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PETITIONER: RAJAL DAS GURU NAMAL PAMANANI

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT03/12/1974

BENCH: RAY, A.N. (CJ) BENCH: 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

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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]

JUDGMENT: 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

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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  thereunder  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

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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 thereunder. 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 thereunder.   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

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analysis which was not in compliance with the provisions  of the statute. Appeal allowed. P.H.P. L346 Sup.CI/75 890