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PETITIONER: M/S.  BABURALLY SARDAR AND ANOTHER

       Vs.

RESPONDENT: CORPORATION OF CALCUTTA

DATE OF JUDGMENT: 29/11/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. BACHAWAT, R.S. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1569            1966 SCR  (2) 815  CITATOR INFO :  D          1970 SC 520  (9)

ACT: Prevention  of Food Adulteration Act, 1954 (37 of 1954),  s. 19(2)  and proviso to Rule 12-A-Description of  contents  on label  of tin--Contents described as "Full  cream  sweetened condensed  milk"  and  "scientifically  preserved  pure  and produced from healthy cow’s milk"Description whether amounts to warranty under the Act.

HEADNOTE: Samples  of  a certain brand of tinned condensed  milk  were taken from the appellants’ shop by the Food Inspector.   The Public  Analyst found the fat content of the condensed  milk below  standard.  When prosecuted under s. 16(1) (a) (i)  of the Prevention of Food Adulteration Act, 1954 the appellants took  a plea based on s. 19(2) of the Act and  claimed  that the  label on the tins was a warranty within the meaning  of that  section as well as of the proviso to Rule  12-A.   The label  on  the  tins  described  the  milk  as  "Full  cream sweetened condensed milk made on formula of Holland product’ and  inter  alia  said  :  "The  contents  of  the  tin  are scientifically  preserved,  pure and produced  from  healthy cow’s  milk." The trial Magistrate accepted the  appellants’ plea and acquitted them but on appeal by the State the  High Court  convicted  them.  They appealed to  this  Court  with certificate. HELD  : (i) Defence under s. 19(2) of the Act was  available to  the appellants provided they showed in the first  place, that  what  was stored by them for sale  to  the  purchasers demanding  condensed  milk was in fact milk which  had  been concentrated  from full cream milk so as to conform  to  the standard of quality given in A 11.07 of Appendix B. For,  it would  be  milk  which  satisfies  the  standard  prescribed therein which can be regarded as ’condensed milk’ under  the Act.   Since however the milk stored by the  appellants  was found to be below standard it could not be regarded as  ’the same  in nature, substance and quality as that  demanded  by the  purchaser’.   Nor again had the appellants  obtained  a warranty  in the prescribed form. Thus the  requirements  of s.19 (2) (i) were not satisfied. [819 B-C]

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(ii) No doubt, under the proviso to Rule 12-A no warranty in the prescribed farm is necessary if the label on the article of  food or cash memo delivered by the trader to the  vendor in  respect of that article contains a  warranty  certifying that the food contained in the container or mentioned in the cash  memo is the same in nature, substance and  quality  as demanded  by the vendor.  But the labels on the tins  stared by the appellants contained no warranty of the kind referred to  in  the  proviso.   The labels  were  not  in  the  form prescribed under r. 42B(b) and it was not possible from  the matter printed thereon to ascertain by reference to standard tables the quantity of milk solids and fat from the quantity of  milk condensed and from the quantity of  condensed  milk contained in the tin. [819 D-820 D] (iii)The  words "Full cream" on the tin did not satisfy  the requirements  of the law either.  ’Full cream’  has  nowhere been  defined in the Act or the rules.  Without knowing  the quantity of ’full cream’ which 816 was  condensed  in  the milk contained in each  tin  it  was impossible even to calculate the quantity of milk solids and fat  in  each  tin.   The  label  therefore  was  of  little assistance to the appellants. [820 D-E] Similarly the cash memos carried no warranty whatsoever. (iv) When a vendor accepts from the trader tins purported to be  of condensed milk hearing a label of the above  kind  he cannot  be said to have "had no reason to believe"  that  it was  not condensed milk of the prescribed nature,  substance and quality.  It may be that the appellants sold the tins in the same state as they purchased them.  But this fact was by itself not sufficient to absolve them. [820 F] Per Bachawat, J-The defence under s. 19(2) of the Act  could not  succeed  as the appellants failed to  prove  that  they purchased  the articles of food with a written  warranty  in the prescribed form.  The label on the tin container gave  a description  of  the article of food but it did not  give  a warranty  certifying that the food was the same  in  nature, substance  and  quality as demanded by the vendor.   In  the absence  of  such a warranty. the appellants had  failed  to establish the defence under s.     19(2)  read with r.  12-A and Form VI-A. [821 A-B.]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 177  of 1963. Appeal from the judgment and order dated May 14, 1963 of the Calcutta High Court in Criminal Appeal No. 380 of 1962. S.   C. Das Gupta and Sukumar Ghose, for appellants. C.   K. Daphtary, Attorney-General, A. N. Sinha and P. K. Mukherjee, for the respondent. The  Judgment  of MUDHOLKAR and SATYANARAYANA RAJU  JJ.  was delivered  by MUDHOLKAR J. BACHAWAT J. delivered a  separate Judgment. Mudholkar, J. This is an appeal by certificate from a  judg- ment  of  the  High  Court of  Calcutta  setting  aside  the acquittal of M/s.  Baburally Sardar of Steward Hogg  Market, Calcutta, appellant no.  1 and of Abdul Razzak, a partner of that  firm, appellant no. 2, in respect of an offence  under s.  16  (1) (a) (i) of the Prevention of  Food  Adulteration Act,  1954 read with S. 7(1) of that act.  The  facts  which are  not  in dispute are briefly these : On June 1,  1960  a Food  Inspector of the Corporation of Calcutta  visited  the shop  of the appellants.  At that time Abdul Razzak  was  in

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charge. He took samples of Comela Brand condensed milk  from the shop, one of which was sent to the Public Analyst.  Upon an analysis made by the Public Analyst the milk fat  content of  the  condensed milk was found to be 3.4% which  did  not conform  to the prescribed standard in respect of  condensed milk.   A  complaint was thereupon lodged against  the  firm before   the  Municipal  Magistrate  and  Additional   Chief Presidency Magistrate, 817 Calcutta.  Apart from the firm five other persons, including Abdul’  Razzak were also named as accused persons.   One  of the accused persons, Mohd.  Yasin did not appear but it  was represented  to the learned Magistrate that the  person  was not mentally fit.  Thereupon the counsel for the Corporation gave  him up.  The other accused persons pleaded not  guilty and  were eventually acquitted by the  Magistrate.   Against that  order  an appeal was preferred before the  High  Court under  s. 417 of the Code of Criminal Procedure.   The  High Court,   however,  allowed  the  appeal  only  against   the appellants  but dismissed it against the  remaining  accused persons. The defence of the appellants was based upon s. 19(2) of the Act  and was briefly this : The tins of condensed milk  were purchased  by  the  firm  on May  3,  1960  from  Messrs  S. Choudhury Brothers under a document of sale Ex.  A. At  that time the firm had demanded a warranty from the traders, that is, Messrs.  Choudhury Brothers, but they did not furnish  a written  guarantee  on the ground that a certificate  and  a warranty had been given on each tin of condensed milk.   The appellants  further pleaded that the tins were in  the  same condition  in which they were when they were purchased  from Messrs  Choudhury  Brothers and that they had no  reason  to believe  that  there  was any alteration  in  their  nature, substance or quality subsequent to the purchase of the tins. It  may be mentioned that an attempt was made to secure  the appearance  of S. Choudhury of Messrs.  Choudhury  Brothers, but it failed because he could not be traced at the  address given in the cash memo. Section 16(1) (a) (i) of the Act, amongst other things, pro- vides  that  if  any person, whether by himself  or  by  any person on his behalf stores or sells any article of food  in contravention  of any provisions of the Act or of the  rules made  thereunder  he  shall ’be  punishable  for  the  first offence with imprisonment for a term which may extend to one year and/or with fine which may extend to Rs. 2000 or  both. Section  2(i) defines the word "adulterated".  According  to the  definition  an article of food shall be  deemed  to  be adulterated in various circumstances, one of which is  where the  quality or purity of the article falls below the  pres- cribed  standard.  In the Act "prescribed" means  prescribed by  the  rules.  Rule 5 of the Rules framed by  the  Central Government  under  s.  23(1) of the Act read  with  s.  4(2) thereof runs thus               "Standards of quality of the various  articles               of food specified in Appendix B to these rules               as defined in that appendix." 818 The definition of standard of quality for condensed milk  is give in A. 1 1.07 of Appendix B and runs thus :               "Condensed milk means milk which has been con-               centrated  from full cream milk by removal  of               part of its water with or without the addition               of  sugar, and includes the  article  commonly               known  as  ’evaporated  milk’  but  does   not               include  the article commonly known as  ’dried

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             milk’ or ’milk powder’.  It shall be free from               preservatives other than sugar and contain  at               least  31 per cent of milk solids of which  at               least 9 per cent shall be fat." As  already  stated, the Public Analyst found that  the  fat content  of  the condensed milk was only  3.4%  whereas  the minimum prescribed in the Appendix is 9%.  It is, therefore, clear  that the condensed milk stored by the appellants  for sale  was adulterated and, therefore, there was a breach  of the provisions of S. 16(1)(a) (i) of the Act. In view of the provisions of S. 19(1) it was not open to the appellants to contend that they were ignorant of the nature, substance  and quality of the condensed milk sold  by  them. Subsection  (2) of S. 19, however, furnishes a defence to  a vendor ignorant of the nature, substance and quality of food sold  by him provided he satisfies the requirements of  that provision.   Omitting the second proviso thereto,  which  is not relevant in the present case, sub-s. (2) of S. 19  reads thus :               "  (2)  A vendor shall not be deemed  to  have               committed an offence if he proves-(i) that the               article  of food was purchased by him  as  the               same in nature, substance and quality as  that               demanded  by the purchaser and with a  written               warranty  in the prescribed form, if  any,  to               the  effect  that  it  was  of  such   nature,               substance and quality;               (ii)  that he had no reason to believe at  the               time when he sold it that the food was not  of               such nature, substance and quality; and                (iii)that he sold it in the same state as  he               purchased it :               Provided that such a defence shall be open  to               the  vendor  only if he has submitted  to  the               food  inspector or the local authority a  copy               of the warranty with a written notice  stating               that he intends to rely on it and                                    819               specifying the name and address of the  person               from whom he received it, and has also sent  a               like notice of his intention to that person." The  aforesaid  defence  was  available  to  the  appellants provided that they showed, in the first place, that what was stored  by them for sale to purchasers  demanding  condensed milk was in fact milk which had been concentrated from  full cream milk so as to conform to the standard of quality given in  A.  1 1.07 of Appendix B. For, it would  be  milk  which satisfies  the  standard  prescribed therein  which  can  be regarded as ’condensed milk’ under the Act.  Upon  analysis, however,  it  was found that the  so-called  condensed  milk contained  in the samples taken by the Food  Inspector  from the  appellants  was  far inferior to  that  prescribed  for "condensed  milk".  It could, therefore, not be regarded  as "the same in nature, substance and quality as that  demanded by the purchaser".  Nor again, had the appellant obtained  a warranty  in the prescribed form.  Rule 12-A  provides  that every  trader selling an article of food to a  vendor  shall deliver to the vendor a warranty in form 6-A, if required to do  so by the vendor.  No such warranty was demanded by  the appellants, nor given by Messrs.  S. Chaudhury Brothers.  No doubt,  under  the  proviso to  the  aforesaid  sub-rule  no warranty in the prescribed form is necessary if the label on the article of food or cash memo delivered by the trader  to the  vendor in respect of that article contains  a  warranty certifying  that  the  food contained in  the  container  or

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mentioned in the cash memo is the same in nature,  substance and  quality as demanded by the vendor.  Mr. Das  Gupta  for the appellants, says that the labels on the tins satisfy the requirements  of the proviso and faintly suggested that  the cash  memo also satisfies the conditions.  The  contents  of the  label  upon  which reliance is placed  by  him  are  as follows :               "’Comela’-Full Cream sweetened condensed  milk               made on formula of Holland Product.               ’Comela  Brand’’The  contents of the  tin  are               scientifically  preserved, pure  and  produced               from  healthy Cow’s milk.  Comela  full  cream               condensed milk easily digestable and are ideal               food for babies.               Special  care is taken to maintain  freshness-               Prepared by Kwality Diary." This  label contains no warranty of the kind referred to  in the proviso.  Moreover, it is not even in the form given for a label 820 prescribed for "Sweetened condensed milk".  Under r. 42-B(b) the label prescribed is as follows                  CONDENSED FULL CREAM MILK                      (Sweetened)               This tin contains the equivalent of               ...... litres of milk with sugar added. It may be that the inscription on the prescribed label "This tin  contains an equivalent of........ litres of  milk  with sugar  added" was meant to serve the purpose of  a  warranty though it is couched in different language.  For, it may  be possible  to ascertain by reference to standard  tables  the quantity  of milk solids and fat from the quantity  of  milk condensed and from the quantity of condensed milk  contained in the tin.  It would not be possible even to do this on the basis  of the particulars given on the labels borne  on  the tins which were taken as samples by the Food Inspector  from the  appellants.   Mr. Das Gupta strongly  relied  upon  the words  "Full  Cream" and said that where condensed  milk  is said to have been obtained from full cream the  requirements of law must be deemed to have been satisfied.  For one thing "Full  cream"  has nowhere been defined in the  Act  or  the rules.   Moreover,  without knowing the  quantity  of  "Full cream" which was condensed in the milk contained in each tin it  is  impossible even to calculate the  quantity  of  milk solids  and  fat in each tin.  The label, therefore,  is  of little  assistance  to  the appellants.   Moreover,  when  a vendor  accepts  from  the trader tins purported  to  be  of condensed  milk  bearing a label of this kind he  cannot  be said  to  have "had no reason to believe" that  it  was  not condensed  milk  of  the prescribed  nature,  substance  and quality.   It  may be that the appellants sold them  in  the same  state  as they purchased them.  But this  fact  is  by itself not sufficient to absolve them.  As for the so-called cash  memo  it is sufficient to point out that all  that  it specifies is : Quantity     Description     Rate      Per      Amount 1          C/C Comela Milk    C 70/-Case    Rs. 70  00 There is not a whisper of any warranty on it. In the circumstances, therefore, the High Court was right in setting aside the acquittal of the appellants and convicting them  of  the offence under S. 1 6 (1) (a) of  the  Act  and sentencing  them to pay fine of Rs. 2,000 each.  The  appeal is without merit and is dismissed. 821 Bachawat, J. The defence under s. 19(2) of the Prevention of

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Food   Adulteration  Act,  1954  cannot  succeed,   as   the appellants failed to prove that they purchased the  articles of food with a written warranty in the prescribed form.  The label on the tin container gave a description of the article of food, but it did not give a warranty certifying that  the food  is  the  same  in nature,  substance  and  quality  as demanded by the vendor.  In the absence of such a  warranty, the appellants have failed to establish the defence under s. 19  (2) read with R. 12 (a) and Form VI-A.  Had  there  been such  a written warranty on the label, the appellants  would have  established the defence.  I agree that the  appeal  be dismissed. Appeal dismissed. 822