JUDGMENT P. Govinda Menon, J. 1. This is an appeal filed by the Food Inspector of the Ernakulam Municipality against the order passed by the District Magistrate, Ernakulam acquitting the accused who was prosecuted under S.16(1)(a) read with S.7 of the Prevention of Food Adulteration Act, 1954 - hereinafter referred to as the Act. 2. On 8-7-1959, P.W. 1 one of the Food Inspectors of the Municipality visited the Arya Vydia Pharmacy at Valanjambalam and purchased from the accused, Who was in charge, 12 ozs. of honey, paid its value and obtained a receipt. Notice was then given that the purchase was for analysis. The honey was divided into three parts and duly sealed and one part was given to the accused and acknowledged. The other part was sent to the Public Analyst, Trivandrum, who on analysis found that the sample to be adulterated. 3. The fact of purchase and the sampling is not disputed. At the request of the accused the sample was sent to the Central Food Laboratory, Calcutta and Ext. P 5 the report of the Director confirmed that the honey was adulterated. The learned District Magistrate acquitted the accused on the sole ground that the accused is protected by the proviso to S.17(1) of the Act. The correctness of the conclusion reached by the District Magistrate is challenged in this appeal. 4. S.17 of the Act reads as follows: "(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence * * * *" S.17 prescribes a rule of vicarious liability in case of sales by a company making every person who was in charge of the business of the company at the relevant time also liable for the commission of the offence. It is only when a director or officer of the company other than the person who actually sold the article on behalf of the company is prosecuted and sought to be made liable that S.17 really comes into play. 5. S.7 of the Act provides: "No person shall himself or by any person on his behalf .......... sell .............. (1) any adulterated food; ...................................." The material part of S.16(1) provides: "If any person, (a) whether by himself or by any person on his behalf ............ sells .......... any article of food in contravention of the provisions of this Act ..............or ............ .................... he shall, .................. be punishable ...................." The expression 'person' takes in every one who sells adulterated food. The prohibition applies to all persons who sell adulterated food, and for contravention of the prohibition all such persons are penalised. The honey was admittedly sold by the accused and since it is found to be adulterated, the accused would be guilty of the offence. 6. The learned District Magistrate accepted the plea of the accused that he was not aware that the honey was adulterated. Such a plea cannot be entertained in view of the express provisions of S.19 of the Act which specifies what defences are open. By S.19, in a prosecution for an offence pertaining to the sale of any adulterated article of food, it is no defence merely to allege that the vendor was ignorant of the nature, substance or quality of the food sold by him. Such a defence can only succeed if the person charged with selling adulterated food proves that the article of food was purchased as of the same in nature, substance and quality as that demanded by the purchaser with a written warranty in the prescribed form that it was of such nature, substance and quality. The liability of a person contravening any of the provisions contained in S.7 is an absolute liability and is not dependent on the existence of any particular knowledge or intention. Prohibition of sale of adulterated food is evidently imposed in the larger interests of maintenance of public health vide - the decision of the Supreme Court in AIR 1961 SC 631 . Actual vendor can be excused only if he has got a warranty in the prescribed form. 7. Prohibition of sale of adulterated food is evidently imposed in the larger interests of maintenance of public health vide - the decision of the Supreme Court in AIR 1961 SC 631 . Actual vendor can be excused only if he has got a warranty in the prescribed form. 7. The learned counsel for the defence cited the decision in Public Prosecutor v. Nelluru Subrahmanyam (AIR 1960 Andhra Pradesh 584). In that case the Food Inspector proceeded to the premises of a rice mill called Markandeya Rice Mill and purchased three quarters seer of red gram. The managing partner of Sri Rama Trading Company who is also a partner of the Markandeya Rice Mill was prosecuted and it was held that the prosecution against the accused must fail inasmuch as it has not been established that the sale in question was made with the consent or connivance of or through the neglect of the accused, who was being prosecuted only as the managing director of the company. He was not the person who actually sold and the question whether the person who actually sold would be protected under the proviso to S.17 did not come up for consideration. That case has, therefore, no application to the facts of the case before us. S.17 of the Act has thus been misread and misconstrued by the learned Magistrate. 8. The learned counsel for the accused has sought to support the acquittal on the ground that the accused had a warranty which would afford a defence to him. When questioned under S.342 Cr. P. C. the accused stated that he had a warranty that the warranty had been sent to the Municipality with a notice that he intended to rely on the warranty. D. W. 1 the Municipal Commissioner has stated that the copy of the warranty sent by the accused has been received by him. It is dated 28-1-60 and purports to be signed for B. Dugson Fruit Products, Bareilly. No attempt, however, was made to examine any one from that company to prove that the warranty was given. 9. The wording of S.19(2)(i) makes it clear that the warranty must have been obtained by the vendor at the time of his purchase of the article in question. The words used are, "the article of food was purchased by him .................... 9. The wording of S.19(2)(i) makes it clear that the warranty must have been obtained by the vendor at the time of his purchase of the article in question. The words used are, "the article of food was purchased by him .................... with a written warranty in the prescribed form .........................." This position is further clarified by Form No. VIA which contemplates a warranty being contemporaneously given in respect of each invoice. The learned counsel for the defence has referred me to certain English decisions. In the first place the decisions of the English courts based on S.25 of the Sale of Food and Drugs Act 1875 will not be of much assistance as no similar form of warranty appears to have been prescribed under that Act. 10. S.25 reads as follows: "If the defendant in any prosecution under this Act prove to the satisfaction of the Justices or Court that he had purchased the article in question as the same in nature, subsistence, and quality as that demanded of him by the prosecutor, and with a written warranty to that effect, and he had no reason to believe at the time when he sold it that the article was otherwise, and that he sold it in the same state as when he purchased it, he shall be discharged from the prosecution ................" There is no mention in the section of the warranty being in any particular prescribed form. But reading S.19(2)(i) of the Act with the form of the warranty prescribed it appears to me that the warranty should accompany every consignment. 11. Reference was made to a recent decision of a Special Bench of the Assam High Court in Dr. Nirmal Kumar Purkavastha v. Narayanan Chandra Saha (AIR 1961 Assam 128) where this question had come up for consideration and basing probably on the English decisions, their Lordships held that a warranty should have formed a part of the contract or should have accompanied the consignment. It is not necessary to canvass the correctness of this decision for this case because even under the English decisions the undertaking to give a warranty must have been one of the terms of the contract of purchase and it is only then that the warranty obtained subsequently can be availed of as a defence. 12. I would refer to some of those decisions. 12. I would refer to some of those decisions. In Plowright v. Burrell (1913 (2) KB 362), the appellant was charged under the Sale of Food and Drugs Act with selling milk that was adulterated. It was proved that the milk had been bought by him from a company under a written agreement and had been sold by him in the same state as when it was purchased. The agreement provided as follows: "The company hereby warrants each and every consignment of milk delivered under this contract to be pure, genuine new milk with all its cream according to the conditions of the Food and Drugs Act." It was held that the agreement constituted a good warranty within S.25 of the Sale of Food and Drugs Act for each consignment of the milk under the contract and that the appellant was therefore entitled to be discharged. 13. It was held in Laidlow v. Wilson (1894 (1) QB 74) that a written contract for the sale of "three tons Kilvert's pure lard for delivery to end of January" was a warranty, and that the word "warranted" need not be actually used, but it was clearly mentioned in the decision that a written warranty mentioned in the section in order to protect the seller of an article must have formed part of the contract under which the seller purchased the article from his vendor, as having been given either when the contract was made, or, if afterwards than in pursuance of a term in the contract that it should be given. 14. It is not necessary to deal with the other cases. It is clear that a warranty which is neither contained in the contract of sale nor given afterwards in pursuance of a stipulation in the contract affords no defence. In Jeynes v. Hindle (1921 (2) KB 581), Hindle a pharmaceutical chemist was prosecuted under S.6 of the Sale of Food and Drugs Act, 1875 for having sold to the prejudice of the purchaser a bottle of quinine wine which was not of the nature, substance and quality of the article demanded by the purchaser. In Jeynes v. Hindle (1921 (2) KB 581), Hindle a pharmaceutical chemist was prosecuted under S.6 of the Sale of Food and Drugs Act, 1875 for having sold to the prejudice of the purchaser a bottle of quinine wine which was not of the nature, substance and quality of the article demanded by the purchaser. The respondent did not receive any written warranty other than such as he contended was contained in the invoice from the manufacturers of the wine describing it as "O. Q. wine", but he contended that the invoice and label were a sufficient warranty under S.25 of the Act. It was held that the written warranty must be a part of the contract of purchase which would include cases where a written warranty had been given at the time of the purchase and also where a written warranty had been given at a subsequent date in pursuance of a stipulation forming part of the contract of purchase On the facts of the case their Lordships said there was no written warranty at the time of the purchase, and no contract at the time of the purchase, that there should be a written warranty and all that took place was that there was a sale and that subsequently a written warranty was forth coming and that it does not comply with the requirements of the statute. 15. In this case no evidence was adduced in the trial court to show that the warranty given on 28-1-1960 was in pursuance of a contract put into writing when the contract was made. When the appeal came on for hearing the learned counsel for the accused has now produced some documents with a request that it may be received under S.428, Cr. P. C. The learned counsel for the municipality has opposed the reception of these documents and has argued that S.428, Cr. P.C., can be invoked only in cases where the court finds that the evidence on record is insufficient to enable it to come to a decision on the points arising in the case and that the said section is not to be used to enable either the prosecution or the defence to fill up any lacunae in the evidence. P.C., can be invoked only in cases where the court finds that the evidence on record is insufficient to enable it to come to a decision on the points arising in the case and that the said section is not to be used to enable either the prosecution or the defence to fill up any lacunae in the evidence. It was also stated that the onus of proving the defence of warranty under S.19 rests with the accused and that absolutely no valid or sufficient reasons are given why these documents were not produced before the trial court or earlier before this Court, There is considerable force in the submission made. 16. In the trial court since the warranty was admittedly obtained after P. W. 1 had taken the sample and as the warranty had to accompany the invoice and no warranty was obtained along with the invoice, this plea was probably not pressed and no reference is made regarding this plea in the judgment. When the appeal came on for hearing on the first occasion and it was heard in part, no documents were produced. After the decision in the Assam case the accused has now come forward with a petition for the reception of certain documents in an attempt to show that the warranty in question was given in pursuance of an earlier understanding, 17. From the documents produced it is seen that the contract of purchase was by an order placed by the accused's company as per their letter No. 1142/56-57 dated 9-11-1956 and the acceptance of the said order by Messrs. B. Dugson Fruit Products by their letter dated 14-11-1956. The order placed by the accused's company is still not produced. In the letter of acceptance produced there is nothing to show that there existed any condition or understanding as part of the contract that the suppliers were to issue any warranty in respect of the honey supplied by them. What is stated is only that they have registered the intend for 10 drums of honey to be despatched periodically. The learned counsel appearing for the accused referred me to an advertisement circular dated 31-5-1958 by Drugson Fruits Products regarding their Nepal honey. What is stated is only that they have registered the intend for 10 drums of honey to be despatched periodically. The learned counsel appearing for the accused referred me to an advertisement circular dated 31-5-1958 by Drugson Fruits Products regarding their Nepal honey. This cannot, in any sense, be termed as a contract entered into between the accused's company and Dugson Company in 1956 in execution of which contract alone supplies of honey had been made from time to time. This advertisement circular, therefore, cannot help the accused in maintaining that the written warranty even though issued later was issued in pursuance of a stipulation forming part of the contract of purchase. No useful purpose would, therefore, be served by admitting these documents in evidence. I reject the petition. 18. It follows that the warranty dated 28-1-1960 on which reliance is placed by the defence cannot be construed as a warranty coming within S.19(2) of the Act and therefore the accused cannot successfully plead that the case comes within that clause. It is, therefore, clear that the acquittal of the accused is wrong and unsustainable in law and has to be set aside. 19. Regarding the sentence there is no case that the accused had anything to do with the adulteration and it is not disputed that he had sold it in the same condition in which the consignment was received from Bareilly. The accused has to be found guilty of the offence only because he has no proper warranty in the prescribed form. I, therefore, think that a sentence of a fine of Rs. 50/- would meet the ends of justice. 20. In the result the appeal is allowed, the order of acquittal is set aside and the accused is found guilty and convicted under S.16 read with S.7 of the Act and sentenced to pay a fine of Rs. 50/- and in default of payment of fine to undergo simple imprisonment for one month. Time for payment of fine, one month from this date.