Rajal Das Guru Namal Pamanani Vs. The
State of Maharashtra [1974] INSC 259 (3 December 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) REDDY, P.
JAGANMOHAN KHANNA, HANS RAJ GOSWAMI, P.K.
CITATION: 1975 AIR 189 1975 SCR (2) 886 1975
SCC (3) 375
CITATOR INFO:
RF 1977 SC2182 (2) O 1978 SC 933
(1,6,11,13,16,17) R 1980 SC 126 (1,2,3,5) RF 1980 SC 360 (20A) RF 1981 SC1169
(1,4)
ACT:
Prevention of Food Adulteration Act, 1954,
Section 19(2)- Warranty-Prevention of Food Adulteration Rules, Rule 22-
Quantity of samples prescribed whether mandatory-Non- compliance with the
quantity entitles the accused to be acquitted.
HEADNOTE:
The appellant, a grocer, sold compounded
asafoetida in sealed tins received from a licenced manufacturer. The appellant
stored it properly and sold it in the same slate as he purchased it. The Food
Inspector took sample of 100 gms., instead of 200 gms. as provided by rule 22.
On analysis it was found that alcoholic content was less than the minimum
prescribed and therefore, the compounded asafoetida was adulterated.
The Trial Court acquitted the appellant. On
appeal by the State. the High ,Court convicted the appellant and sentenced him
to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-.
On appeal to this Court the appellant
contended that he was protected by section 19(2) (a) (i) because he purchased
the compounded asafoetida from a duly licensed manufacturer and sold it in the
same state as he purchased it. The appellant contended that the words
"written warranty in the prescribed form" attached only to section 19
(2) (a) (ii) and not s. 19 (2) (a) (i). The appellant also ,contended that
since instead of 200 gms. as required by rule 22 the Food Ins- pector took only
100 gms. as the sample he was entitled to be acquitted.
HELD : (i) It follows from rule 12A that the
manufacturer has to print a label containing a warranty. Warranty is required
by cases covered under section 19(2)(a)(i) and 19(2)(a)(ii). Otherwise
adulterated goods could be sold with impunity. These salutary provisions are
designed for the health of the nation. No laxity should be permitted. [889A- D]
Andhra Pradesh Grain & Seed Merchants' Association etc. etc.
v. Union of India & Anr. [1971] 1 S.C.R.
166. explained.
(ii) The Public Analyst did not have the
quantities mentioned in the rules for analysis. The non-compliance with the
quantity to be supplied caused not only infraction of the provisions but also
injustice. The shortage in quantity for analysis is not permitted by the
statute. The High Court was in error in convicting the appellant on analysis
which was not in compliance with the provisions of the Statute. [889F-H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals Nos. 6 to 9 of 1971.
Appeal by Special Leave from the Judgment
& Order dated 17th December, 1970 of the Bombay High Court in Crl. as Nos.
709, 71 1713 of 1969.
P. H. Parekh, S. Bhandare and Manju Jetley,
for the appellant.
H. R. Khanna and M. N. Shroff, for the
respondent, 887 The Judgment of the Court was delivered by RAY, C.J. These
appeals by special leave turn on the interpretation of section 19(2) of the Prevention
of Food Adulteration Act, 1954 hereinafter referred to, as the Act.
The appellant was acquitted by the Judicial
Magistrate. The High Court at Bombay reversed the acquittal and convicted the
appellant under section 16)1) (a) (ii) of the Act.
Section 16(1) (a) (ii) states that if any
person inter alia sells or distributes any article of food in contravention of
any of the provisions of the Act or of any rule made thereunder he shall, in
addition to the penalty to which he may be liable under the provisions of
section 6, be punishable with imprisonment for a term which shall not be less
than six months but which may extend to six years, and with fin-. which shall
not be less than one thousand rupees.
The appellant was sentenced to suffer
rigorous imprisonment for one year and to pay a fine of Rs. 1000/-.
The appellant is a grocer. He sells
compounded asafoetida.
He purchased compounded asafoetida in scaled
tins from the New India Hing Supplying Company, Bombay. In August, 1967, the
Food Inspector purchased 300 grams of asafoetida for the purpose of analysis.
The Food Inspector made three packets of 100 grams each and sent one of the
packets to the Public Analyst at Poona. The report of the Public Analyst was
that the alcoholic extract content in the asafoetida was 3.77 per cent whereas
5 per cent was the required quantity under the Act. It may be stated that A-04
in Appendix B to the Rules under the Act defines the standard of quality of
asafoetida.
It is stated that compounded asafoetida shall
not contain less than 5 per cent alcoholic extract.
The appellant sold the goods in three
different sizes of tins of 50 grams, 500 grams and 1500 grams. The Food
Inspector purchased six tins of 50 grams each in the month of September, 1967.
Out of these six tins the Food Inspector prepared three packages each package
containing 2 tins. The Food Inspector also purchased 300 grams of compounded
asafoetida breaking open the seal of a tin containing 500 grams. The Food
Inspector made three packages out of the said 300 grams of asafoetida. The Food
Inspector also purchased 300 grams of compounded asafoetida from a tin
containing 1500 grams by breaking open the seal of one of the tins. The Food
Inspector also made three packages out of the said 300 grams. The Food
Inspector sent three packages one from each group to the Public Analyst at
Poona. The report of the Public Analyst was that the alcoholic extract contents
were 3.42, 3.3 and 3.33 per cent respectively.
The defence of the appellant was under
section 19(2) of the Act. Section 19(2) is as follows :- "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 888 (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." The
appellant contended that be was protected by section 19(2) (a) (i) because he
purchased the compounded asafoetida from a duly licensed manufacturer and he
sold in the same state as he purchased it. The contention of the appellant is
that 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 that he
purchased the article of food in a case where a licence is prescribed for the
sale thereof from a duly licensed manufacturer, distributor or dealer. The
appellant contended that the words "with a written Warranty in the
prescribed form" attach only to section 19(2)(a)(ii) and not to section
19(2)(a)(i). He purchased the article from the company who were licensed
manufacturer. Therefore, his contention is that he is not deemed to have
committed any offence.
The Prevention of Food Adulteration Rules
which are referred to as the Central Rules deal in Part IX with conditions for
sale and licence. Rule 50 states that no person shall manufacture, sell, stock,
distribute or exhibit for sale the articles of food mentioned there under
except under a licence. Compounded asafoetida is one of the articles mentioned
therein.
Rule 12A speaks of warranty. Every trader
selling an article of food to a vendor shall, if the vendor so requires,
deliver to the vendor a warranty in form VI-A.
The prescribed 'form VI-A mentions invoice
Number, place, date, names of seller and purchaser. There are also columns of
date of sale, nature and quality of article, quantity and price. At the foot of
the form those words occur :
"I/We hereby certify that food/foods
mentioned in this invoice is/are warranted to be the same in nature, substance
and quality as that demanded by the vendor.
Signature of trader/traders." Rule 12A
contains a proviso that no warranty in such form (meaning form VI-A) shall be
necessary if the label on the article of food or the cash memo delivered by the
trader to the vendor in respect of that article contains a warranty certifying
that the food contained in the package or container or mentioned in the cash
memo is the same in nature, substance and quality as demanded by the vendor.
The Explanation to Rule 12A is that the term
"trader" shall mean an importer, manufacturer, wholesale dealer or an
authorised agent of such importer, manufacturer or wholesale dealer.
889 It follows from these provisions that a
manufacturer has to print a label on the article of food containing a warranty
as contemplated in the Act or the manufacturer has to give a cash memo to the
vendor in respect of that article containing a warranty as mentioned in the Act
and Rules there under.
The reason why a warranty is required in both
the cases contemplated in section 19 (2) (a) (i) and (ii) is that if warranty
were not to be insisted upon by the statute and if a vendor would be permitted
to have a defence merely by stating that the vendor purchased the goods from a
licensed manufacturer, distributor or dealer adulterated or misbranded articles
would be marketed by manufacturers, distributors, dealers as well as purchasers
from them with impunity. That is why a written warranty is enjoined in both the
cases in section 19(2) (a) (i) and (ii). Section 19 (2) (a) of the Act will
provide a defence where a vendor purchases article of food from a licensed
manufacturer, distributor or dealer with a written warranty in the prescribed
form. Again, a vendor shall not be deemed to have committed an offence
pertaining to the sale of any aduterated or misbranded article of food if he
proves that he purchased the article from any manufacturer, distributor or
dealer with a written warranty in the prescribed form.
These salutary provisions are designed for
the health of the nation. Therefore, a warranty is enjoined. No laxity should
be permitted.
Counsel for the appellant relied on the
decision of this Court in Andhra Pradesh Grain & Seed Merchants'
Association etc. etc. V. Union of India & Anr. [1971] 1 S.C.R. 166 and the
observations at page 173 of the Report in support of the proposition that a
written warranty in the prescribed form is required only in the case of
purchase of articles from manufacturer, distributor or dealer as contemplated
in section 19 (2) (a) (ii) of the Act. That is misreading the decision. At page
173 of the Report it is said that a vendor is protected if he has obtained the
article from a licensed manufacturer, distributor or dealer with a warranty.
The appellant also contended that samples
were not taken in accordance with the provisions of the Act and the rules there
under. Rule 22 states that in the case of asafoetida the approximate quantity
to be supplied for analysis is 100 grams and in the case of compounded
asafoetida 200 grams.
The Public Analyst did not have the
quantities mentioned in the Rules for analysis. The appellant rightly contends
that non-compliance with the quantity to be supplied caused not only infraction
of the provisions but also injustice. The quantities mentioned are required for
correct analysis.
Shortage in quantity for analysis is not
permitted by the statute.
It is rather surprising that the High Court
acquitted the manufacturer and convicted the grocer. The grocer's defence was
that in spite of requests the manufacturer did not give a warranty.
The appeals are accepted in view of the fact
that the High Court was not correct in convicting the appellant on analysis
which was not in compliance with the provisions of the statute.
Appeal allowed.
P.H.P.
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