http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: M/S. MURLIDHAR SHYAMLAL & ANR.

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       18/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1429            JT 1996 (1)   664  1996 SCALE  (1)631

ACT:

HEADNOTE:

JUDGMENT:                       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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.