IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD. WEDNESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Revision Case No.320 of 2008 Between: M/s Vasavi Distributors, D.No.1-1-569/A/1, Golconda X Roads, Hyderabad rep. By its Managing Partner B.Devender. …Petitioner A n d State of A.P rep. By its Public Prosecutor High Court of A.P., Hyderabad and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Revision Case No.320 of 2008 JUDGMENT: This criminal revision case is directed against the order dated 04.04.2007 in Crl.M.P.No.1757 of 2006 in CC No.304 of 2004 on the file of the Judicial Magistrate of I Class, Tadipatri, wherein, the said application filed by the petitioner-A.2 under Section 19(2) of the Food Adulteration Act (for short ‘the Act’) seeking discharge from the prosecution, was dismissed. 2. Heard both sides. Perused the record. 3. The 2nd respondent herein filed a complaint against the petitioner-A.2 and another for the offence under Section16 (1)(a), 7(1) and 2(ia)(m) of the Act. According to the complainant, he visited the shop of A.1 on 29.01.2002 and suspected the food article SWASTIK Gulab Jamoon mix kept for sale in the shop, adulterated and purchased sample of the said food item and sent the same for analysis and public analyst by his report dated 02.03.2002 opined that the sample contains salmonella, a pathogenic organism and is therefore adulterated. After obtaining sanction for prosecution, complaint was filed against the vendor-A.1. The petitioner-A.2 is stated to be distributor, as A.1 disclosed that he purchased the subject food item from A.2 by invoice dated 31.12.2001. 4. The petitioner-A.2 previously filed Crl.P.No.4080 of 2006 under Section 482 Cr.P.C. seeking quash of proceedings against him, but however withdrew the said petition and the same was accordingly dismissed as withdrawn on 28.09.2006. Subsequently, he filed the present application in Crl.M.P.No.1757 of 2006 for discharge under Section 19(2) of the Act. Section 19(2) of the Act in fact does not enable the accused to seek discharge. 5. Section 19 enumerates the defences, which may or may not be allowed in prosecutions under the Act. Sub section (1) of Section 19 declares that 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. Sub section (2) of Section 19 of the Act reads as follows: (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 – 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 iii) 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. 6. The main contention of the petitioner is that he is only a distributor having purchased the subject food item from the manufacturer and without proceeding against the manufacturer he is not liable to be proceeded against. Section 19 (2) affords defences for the vendor only if he proves that he purchased the article of food from the manufacturer, distributor or dealer with a written warranty and the article of food while in his possession properly stored and sold in the same state as he purchased. The petitioner-A.2 is not the vendor, but is admittedly a distributor. That apart, even if he seeks extension of the benefit, which is available to a vendor under Section 19(2) to him as well, still the same can be considered only when he proves that he purchased from the manufacture under a written warranty and article of food in his possession was properly stored and he sold the same in the same state as he purchased. By merely pleading that he is only a distributor, who purchased from a manufacturer and he in turn sold the same to the vendor, the petitioner-A.2 cannot escape from the liability, as it is no defence under section 19(1) for a vendor to say that he was ignorant of the nature, substance or quality of the food sold by him. Whether the petitioner-A.2 has in fact purchased the subject food item from a manufacturer under written warranty and while in his possession the food item was properly stored and the same was sold in the same state are all matters that may be considered only after necessary evidence is adduced during the trial. It is only after the burden cast on the petitioner-A.2 is duly discharged, the question of extending the benefit of the defences contained under Section 19(2) to the petitioner-A.2 falls for consideration. 7. The petitioner-A.2 sought to rely upon the decision in ‘Smt. A.Pavani vs. State of A.P.,[1]’, wherein this Court in a case relating to distributor, quashed the prosecution extending the benefit under Section 19(2) of the Act, on the ground that the accused produced the bill to show that he purchased the food article from the manufacturer or distributor and he sold it in the same state, without manipulating the packet supplied to it and is therefore not liable to be prosecuted. The above decision was rendered in a petition filed under Section 482 Cr.P.C. seeking quashing of proceedings against A.6. The present revision arose after dismissal of the petition filed by the petitioner for discharge. In fact, the petitioner filed an application under section 482 Cr.P.C. previously in Crl.P.No.4080 of 2006 and withdrew the same for the reasons best known to him. Section 20A of the Act enables the Court when satisfied on the evidence that the manufacturer, distributor or dealer is also concerned with that offence, then, the Court may proceed against them. When that is so, the petitioner-A.2 who is a distributor, cannot seek discharge on the ground that he purchased the subject food item from the manufacturer, without impleading the manufacturer he cannot be proceed against. If on evidence, it is found necessary to proceed against the manufacturer also, the Court is certainly empowered to do so by virtue of Section 20A. 8. The petitioner further contends that though the sample was taken in February 2002, the complaint was filed on 14.07.2004 after lapse of 2½ years and thereby the right under Section 13(2) of the Act to seek reanalysis of the sample by the Central Food Laboratory is lost on account of the inordinate delay, which results in decomposition and degeneration of the sample. If the said plea is true, the same would afford valid ground for acquittal but not a ground for discharge. In the circumstances, it is held that the impugned order of the learned Magistrate dismissing the application for discharge does not call for any interference. 9. In the result, the criminal revision case is dismissed. ____________________ G.V.SEETHAPATHY, J Date: 05.08.2009 bss [1] 2006(2) LS 446