V.K. Mehrotra, Actg. C.J.

1. Sohan Lal Ghansham Dass are carrying on the business of manufacture of Attr in the name of Bharat Mata Flour Mills. Thakur Dass, Babu Ram are Commission Agents who distribute the Atta manufactured by Bharat Mata Flour Mills. One Om Prakash son of Tulsi Ram, carrying on business in-the name and style of M/s Tulsi Ram Om Parkash in Bhota in District Hamirpur (Himachal Pradesh), purchased Atta from the manufacturer through the Commission Agent on September 23, 1980.

2. At about 9.00 A.M. Food Inspector Shri T.S. Verma visited the shop of Om Parkash at Bhota on October 15, 1980. The Food Inspector, after disclosing his identity, served Om Parkash with a notice and purchased 600 grams of Atta on payment of Rs. 1.20 paise. The quantity so purchased was divided into three equal parts and placed in three different bottles which were duly corked, leveled and sealed in accordance with the relevant rules. All this happened in the presence of witnesses Piare Lal and Bahadur Singh.

3. One of the samples was sent to the Public Analyst on October 16, 1980. This sample was received on October 20, 1980, and examined by the Public Analyst. The report of the Public Analyst dated November 26, 1980, revealed that the sample was adulterated as forty five living Susries, forty living Sundies along with Forty five dead sundies besides 20 J alas were found present therein. The alcoholic acidity of the sample was 0.264% against the maximum prescribed standard of 0.18% the sample was declared unfit for human consumption. The report was received by the Local Health Authority on December 5, 1980. ...

4. On December 15, 1980, a notice under Section 13(2) of the Prevention of Food Adulteration Act 1954, (for brief, " the") was sent by the Local Health Authority to the retail vendor Om Parkash. On February 5, 19810m Parkash appeared. in Court and obtained bail. An application was made by Om Parkash on April 19, 1982, under Section 20A of thepraying that the manufacturer be also summoned. On July 28, 1982 statement of Nirmal Kumar on behalf of M/s Thakur Dass Babu Ram was recorded in pursuance of the direction dated May, 10 1982, made by the Court that accused Om Parkash may lead evidence in support of his application under Section 20A on that date. The order sheet of the trial Court shows that on August 9, 1982, the order was that the application under Section 20A was not pressed in view of the statement of Nirmal Kumar and that fresh application ray be filed against the firm. The case was directed to come up on August 30, 1982. On that date an application was made by accused Om Parkash praying that the distributor M/s Thakur Dass Babu Ram be also summoned as an accused in the case because he had purchased the Atta manufactured by Bharat Mata Flour Mills through Thakur Dass Babu Ram. The firm was made a party by an order of the Court on September 8 1982. On February 7, 1983, firm Thakur Dass Babu Ram made an application that the manufacturer represented by M/s Sohan Lal Ghansham Dass be also made a party. The Court directed accordingly the same day.

5. On December 5, 1983, after hearing parties, the learned Magistrate passed a detailed order. He concluded that charge under Section 16(1)(a)(j) read with Section 7 of thewas "groundless against accused Thakur Dass Babu Ram and Sohan Lal Ghansham who are discharged". The learned Magistrate further held that there were reasonable grounds to proceed against accused Om Parkash for offences punishable under the aforesaid provision. He framed a charge against Om Parkash and after recording evidence and concluding the trial convicted him by an order of April 6, 1985.

6. The order of conviction and the sentence awarded to him was assailed by Om Parkash in Criminal Appeal No. 14 of 1985. This appeal was disposed of by the learned Sessions Judge, Hamirpur, by judgment, and order of March 12, 1987. The learned Judge felt that the order of discharge passed by the learned Magistrate in respect of Thakur Dass Babu Ram and Sohan Lal Ghansham Dass was illegal. He, therefore, set aside the conviction of Appellant Om Parkash and directed the case to go back to the trial court which was to frame charge against both of them and thereafter proceed and decide the case in accordance With law. It is this order which is under challenge in the present petition under Section 482 Code of Criminal Procedure read with Section 397 Code of Criminal Procedure filed by Thakur Dass Babu Ram as applicant No. 1 and Sohan Lal Ghansham Dass as applicant No. 2.

7. The learned Sessions Judge has taken the view that the order of discharge passed by the trial Magistrate in respect of the commission agent and manufacturer was not justified. To quote his observations:

....There is no dispute that the Atta had been Supplied by the accused/Respondents to the Appellant [Om Parkash] on 23-9-1980 and as per statement of the Food Inspector, the sample was taken from sealed bag containing 10 kg of Atta. The said sealed bag was bearing name of the manufacturer. The question whether such Atta was not properly stored or was not sold in the same state in which it was purchased, at this stage, stands proved from the testimony of Food Inspector who has said that sealed bag was Lying at the counter where the accused/Appellant was selling his articles...........The Food Inspector has farther clearly stated that the bag of Atta from which the sample was purchased was dry which at this stage is sufficient to show that the Appellant had properly stored Atta and as such the bag was dry...............In these circumstances, the trial Court has wrongly discharged the manufacturer and Commission Agents as he (it) appreciated the prosecution evidence with a view to determine that the accused Respondents were liable to be convicted if the evidence remains unrequited........Such type of appreciation was not required at the stage of framing of charge....

8. The submission of Shri K.D. Sood, appearing on behalf of the manufacturer and the commission agent, is that the order of discharge passed by the trial Magistrate had, admittedly, not been assailed at the appropriate stage by filing a revision against it. The Sessions Judge was not competent, therefore, to set it aside in the appeal against his conviction filed by the vendor Om Parkash. The further submission was that the power under Section 20A of thecould not be exercised by the appellate court even if it felt that there was, prima facie, a charge made out against the manufacturer and the commission agent.

Section 20A is in the following terms:

20A. Power of court to imp lead manufacturer etc.-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 with that offence, then the Court may, notwithstanding anything contained in Sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20

9. Section 20, interlaid, provides for institution of a prosecution with the written consent of a person authorized by a general or special order by the Central or the State Government. Section 319(3) of the Code of Criminal Procedure provides that:

any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

10. Section 20A was introduced in the Prevention of Food Adulteration Act, 1954, by Parliament Act No. 49 of 1964 with effect from March 1, 1965. The provision was introduced on the basis of the Report of the Joint Committee on the Prevention of Food Adulteration (Amendment) Bill, 1963. In paragraph 23 of this Report dated September 4, 1964, it had been said that:

It has been brought to the notice of the Committee that for want of a provision enabling the court, during the trial of an offence against the vendor of an article of food, to impale the manufacturer, distributor or dealer with respect to such article of food, many manufacturers, distributors and dealers in such article go scot-free.

In order to have an effective check at all levels, the Committee consider necessary to have a provision to the effect that, if, during the trial of any offence 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 the manufacturer, distributor or dealer is also involved in the offence, the court may proceed against the manufacturer, distributor or dealer also.

11. In V.N. Kamdar and Anr. v. Municipal Corporation Delhi : A.I.R. 1973 S.C. 2246), the Supreme Court said (in paragraph 10 of the Report) that:

....The real purpose of enacting Section 20A is to avoid, as far as possible, conflicting findings. If, in the prosecution instituted against the vendor, it is found that the vendor has sold the article of food in the same state as he purchased it and that while it was in his possession it was properly stored, and the vendor is acquitted, it would look rather ridiculous, if in the prosecution against the manufacturer, distributor or dealer, it is found on the evidence that he did not give a false warranty, but that the article was not stored properly while it was in the possession of the vendor or that he did not sell the article in the same state as he purchased it. This being so, the object of the legislature in enacting the section will be frustrated if a Magistrate were to exercise his discretion improperly by failing to imp lead the manufacturer, distributor or dealer under Section 20A in a case where he should be impleaded....

12. Later, in Bhagwan Dass Jagdish Chander v. Delhi Administration and Anr. (: A.I.R. 1975 SC 1309) , the Supreme Court said (in paragraph 13 of the Report) that:

....A reason for Section 20A seems to be that the prosecution of a person imp leaded as an accused under Section 20A in the course of a trial does not require a separate sanction. Section 20A itself lies down that where the Court trying the offence is itself satisfied that a "manufacture, distributor or dealer is also 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 jd provisions do not take away or derogate from the effect of the ordinary provisions on the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old Sections 233 - 239 of Code of Criminal Procedure.

13. It is clear from the Report of the Committee and the observations of the Supreme Court in these cases that avoidance of multiplicity of proceedings, speedy trial and determination of the liability, if any, of the manufacturer and/or distributor of the article of food, along with that of the vendor in respect of the adulterated food article, are the basic objects with which Section 20A was brought on the statute book. Such being the object of the introduction of this provision it is difficult to appreciate the submission that where the trial Magistrate either exercises his discretion improperly by failing to impaled manufacturer, distributor or dealer under Section 20A in a case where he should be imp leaded or, after having imp leaded him, improperly discharges him, it should not be open to the appellate court to correct that error.

14. The powers to imp lead the manufacturer etc. under Section 20A can be exercised during the trial of an offence under the. The power can, therefore, not be exercised, in the first instance, after the trial has come to a conclusion. The observations of this Court in Nutrine Confectionery Co. Ltd. v. State of Himachal Pradesh and another, (1979 All India Prevention of Food Adulteration Journal, 1) that:

....the Court trying an offence under the alleged to have been committed by any person can proceed against manufacturer, distributor or dealer if the court is satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is concerned with the offence. But this power has got to be exercised or invoked only during the trial of the person who is alleged to have committed the offence under the and not thereafter......

are trite. They find support from the observations of the Supreme Court in Bhagwan DassJagdish Chander. The clear intendment of these observations is that the manufacturer, distributor or dealer cannot be imp leaded by the Court, in the first instance, after it has either acquitted or discharged a person like a vendor against whom proceedings are pending before it. These observations can, however, not be stretched to mean that where power has actually been exercised under Section 20A by the trial Magistrate during the trial of offences under the, the correctness of the exercise of that power cannot be gone into by the appellate court when it is hearing an appeal against the decision of the trial Magistrate.

15. An appeal against an order of conviction or acquittal recorded by the trial Magistrate under the is governed by the provisions of the Code of Criminal Procedure. Section 4 of the Code provides that all offences under the Indian Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code and further that "all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner, place of investigating, inquiring into, trying or otherwise dealing with such offences". The Prevention of Food Adulteration Act does not provide anything in respect of these matters. Obviously, therefore, the provisions of the Code would govern the trial etc. of offences under that Act.

16. Chapter XIX of the Code which consists of Sections 372 - 394 deals with appeals. Powers of the appellate court are contained in Section 386. The power includes a power to direct retrial. The appellate court also has the power to take further evidence or direct it to be taken. The powers of the appellate court are co-extensive with those of the trial court. The appellate court has power to do that which the lower! Court could and should have done. To borrow the observations of the Supreme Court in Jagat Bahadur v. State of Madhya Pradesh (: A.I.R. 1966 S.C. 945):

...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.

17. The learned Asstt. Advocate General (Shri M.S. Chandel) is plainly right in his submission that, having regard to the object with which Section 20A was brought into existence, the appellate court should be held to have the power of proceeding Under Section 20- A where the exercise of such power by the trial court has been improper. The primary object of the introduction of Section 20- A being avoidance 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, the appellate court should be conceded the power of correcting the error made by the trial court by an improper exercise of discretion under Section 20- A. The provisions of the Prevention of Food Adulteration Act are meant to sub serve 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.

18. The submission of Shri Sood that the limitation upon exercise of powers under Section 20A during the trial connotes a prohibition on any court other than the trial court exercising the power, suggest acceptances of a very narrow view. It overlooks the fact that an appellate court has co-extensive power with the trial court. What the aforesaid phrase means is that after the conclusion of the trial it would not be open to the trial court to exercise the power under Section 20- A in the first instance. Where, as in the present case, the power has actually been exercised by the trial court before the conclusion of the trial but by improper exercise of its discretion the trial Court chooses not to proceed against the manufacturer, distributor etc., the error committed by it is undoubtedly open to correction by the appellate court. The further submission that, inasmuch as, the manufacturer or distributor can be prosecuted by filing a fresh complaint, the exercise of power under Section 20- A should be confined to the trial court alone during the trial, overlooks what the Supreme Court has said about the object with which Section 20- A was brought on the statute book. Acceptance of the submission made by Shri Sood would clearly negate the object with which Section 20A has been brought on the statute book.

19. One would do well to recall what the Supreme Court said in V.N. Kamdar and it is this:

....The real purpose of enacting Section 20A is to avoid, as far as possible, conflicting findings the object of the legislature in enacting the section will be frustrated if a Magistrate were to exercise his discretion improperly by failing to impaled the manufacture, distributor or dealer under Section 20A in a case where he should be imp leaded.

One can also not forget what the Supreme Court said in Mis Bhagwan Dass Jagdish Chander. It said that:

...a reason for Section 20A seems to be that the Prosecution of a person imp leaded as an accused under Section 20- A in the course of a trial does not require a separate sanction and that "such a power enables speedy trial of the really guilty parties.

20. The considerations which weigh with an appellate court for directing retrial of an offence are many. There is, however, preponderance of judicial opinion in favour of the view that retrial should not be ordered where there has been a long delay between the commission of the offence ( and the trial; in consequence of an order of retrial. Where a charge has become stale by lapse of considerable time| and the defence of the accused may suffer on that account, the charge deserves to be quashed (See: Mis Bhagwan Dass Jagdish Chander v. Delhi Administration and Anr. : A.I.R. 1975 S.C. 1309). Where the sword of Damocles keeps hanging over the head of an accused for a very long time in respect of an offence which cannot, by normal standards, be treated to be of any un- usual enormity, he should be permitted to rest in peace without a further trial. This is what was said by this Pradesh and Anr. v. State of H.P. (I.L.R. 1982 H.P. 327). The inordinate delay led the Supreme Court in S. Guin and Ors. v. Grindlays Bank Ltd. (: A.I.R. 1986 S.C. 289) to the view that the proceedings should have been ordered to be dropped rather than retrial being ordered. In Srinivas Pal v. Union Territory of Arunachal Pradesh (: A.I.R. 1988 S.C. 1729) the Supreme Court was dealing with a case where Appellant Pal was accused of an offence under Section 304-A IPC. The accident took place on November 20, 1976, in the jeep which was said to have been driven by Appellant Pal. Delivering its judgment on July 18, 1988, the Supreme Court observed that:

....Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution by the Appellant i.e. 91 years for a trial for rash and negligent driving, is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution..............it is just and fair and in accordance with equity to direct that the trial or prosecution of the Appellant to proceed no further....

21. In the present case the sample of the Atta was taken from the vendor Om Parkash on October 15, 1980. After being summoned under Section 20A and imp leaded as accused persons on September 8, 1982 and February 7, 1983, the distributor and the manufacturer were discharged by an order of December 5, 1983. The appellate court acquitted vendor Om Prakash and directed retrial of the case by an order or March 12, 1987. If the matter goes back to the trial Court, in accordance With the direction made by the Sessions Judge in appeal, and a retrial is held, a period of more than 8 years would have elapsed before the re-commencement of the trial from the date on which the sample of Atta was taken from the vendor. The trial is in respect of a sample of Atta which was purchased by the vendor from the commission agent in September 1980. The statement of the Food Inspector, who was examined as a witness in the case, was recorded on three different occasions. He was cross-examined too. The last examination was on December 6, 1984. On that date, during his cross-examination, he has stated that when he had taken the sample no insects were noticed in the sample. Obviously, this was on October 15,1980. The Analysis of the sample was done subsequently, almost after a month. It is then that this sample was found to be adulterated with some living and dead Sundis, some Susris and Jalas. The sample was also found, after it had been analyzed, to be containing a little more than the prescribed percentage of alcoholic acidity. The retrial may not result in conviction of any of the accused persons for each one of them would be inclined to pass on the liability to the others. Ultimately, both the vendor and the distributor would attribute the fault to the manufacturer. It would not be reasonably possible, after the lapse of over 8 years, for the manufacturer, now, to establish what was the state of the A tta at the time when he had issued it for distribution to the commission agent. It is not the case of the prosecution that the offence said to have been committed by the accused persons is their second or subsequent offence. Normally the maximum sentence of imprisonment with which the accused may be visited, in the event of conviction, would not exceed three to six years.

22. These are some of the considerations which impel me to the view that the order of the learned Sessions Judge, in so far as it directs re-trial of the case, should be set-aside.

23. There was considerable argument at the bar, with reference to a number of decisions of this Court, the Supreme Court and some other High Courts, about the culpability or otherwise of the vendor, distributor and the manufacturer on account of some alleged procedural lapses in the taking and maintenance of the samples as well as the delay in the examination thereof. It is not necessary, in the view that I have taken, to notice those submissions or the decisions. Suffice it to say that while upholding the order of acquittal of Om Parkash I set-aside that part of the order passed by the learned Sessions Judge by which he has directed the impalement of the two applicants (Thakur Dass Bhagwan Dass and Sohan Lai Ghansham Dass) as accused in the case and the direction for the retrial of the case.

24. The present petition shall stand allowed in these terms.