found  in the  judgment of my learned brothers.  The Full Bench  found that  the  joint trial of the vendor Laxmi Narain  with  the warrantor  Jagdish  Chander (the appellant  before  us)  was permissible as-the actions of both these accused form  parts of  the same transaction, that there was a unity of  purpose between the manufacturer, the distributor and the vendor  of the  adulterated  articles  of food sold  furnished  by  the purpose  of  all of them to sell, that an  indication  of  a unity of purpose was sufficient to establish the sameness of a  transaction  as  contemplated by s. 239  of  the  Crminal Procedure Code.  The charge framed against the appellant  is as follows               "That you, on or about the 22nd day of  August               1967 at 12 noon a sample of ghee was purchased               by  Shri V. P. Anand F.I. from accused  No.  1               Lakshmi  Narain and the said ghee was sold  by               you  to accused No. 1 Lakshmi Narain on  21-8-               1967  and the said sample of ghee in  analysis               was  found to be adulterated and  hereby  com-               mitted  an  offence punishable  under  section               7/16  of the Prevention of  Food  Adulteration               Act of 1954 and within my cognizance." It  would be noticed that while the charge states  that  the sample of ghee purchased from Lakshmi Narain was found to be adulterated,  there is no allegation that the ghee  sold  by the  appellant to Lakshmi Narain was adulterated.  While  it may  be  readily conceded that the common object  or  common intention or unity of purpose between the manufacturer,  the distributor  and the vendor was to sell the article of  food sold,  it  is not said that it was to sell  the  adulterated article of food.  It is true that it is now well established that  for  establishing an offence under the  Prevention  of Food Adulteration Act it is not necessary to establish  mens rea i.e. criminal intention either on the 43 part  of  the manufacturer or distributor or  vendor.   Even knowledge  on  the  pan of all of them  that  the  food  was adulterated is not necessary.  Ignorance on the part of  any one of them that the food was adulterated would not  absolve them  of  liability.   But  before  the  manufacturer,   the distributor and the vendor could be tried jointly it must be alleged that the manufactured-food was adulterated when  the manufacturer  passed  it on to the distributor and,  it  was also  adulterated when the distributor passed it on  to  the

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vendor  and that it was adulterated when the vendor sold  it to  the  consumer.  It is not necessary to  prove  that  the article of food was adulterated at all the three stages  for the  purpose  of deciding the validity of the  charge  being framed against all the three of them provided the  necessary allegation  is there.  At that stage :the question of  proof does  not  come in.  The validity of the charge  has  to  be decided  on the, facts put forward as the prosecution  case. If  it is not, established against any one of them that  the article  of, food manufactured, distributed or sold  by  him was  adulterated that person will be acquitted, not  because the charge was not valid or was defective but because  there was  no proof to substantiate the charge.  But without  that allegation there cannot be said to be a unity of purpose  or common object or common intention on the part of an of  them to  manufacture,  distribute or sell the  adulterated  food. The  manufacture, distribution and sale of adulterated  ghee would  be  the  same  transaction if  it  was  found  to  be adulterated  at  all the three stages.   Otherwise  it  only means that they were all same transaction only in the  sense that the common object of all of them is the selling of  the ghee.   Selling  ghee  by itself is  not  an  offence;  only selling  adulterated  ghee is an offence.   The  Delhi  High Court is not therefore correct in saying that the action  of both the accused form part of the same transaction and there was  unity of purpose of the manufacturer,  the  distributor and  the vendor furnished by the purpose of all of  them  to sell  and therefore it was the same transaction and  all  of them  could  be tried together.  It would not  be  the  same transaction  in  so  far as  selling  adulterated  ghee  was concerned  unless the ghee was in fact adulterate  at  every one  of these stages. If the common purpose all of them  was to sell ghee joint trial ofall of them would not be valid but if it was to sell adulterated gheeit    would       be valid,If it is alleged that at every one of the stages, that is  of  manufacture,distribution  and  sale  the  ghee   was adulterated  then it would be the same transaction and  they could all be jointly tried.  In the absence of an allegation that  the ghee distributed by the appellant to  the  ,Vendor Lakshmi Narain was adulterated both of them cannot be  tried together’ The manufacturer could also have been tried  along with   them  only  if  it  is  alleged  that  the  ghee   he manufactured  was  adulterated.   In  the  absence  of  this ’allegation there cannot be a joint trial.  At the. stage of considering the validity of the charge it is the  allegation that is material; at the stage of , considering the guilt of the  parties’ it is proof that is material.  In the  present case  it may be that the appellant could be  prosecuted  for giving a false warranty because he had issued a warranty and the  food sold by the vendor to whom he issued the  warranty was found to be adulterated. Appeals allowed.  P.B.R. 44