Harish Kumar Pahwa vs State of Punjab

Harbans Lal, J.—This is a petition u/s 482, Criminal Procedure Code for quashing the proceedings against Shri Harish Kumar Pahwa Sales Manager, Messrs Oswal Vanaspati and Allied Industries Ludhiana who is being tried along with one Jaswant Singh u/s 7 of the Prevention of Food Adulteration (Amendment) Act, 1975, (hereinafter to be called the Act) in the Court of the Chief Judicial Magistrate, Roopnagar.

According to the allegations in the complaint, filed by the Food Inspector, District Rupar, on 5th November, 1975 he inspected the premises of Shri Jaswant Singh of Messrs Jaswant Singh�Jeet Singh on 21st September 1976 at 4 P.M., situated at New Market Kurali, and found three tins of 4 kilograms each of Vanaspati, Durbar Brand, in his possession for sale 1500 grams of Vanaspati was purchased by the Food Inspector for analysis from the said Jaswant Singh on payment of Rs. 13.78 p. The same was divided into three equal parts and was packed in three dry and clean packets. The certificate of the Public Analyst, Punjab, Chandigarh, attached with the complaint showed that the sample contained red colour produced by Baudouin test, equivalent to 0.5 red units. In para 5 of the complaint it was averred that Shri Jaswant Singh of Messrs Jaswant Singh-Jeet Singh, Sales Manager and Managing Director of Messrs Oswal Vanaspati and Allied Industries, Ludhiana, kept the said articles of food in store and was selling them, and thus was guilty of the offence u/s 7 of the Act. In the complaint it was no were stated that the present petitioner, who is the Sales Manager of Messrs Oswal Vanaspati and Allied Industries, Ludhiana, was the Sales Manager of the manufacturer of the said Vanaspati and that the Vanaspati ghee in question, sample of which was taken had been purchased by Jaswant Singh accused from them. Nor was it stated that the ghee in question was sold to the Food Inspector and was being sold to the public in the same packed condition in which it had been purchased from the manufacturer. Though in the complaint the name of the petitioner was hot specifically mentioned, it appears that the complaint was treated as a joint complaint both against Jaswant Singh accused as well as the present petitioner, the Sales Manager of Messrs Oswal Vanaspati and Allied Industries. Ludhiana, and the present petitioner is also being prosecuted and tried along with the other accused Jaswant Singh, who is not a party in these proceedings before this Court. Relying on V.N. Chokra v. The State (1966) 68 P.L.R. 917, it has been vehemently contended by Mr. Laxmi Grover, the Learned Counsel for the petitioner, that joint complaint against Jaswant Singh as well as the petitioner under the provisions of the Act was not competent and maintainable, and further that no case was made out in any manner against the petitioner from any averment in the complaint. Falshaw, C.J. (as he then was) in 1966 P.L.R. 917 held as under:�

Held, that, there is no justification for the the prosecution of a person, firm or company who is alleged to have supplied goods to a dealer from whom the sample is actually purchased by the Food Inspector in the same trial as the dealer from whom the sample was taken. It appears from section 19(2) of the Prevention of Food Adulteration Act, that the supplier of goods can only be brought into the case in which the dealer is being prosecuted for the actual sale of the adulterated article, when the dealer sets up the defence contemplated in the sub section. The question of prosecuting the supplier who had given a warranty can only arise after the trial of the actual vendor had concluded with a successful defence by him under the provisions of section 19(2) of the Act, and the supplier of the goods to the actual vendor has been heard.

I am in complete agreement with the proposition of law that u/s 19, sub-clause (2) of the Act, defence is available to the accused seller of the article that he had purchased the same in the packed condition from the manufacturer on the basis of a warranty and had sold the same in that very condition, and it is only after the successful decision of the case in favour of the said accused on the basis of the defence taken by him that the question of prosecuting of the manufacturer can arise, so far as the present case is concerned, there is no averment even in the complaint implicating the present petitioner who is at the most a Sales Manager of the manufacturer of the Vanaspati. From the perusal of the complaint it is not even possible to conclude that the Vanaspati ghee in question had been purchased from the manufacturer of which the present petitioner was the Sales Manager and that the said ghee had been purchased from the manufacturer.

The Learned Counsel for the State has not been able to refute this proposition of law.

The Learned Counsel for the petitioner has, also, contended that according to the ratio of the decision by a Division Bench of this Court Municipal Committee Amritsar v. Mehar Singh (1972) 74 P.L.R. 865, the ghee, sample of which was taken and was the subject matter of analysis by the Public Analyst, cannot be held to be adulterated. It is not necessary to go in into the merits of this contention for the purpose of disposal of this petition.

As discussed above, no case is made out against the present petitioner Shri Harish Kumar Pahwa and the proceedings pending against him along with the other accused Shri Jaswant Singh in the Court of the Chief Judicial Magistrate at Roopnagar are thus quashed. However, this order will not stand in the way of the trial of the case against the accused other than the present petitioner.