Bombay High Court
State Of Maharashtra Thr. Shri B.S. ... vs Mohammad Anwar Maji Abdul Sakur Meman on 11 January, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal377.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.377 OF 2006
State of Maharashtra,
through, at the instance of
Shri B.S. Kokate, Food Inspector,
Administration, (M.S.), Gadchiroli. .... APPELLANT
VERSUS
Mohammad Anwar Maji Abudl
Sakur Meman, Aged 41 years,
Vendor of M/s Firoj Kirana Stores,
Vairagad, Tq. Armori, Distt. Gadchiroli. .... RESPONDENT
______________________________________________________________
Smt. S.S. Jachak, Addl.P.P. for the appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, JJ.
DATE OF RESERVING THE JUDGMENT : 05-01-2019
DATE OF PRONOUNCING THE JUDGMENT : 11-01-2019
JUDGMENT :(PER : ROHIT B. DEO, J.) The State is in appeal against the judgment and order dated 05-7-2005 in Regular Criminal Case 26/1993 rendered by the Chief Judicial Magistrate, Gadchiroli, by and under which the respondent is acquitted of offence punishable under Section 16(1)(a) ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 2 apeal377.06 read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 ("Act" for short).
2. I have heard the learned Additional Public Prosecutor Smt. S.S. Jachak for the appellant at length. None appears on behalf of the respondent-accused.
3. In the light of the submission which is advanced, only few facts are relevant and may be noted.
(i) A sample of chilly powder was collected by the Food Inspector from the grocery shop of the accused on 14-10-1991, which was found to be adulterated. This position is not seriously disputed by the accused.
(ii) The defence of the accused, which found favour with the trial Court is that he had purchased the chilly powder from Bashir Gruha Udyog, Satranjipura, Nagpur who operated under the name and style "Star Trading Company" and that the accused produced a bill evidencing the said purchase on the date of the seizure of the sample.
The chilly powder was properly stored. The bill was a deemed warranty and the accused is, therefore, entitled to the benefit and protection of Section 19(2)(a)(ii) of the Act.
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(iii) The trial Court on appreciation of material on record, recorded a finding that the accused had purchased the chilly powder from the supplier and stored the chilly powder properly. I see no reason to disagree. The fact that the bill was produced by the accused is admitted by the complainant Food Inspector. It is further admitted that the cloth bag from which the sample was taken was properly packed and sealed. The trial Court further found that it is not even the case of the prosecution that the chilly powder was not properly stored.
4. Section 19 of the Act reads thus :
"19. Defences which may or may not be allowed in prosecutions under this Act.- (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(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 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.] ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 4 apeal377.06 (3) Any person by whom a warranty as is referred to [in section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence."
As noted supra, the evidence on record is that the chilly powder was properly stored and was sold in the same State as was purchased. The only question which remains to be answered is whether the bill is deemed warranty as would confer protection to the accused under Section 19(2)(a)(ii) of the Act.
Section 14 of the Act is relevant and is reproduced below :-
"14. Manufacturers, distributors and dealers to give warranty.-- No (manufacturer or distributor of, or dealer in,] any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor.
[Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.] Explanation--In this section, in sub-section(2) of section 19 and in section 20A, the expression "distributor"shall include a commission agent.
14A. Vendor to disclose the name, etc.,of the person from whom the article of food was purchased.--Every vendor of an article of food shall, is so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food.]"
The proviso, which is inserted by Act 34 of 1976 provides ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 5 apeal377.06 that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this Section.
5. The consensus of judicial opinion is that after the insertion of the proviso to Section 14 of the Act, a bill would be deemed warranty and would be defence to prosecution for offence punishable under the Act.
6. In Chunduri Gopalakrishna Murthy v. State, 1978 Cri.L.J. 1365, the learned Single Judge of the Andhra Pradesh has held thus :
"2. Section 19 of the Prevention of Food Adulteration Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mis- branded articles of food if he proves that he had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he had sold it in the same state as he had purchased it. In this case the accused had purchased the peppermints from the manufacturer Srinivasa Confectionery, Tenali. He had also sold them in the same state in which he had purchased them. But he did not have a written warranty in the prescribed form from the manufacturer.
Section 14 of the Act reads as follows:
14. Manufacturers, distributors and dealers to give ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 6 apeal377.06 warranty.- No manufacturer or distributor of or dealer in, of any article of food shall sell such articles to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. The proviso was inserted by Amendment Act 34 of 1976. The reason for introducing the proviso is stated in the Joint Committee Report as follows. Section 14 of the principal Act imposes obligation on every manufacturer, distributor or dealer to give a warranty in writing in respect of the nature and quality of every article of food sold by him to a vendor. During the course of the evidence tendered before the committee the representatives of the retailers represented that the requirement of the law was not being followed by the manufacturers or dealers as a result of which the vendors had to suffer. The Committee has remedied the situation by inserting a proviso to the section to the effect that a bill, cash memorandum or invoice given by a manufacturer, distributor or dealer in respect of any article of food purchased by the vendor shall be deemed to be a warranty.
3. A reading of the proviso shows that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under that section. In this case, it is found that the cash bill Ex. D-1 was given to the accused by the Manufacturer of the peppermints. If so it will be deemed to be a warranty in writing in the prescribed form given by the manufacturer under Section 14. If he had produced the warranty there is no question of penalising him. The learned Judge evidently erred in holding that because the cash bill did not give the details as to the nature and quality of the articles sold it cannot be treated as a warranty.
4. The learned Public Prosecutor submitted that under Rule 12-A every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 :::
7 apeal377.06 cash memo or label a warranty in Form VI-A. Then he had referred me to Form VI-A and submitted that since the cash bill in this case does not contain the warranty in Form VI-A, the proviso to Section 14 has no application. Rule 12-A was there before the insertion of the proviso to Section 14. The proviso does not say that the cash bill should be in accordance with Rule 12-A. If a bill is given in terms of Rule 12-A then that itself is the warranty and there is no question of deeming it to be a warranty under the proviso to Section 14. On the other hand the proviso to Section 14 makes it clear that if a bill is given for the sale of an article by the manufacturer it would be deemed to be a warranty given by the manufacturer."
A similar view is taken by the Gujarat High Court in Ramanbhai Shivabhai Prajapati v. State of Gujarat, 1991(1) Gujarat Law Reporter 82.
The Orissa High Court observes thus in Shakti Kumar Agrawala v. State of Orissa, 1992 Cri.L.J. 993.
"9. For the purpose of third contention, Section 19(2) of the Act may be usefully quoted :
"19. Defences which may or may not be allowed in prosecutions under this Act:-
(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 warranty in the prescribed form ; and
(b) xx xx xx "
The proviso to Section 14 of the Act provides that a bill, ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 8 apeal377.06 cash memorandum or invoice etc. issued by a manufacturer, distributor or dealer is deemed to be a warranty in that prescribed form. So, according to the above provision, a vendor is protected from sale of any adulterated article of food, if he has proved that he purchased the article of food from any manufacturer, distributor or dealer under a bill'. Since in this case the prosecution made the Orissa Flour Mills Limited, Khetrajpur, Sambalpur as an accused and issued notice in from VI (Ext. 7) quoting therein the bill number with date under which the said mill had sold the Suji to the farm of the petitioner, it is submitted by Mr. G. Rath appearing for the petitioner that the petitioner is protected Under Section 19(2) of the Act. The learned counsel for the State on the other hand contends that the bill having not been proved by the petitioner, the aforesaid protection will not be available to him. When the prosecution itself came forward with the case that the petitioner had purchased the Suji from M/s. Orissa Flour Mills Limited, Sambalpur under Bill No.987 dated 26-2-1980, it was not necessary for the petitioner to prove the bill and consequently I hold that the petitioner is protected Under Section 19(2) of the Act, particularly when M/s. Orissa Flour Mills, Sambalpur was undisputedly a manufacturer of Suji."
In Nirmal Poddar v. State of Assam, 2004 Cri.L.J. 2441, a learned Single Judge of the Gauhati High Court has held thus :
"6. Assailing the impugned judgment and order, Mr. Bhattacharya, learned Sr. counsel has contended that his argument would be confined to a very short but important point. The same is whether the petitioner is entitled to get protection under Sections 14 and 19(2) of the Act read with Rule 12(A) of the Rules. According to him, the petitioner is a petty vendor of a bag of 'iodised salt', the article in question which was purchased by him from one M/s. Rawatmal Bhairudan Kundalia, Jorhat. The petitioner purchased the aforesaid article from the abovementioned firm at a cost of Rs. 55.89 paise. The cash memo of such purchase was already exhibited as Exbt. "Ka" and the said article was sold by him from the same bag he purchased from the whole-seller. But ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 :::
9 apeal377.06 despite the said factual situation, the learned Appellate Court while appreciating the evidence of DW-2, Gautam Kundalia who was one of the partners of the said firm, wrongly observed that the said witness did not depose that the firm was duly licensed manufacturer, distributor or dealer when Section 14 and 19(2)
(a)(ii) of the Act do not provide for the necessity of such licensed manufacturer, distributor or dealer. Moreover, the learned Sessions Judge also held that the petitioner had no written warranty in prescribed form while ignoring to accept the cash memo (Exbt. "Ka") as the warranty as mentioned in the proviso of Section 14 of the Act and Rule 12(A) of the Rules.
7. For better appreciation of the short issue involved in the instant case, as pleaded by Mr. Bhattacharya, it would be apposite and necessary to refer those provisions of law laid down in Sections 14 and 19 of the Act as well as Rule 12(A) of the Rules which may be quoted below:
"14. Manufacturers, distributors and dealers to give warranty.-- No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section."
"19. Defences which may or may not be allowed in prosecutions under this Act.-(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. (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 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 10 apeal377.06 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. (3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence."
"Rule 12A. 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 a label a warranty in Form VIA."
8. From a conjoint reading of the above provisions of law, it would appear that a cash memo in respect of the sale of any article of food given by a manufacturer, distributor or dealer to a vendor shall also be deemed to be an warranty given by such manufacturer, distributor or dealer and it is not necessary that such manufacturer, distributor or dealer must be a licensed one. Another requirement is that any person by whom such warranty i.e., cash memo is alleged to have been given shall be entitled to appear at the time of hearing and give evidence, in the instant case, it is admitted that a cash memo as regards the sale of the bag of 'iodised salt' was given by M/s. Kundalia to the vendor petitioner and one Gautam Kundalla appeared before the Court and gave his deposition as defence witness, D.W. 2.
9. The Orissa High Court in Gurumurty Patra v. State of Orissa, reported in 1990 Cri LJ (NOC) 160 held that the retailer shopkeeper could not be guilty of any offence under Section 16(1)(a)(i) of the Act as in the said case, the petitioner being a retailer shopkeeper could satisfy the requirement of the proviso of Section 14 of the Act and the cash Memo so issued by the distributor could be deemed to be warranty given to the retailer.
10. The Apex Court in P. Unnlkrishnan v. Food inspector, Palghat Municipality, reported in AIR 1995 SC 1983 : (1995 Cri LJ 3638) categorically ruled that in every case, the accused could not be expected to verify further whether the contents of the label on the tin and those in the bill containing the warranty were correct or not inasmuch as the further proof the manufacturer from whom the accused purchased the article was duly licensed, depended on the facts of each case. In the said ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 ::: 11 apeal377.06 case, admittedly, the article was in sealed tins which were not tampered with a label to the effect that it was a product of M/s. Tajus Productions which was claimed to be a bogus non-existing manufacturing farm situated 200 KM away from the petitioner's shop. It was held there that no knowledge about the non-existence of the Farm could be attributed to the accused and he could not be expected to verify as to what the actual position was regarding existence of the farm which was 200 Kms. away. It was held by the Apex Court that the accused duly discharged the burden to the extent necessary under the provision of law laid down under Section 19(2) of the Act and as such the petitioner could not be deprived of the defence to which he was entitled to under the said Section.
11. Having regard to the aforesaid Judicial authorities and also in view of what has been discussed and observed herein above, this Court is of the considered view that the facts and circumstances of the case in hand has indicated that the petitioner has duly discharged his burden to the extent necessary under the provisions of law laid down under Sections 14 and 19(2) of the Act read with Rule 12A of the Rules abovementioned and as such the petitioner's conviction is liable to be set aside. Consequently, the conviction and sentence are hereby set aside and quashed."
7. The learned Additional Public Prosecutor Smt. S.S. Jachak has not brought to my notice any decision of the Hon'ble Apex Court or of this Court which takes a contrarian view.
8. The trial Court has held that the respondent-accused is entitled to the benefit of the defence available under Section 19(2)(a)
(ii) of the Act. I do not see any serious error much less perversity in the finding recorded, which is based on material of record.
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9. The appeal is without substance and is rejected.
JUDGE adgokar ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 12:06:50 :::