M/S. Murlidhar
Shyamlal & Anr Vs. State of Assam [1996] INSC 94 (18
January 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 AIR 1429 JT 1996 (1) 664 1996 SCALE (1)631
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Though
notice was served on the States none appeared and pursuant to another notice
given to the State counsel, she has circulated a letter stating that she did
not get any instructions from the State and that, therefore, she cannot proceed
with the matter. We have heard the counsel for the appellants.
The
appellant was charged for an offence under Section 7 read with Section 16 of
the Prevention of Food Adulteration Act, 1954 (for short, 'the Act') for
adulteration of mustard oil. The offence had taken place on 1.2.1984.
Consequently, if the offence is proved, the sentence would be of mandatory
character. He was acquitted by the trial court but on appeal, the High Court
set aside the acquittal and the appellants were convicted and sentenced to
undergo imprisonment for a term of six months and also to pay a fine of Rs.
1000/-- and in default, he was to undergo further imprisonment for a period of
one month. Both sentences were directed to run concurrently.
The
learned Magistrate considering Section 19(2)) read with Rule 12A of the Food
Adulteration Rules, 1956 (for short, 'the Rules') found that since the
appellant was armed with a warranty as envisaged thereunder, he had not
committed the offence of adulteration of food. Accordingly, he acquitted the
appellant. On a composite appeal filed in the High Court, the learned single
Judge in Government Criminal Appeal No.62 of 1985 set aside the acquittal and
convicted the appellants for the aforesaid offence. Thus this appeal by special
leave.
Learned
counsel for the appellants relying upon Section 19(2) and Rule 12-A of the
Rules contended that on the appellant proving that he purchased article of food
from a manufacturer or a dealer with a warranty as envisaged in Rule 12-A, he
is absolved of the offence and the only remedy for the prosecution is to
proceed against the manufacturer or dealer or distributor etc.
Section
92(2) of the Act reads thus:
"19.(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
warrantee 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.
Rule
12-A of the Rules reads thus:
"12-A.
Warranty. - Every manufacturer distributor or dealer selling an article of food
to a vendor shall give either separately or in the bill, cash memo or label, a
warranty in Form VI-A," The warranty shall be in the prescribed form VI-A
which reads thus:
FORM
VI-A (See Rule 12-A) Form of Warranty Invoice No. ...........
From
..........
To
............ Place .............
Date
..............
--------------------------------------------------------
Date of Nature and quality Batch No. Quantity Price Sale of article/Branch or
Name, if any Code No.
---------------------------------------------------------
1 2 3 4 5 --------------------------------------------------------- I/We hereby
certify that Food/foods mentioned in this invoice is/are warranted to be of the
nature and quality which it/these purports/purport to be.
Signature
of manufacturer/ distributor/dealer Name and Address of Manufacturer/Packer in
case of packed article Licence No. ..........
(wherever
applicable) Thus it would be clear that with a view to absolve the appellant of
the liability for being prosecuted, the vendor of the article of the food to
the Food lnspector, has to prove that he purchased the article of food with a
written warranty in the prescribed form VI-A in terms of Rule 12-A.
It is
contended that the distributor had come into the witness box and stated that
the article was of the same quality as was sold by him. The learned counsel has
relied upon the memo of the sample taken by the Food Inspector which contains
thus:
"450
gms of Mustard oil from a packed tin containing the same weighing 16 kg. nett
with a printed label on it "New Rice & Oil Mill, Raha, pure mustard
oil (Biswanath Brand) nett wt. 16 Kg." stored for sale in the said
premises." It would only indicate that the packed tin containing the same
weighing 16 Kg. (nett) with a printed label on it "New Rice & Oil
Mill, Raha, pure mustard oil (Biswanath Brand) nett st.16 Kg." stored for
sale in the said premisss.
Form
this, it is contended that the appellant had the warranty and that, therefore,
by operation of Section 19(2) read with Rule 12-A, the appellant is absolved of
his liability to be prosecuted for sale of the adulterated article of food, We
are afraid that we cannot accept the contention. In view of the above warranty
as envisaged under Form VI-A, there must-be specific mention therein by the
dealer or distributor or manufacturer, that the article of food sold was in the
same nature and quality of the, article of food, as the case may be. Then only
he would get acquitted, though the article of food was found adulterated.
It
would be then open to the prosecution to proceed against the manufacturers,
dealer or distributor.
It is
then contended that cash memo contains such a recital and he has taken us
through the evidence stated by the witness. From the evidence, it is not clear
that it contained a warranty as prescribed in Form VI-A. Counsel seeks to place
reliance on the judgment of this Court in K. Ranganatha Reddiar vs. The State
of Kerela [(1969) 2 SCC 457 at 459]. In that
case, since the cash memo was produced as a part of the record and on
consideration of recitals, this Court had considered that when a cash memo was
given by the dealer to the accused, it must be construed in the language
employed therein and the benefit of doubt was given. In this case, we cannot
make any guess as to with would be the nature of the language used in the cash
memo which was not filed in the absence of any specific recital therein. As
seen in the recital of the Panchanama, there is no mention thereof as envisaged
in Form VI-A. Under these circumstances, we are constrained to confirm the
conviction and sentence minimum period of six months and is a mandatory after
the Amendment Act, 1976, we cannot interfere with the sentence.
The
appeal is accordingly dismissed.
Back
Pages: 1 2
