Full Judgment Text
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PETITIONER:
M/S. MURLIDHAR SHYAMLAL & ANR.
Vs.
RESPONDENT:
STATE OF ASSAM
DATE OF JUDGMENT: 18/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1429 JT 1996 (1) 664
1996 SCALE (1)631
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
Though notice was served on the States none appeared
and pursuant to another notice given to the State counsel,
she has circulated a letter stating that she did not get any
instructions from the State and that, therefore, she cannot
proceed with the matter. We have heard the counsel for the
appellants.
The appellant was charged for an offence under Section
7 read with Section 16 of the Prevention of Food
Adulteration Act, 1954 (for short, ’the Act’) for
adulteration of mustard oil. The offence had taken place on
1.2.1984. Consequently, if the offence is proved, the
sentence would be of mandatory character. He was acquitted
by the trial court but on appeal, the High Court set aside
the acquittal and the appellants were convicted and
sentenced to undergo imprisonment for a term of six months
and also to pay a fine of Rs. 1000/-- and in default, he
was to undergo further imprisonment for a period of one
month. Both sentences were directed to run concurrently.
The learned Magistrate considering Section 19(2)) read
with Rule 12A of the Food Adulteration Rules, 1956 (for
short, ’the Rules’) found that since the appellant was armed
with a warranty as envisaged thereunder, he had not
committed the offence of adulteration of food. Accordingly,
he acquitted the appellant. On a composite appeal filed in
the High Court, the learned single Judge in Government
Criminal Appeal No.62 of 1985 set aside the acquittal and
convicted the appellants for the aforesaid offence. Thus
this appeal by special leave.
Learned counsel for the appellants relying upon
Section 19(2) and Rule 12-A of the Rules contended that on
the appellant proving that he purchased article of food from
a manufacturer or a dealer with a warranty as envisaged in
Rule 12-A, he is absolved of the offence and the only remedy
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for the prosecution is to proceed against the manufacturer
or dealer or distributor etc.
Section 92(2) of the Act reads
thus:
"19.(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 warrantee
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.
Rule 12-A of the Rules reads thus:
"12-A. 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 label,
a warranty in Form VI-A,"
The warranty shall be in the prescribed form VI-A
which reads thus:
FORM VI-A
(See Rule 12-A)
Form of Warranty
Invoice No. ...........
From ..........
To ............ Place .............
Date ..............
--------------------------------------------------------
Date of Nature and quality Batch No. Quantity Price
Sale of article/Branch or
Name, if any Code No.
---------------------------------------------------------
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/dealer
Name and Address of
Manufacturer/Packer
in case of packed article
Licence No. ..........
(wherever applicable)
Thus it would be clear that with a view to absolve the
appellant of the liability for being prosecuted, the vendor
of the article of the food to the Food lnspector, has to
prove that he purchased the article of food with a written
warranty in the prescribed form VI-A in terms of Rule 12-A.
It is contended that the distributor had come into the
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witness box and stated that the article was of the same
quality as was sold by him. The learned counsel has relied
upon the memo of the sample taken by the Food Inspector
which contains thus:
"450 gms of Mustard oil from
a packed tin containing the same
weighing 16 kg. nett with a printed
label on it "New Rice & Oil Mill,
Raha, pure mustard oil
(Biswanath Brand) nett wt. 16 Kg."
stored for sale in the said
premises."
It would only indicate that the packed tin containing
the same weighing 16 Kg. (nett) with a printed label on it
"New Rice & Oil Mill, Raha, pure mustard oil (Biswanath
Brand) nett st.16 Kg." stored for sale in the said premisss.
Form this, it is contended that the appellant had the
warranty and that, therefore, by operation of Section 19(2)
read with Rule 12-A, the appellant is absolved of his
liability to be prosecuted for sale of the adulterated
article of food, We are afraid that we cannot accept the
contention. In view of the above warranty as envisaged under
Form VI-A, there must-be specific mention therein by the
dealer or distributor or manufacturer, that the article of
food sold was in the same nature and quality of the, article
of food, as the case may be. Then only he would get
acquitted, though the article of food was found adulterated.
It would be then open to the prosecution to proceed against
the manufacturers, dealer or distributor.
It is then contended that cash memo contains such a
recital and he has taken us through the evidence stated by
the witness. From the evidence, it is not clear that it
contained a warranty as prescribed in Form VI-A. Counsel
seeks to place reliance on the judgment of this Court in K.
Ranganatha Reddiar vs. The State of Kerela [(1969) 2 SCC 457
at 459]. In that case, since the cash memo was produced as a
part of the record and on consideration of recitals, this
Court had considered that when a cash memo was given by the
dealer to the accused, it must be construed in the language
employed therein and the benefit of doubt was given. In this
case, we cannot make any guess as to with would be the
nature of the language used in the cash memo which was not
filed in the absence of any specific recital therein. As
seen in the recital of the Panchanama, there is no mention
thereof as envisaged in Form VI-A. Under these
circumstances, we are constrained to confirm the conviction
and sentence minimum period of six months and is a mandatory
after the Amendment Act, 1976, we cannot interfere with the
sentence.
The appeal is accordingly dismissed.