Full Judgment Text
Criminal Appeal No.982/2023
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2023
(ARISING OUT OF S.L.P.(CRL.) NO.8128/2016)
M/s SRI MAHAVIR AGENCY
& ANR. …Appellants
Versus
THE STATE OF WEST BENGAL
& ANR. …Respondents
J U D G M E N T
Rajesh Bindal, J.
1. The appellant was accused in a complaint filed
under Section 16(1)(a)(i) read with Section 7 of the Prevention
of Food Adulteration Act, 1954 (for short “the Act”). He was
convicted and sentenced to undergo rigorous imprisonment
for a period of six months by Senior Municipal Magistrate,
Calcutta. In appeal, the conviction and sentence of the
appellant was upheld by the Additional District & Sessions
Signature Not Verified
Judge, Fast Track Court, Calcutta vide judgment dated
Digitally signed by
Indu Marwah
Date: 2023.04.17
17:45:47 IST
Reason:
26.06.2009 in Criminal Appeal No.106/2007. The order was
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challenged before the High Court at Calcutta by filing a
revision petition bearing C.R.R. No.64/2014 which was
dismissed on 08.06.2016. The judgment has been impugned
before this Court.
2. Learned counsel for the appellant raised a legal
argument and submitted that the appellant is merely a vendor
who purchased food item pan masala, namely, ‘Pan Parag’
from M/s Kothari Pouches Limited, the manufacturer, in sealed
packaged condition and sold it to its customers. In terms of
Section 14 of the Act, the manufacturer had given warranty
about the nature and quality of the product sold by the
petitioners. It was in the form of a bill having a specific note
with reference to the warranty. The protection is available to
the appellant in terms of Section 19(2) of the Act which
provides for defences which may be available in prosecutions
under the Act. The Courts below failed to consider the
aforesaid legal argument and upheld the conviction.
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3. On the other hand, learned counsel for the
respondents submitted that it is a case in which samples of pan
masala namely ‘Pan Parag’ were collected from the business
premises of Chanda Aggarwal, buyer of pan masala from the
appellant. Initially complaint was filed against Chanda
Aggarwal and Binod Agarwal. However, on an application
filed by them, the appellant was impleaded as an accused as
they had produced the bill showing purchase from the
appellant. Only the appellant was convicted in the said matter
as Chanda Aggarwal and Binod Agarwal were given benefit of
protection under Section 19(2) of the Act. The samples of
seized pan masala were tested twice, once by the Public
Analyst for Calcutta Municipal Corporation and then by
Central Food Laboratory at CFTRI, Mysore on the application
of the appellant. Both times the sample did not conform to the
standards laid down for ‘Pan Masala’ under the Act and Rules
framed thereof and the tests failed. Hence, the offence was
clearly established.
4. It was further submitted that the appellant cannot be
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allowed to go scot-free only on technical grounds. A warranty
has to be given by the manufacturer or distributor in the
prescribed form. In the case in hand, there is no such warranty
produced by the appellant. There are concurrent findings of
fact recorded by all the Courts below. Another argument
raised is that the appellant cannot be said to be a vendor. No
case for interference is made out.
5. In response to the arguments raised by learned
counsel for the respondents, the learned counsel for the
appellant referred to the Constitution Bench judgment of this
Court in Mangaldas Raghavji Ruparel and another v. State of
1
Maharashtra State to submit that though the word “Vendor”
has not been defined in the Act, however, it has been defined
to mean a person who has sold the article of food, which is
alleged to be adulterated.
6. Heard learned counsel for the parties and perused
the relevant referred record.
1
AIR 1966 Supreme Court 128
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7. To appreciate the arguments raised by the learned
counsel for the parties, reference to provisions of Sections 14
and 19 of the Act would be relevant. The same reads as
under:-
“ 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 20-A, the expression
“distributor” shall include a commission agent.”
“ 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
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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.”
8. A perusal of Section 14 of the Act shows that there is
a bar on the manufacturer or distributor or dealer to sell any
article to any vendor unless he has given a warranty in writing
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about the nature and quality of such article to the vendor. Rule
12A of the Prevention of Food Adulteration Rules, 1955 (for
short, “the Rules”) prescribes the procedure to give warranty.
It reads as under:-
“ 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.”
9. Proviso to Section 14 thereof provides 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.
10. Form VIA, as referred to in 12A of the Rules
provides text of the warranty to be furnished by the
manufacturer, distributor or dealer selling the article of food.
The same reads as under:-
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“ [FORM VIA
( See rule 12 A)
FORM OF WARRANTY
Invoice No. ………………. Place……………
Form ……………………… Date…………….
To ………………………….
Date of Sale Nature and quality Batch No. or Code No. Quantity price
of Article/Brand
Name, if any
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 or Dealer
Name and Address of
Manufacturer/ Packer Licence No. ………………
(in case of packed article). (Wherever applicable.)]”
11. A conjoint reading of Section 14, Rule 12A and Form
VIA provides that no manufacturer or distributor or a dealer of
any food article shall sell such article to any vendor unless he
has given a warranty in writing in the prescribed form
regarding nature and quality of such articles to the vendor.
The procedure to give a warranty has been provided in Rule
12A of the Rules. Proviso to Section 14 provides that even a
bill, cash memo or invoice in respect of sale of any article
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given by the manufacturer or distributor or dealer shall be
deemed to be a warranty given by such manufacturer,
distributor or dealer. Form VIA provides the text of the
warranty to be given.
12. Exhibit C/Annexure P-1, i.e. Invoice No. 1377 dated
12.08.1999 vide which the appellant had purchased the ‘Pan
Masala’ from M/s Kothari Pouches Ltd., is on record. It
contains a certification “ 1. We hereby certify that the goods
mentioned in this invoice are warranted to be of nature and
quality which theses purport to be.” A perusal of the aforesaid
certification given by the manufacturer of the ‘Pan Masala’
shows that it was in terms of the requirement of law.
13. Section 19(2) of the Act provides for the defences
which are available to a vendor from prosecution under the
Act. Sub-clause (ii) of Section 19(2)(a) of the Act provides 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 from
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any manufacturer, distributor or dealer with a written warranty
in prescribed form. Accordingly, the appellant was having a
valid defence in terms of Section 19(2) of the Act as the packed
item sold by him namely ‘Pan Parag’ was having a written
warranty in prescribed form from the manufacturer.
14. The term ‘Vendor’ as such has not been defined
either in the Act or in the Rules. In Mangaldas Raghavji
Ruparel’s case (supra), the word ‘Vendor’ is defined to mean
a person who has sold the article of food, which is alleged to
be adulterated. The Bench stated:-
“The word “Vendor” though not defined in the Act,
would obviously mean the person who had sold the
article of food which is alleged to be adulterated.”
15. In the case in hand, it is the appellant who sold the
article of food after purchasing the same from the
manufacturer through the invoices which contained the
warranty as prescribed under the Act and the Rules. Hence,
he had the protection available under Section 19(2)(a) of the
Act.
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16. Though, Section 20A of the Act provides for
impleadment of manufacturer, distributor, or dealer in a
pending complaint, however, nothing was pointed out at the
time of hearing that any such action was taken.
17. In view of the aforesaid reasons, the appeal is
allowed. Impugned judgment and final order of the High Court
is set aside. Bail bonds of the appellant stand discharged.
….…………..………J.
[Abhay S. Oka]
….……………..……J.
[Rajesh Bindal]
New Delhi
April 17, 2023
/NR//
/
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