Gauhati High Court
Nirmal Poddar vs State Of Assam on 18 September, 2002
Equivalent citations: 2004CRILJ2441
Author: A.H. Saikia
Bench: A.H. Saikia
ORDER A.H. Saikia, J.
1. Heard Mr. A. K. Bhattacharya, learned Sr. counsel assisted by Mr. K. Agarwal, learned counsel for the petitioner. Also heard Mr. F. H. Laskar, learned PP. Assam.
2. The conviction of the petitioner, under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (for short The Act") and subsequent sentence of rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for another period of 3 months passed by the learned CJM, Jorhat on 18-7-91 in CR No. 203/89 which was confirmed by the learned Sessions Judge by his order dated 12-5-92 in Criminal Appeal No. 24 of 91, is the subject-matter of challenge in this criminal revision petition.
3. The prosecution case briefly stated is that one Sri B. N. Pathak, Food Inspector, Jorhat, collected samples of iodised salt on 17-5-89 from the shop of petitioner after observing all legal formalities in accordance with law. He purchased six hundred grams of iodised salt on payment of 60 paise which was kept in an open bag for sale. He then sent the sample of the said iodised salt, on the following day, to the Public Analyst, Government of Assam, Guwahati with a memorandum with intimation to the Local Health Authority, Jorhat. The report was received by him through the Local Health Authority and the Analyst opined that the sample of iodised salt did not conform to the standard. He then submitted all the relevant documents to the Chief Medical and Health Officer, Jorhat praying for sanction for prosecution and latter accorded necessary sanction for prosecution of the petitioner. He, thereafter, submitted the offence report against the appellant under the aforesaid section of the Act.
4. Learned Magistrate explained the particulars of offence under Section 7/16 of the Act to the petitioner who pleaded not guilty. The prosecution examined as many as two witnesses when the defence adduced two witnesses. The petitioner denied the allegations levelled against him and sought protection under Section 19(2) read with Section 14 of the Act. After trial the learned Magistrate found the petitioner guilty under the aforesaid sections holding that the accused/petitioner was not entitled to invoke the provisions of Sections 14 and 19(2) of the Act read with Rule 12(A) of the Prevention of Food Adulteration Rules, 1955 (for short, "The Rules") and accordingly sentenced him as mentioned above.
5. Being aggrieved by the said conviction and sentence, the petitioner moved an appeal before the learned Sessions Judge who after hearing the learned counsel for the parties and also looking into the evidence on record confirmed the conviction and sentence as imposed by the learned Magistrate.
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 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 Sections 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 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 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.
12. In the result, this criminal revision succeeds and stands allowed.