STATE OF KERALA v. RENGANATHA REDDIAR — 1967 DIGILAW 174 (KER)

Judgment :- 1. The Food Inspector, Kottarakara Panchayat, filed a complaint charging the accused with an offence punishable under S.16(1) (a) read with S.7 (1) of the Prevention of Food Adulteration Act, 1954, Act 37 of 1954, hereinafter referred to as the Act. The case against the accused was as follows: pw.1, the Food Inspector, went to the shop of the accused at Kottarakkara on 19-5-1965 and purchased 21 packets of Asafoetida exhibited for sale in the shop. pw.1 packed them in three separate packets. He sent one packet to the Public Analyst for chemical analysis, gave another to the accused and retained the third with him. Ext. P1 is the mahazar prepared by him. Ext. P6 is the certificate of the Public Analyst. It states that on analysis the sample was found to contain wheat, starch and tapioca powder and also non-permitted coaltar dye, and so it was adulterated. On the basis of Ext. P6, pw.1 filed the complaint. 2. The learned Magistrate found that although the asafoetida was adulterated the accused was protected by Ext. D1 warranty given by the seller. The learned Magistrate, therefore, acquitted the accused. The State has filed the appeal against the order of acquittal. 3. The only point for consideration is whether Ext. D1 warranty would exonerate the accused from criminal liability. 4. 2. The learned Magistrate found that although the asafoetida was adulterated the accused was protected by Ext. D1 warranty given by the seller. The learned Magistrate, therefore, acquitted the accused. The State has filed the appeal against the order of acquittal. 3. The only point for consideration is whether Ext. D1 warranty would exonerate the accused from criminal liability. 4. S.19 (2) of the Act runs as follows: "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 j (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 12A of the rules framed under the Act reads: "Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A: Provided that no warranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor." The prescribed form is Form VI-A in Appendix A to the rules. The proviso to the rule would show that it is not necessary that the vendor should obtain a warranty in Form VI-A. The object of the rule making authority in introducing the proviso was to dispense with the necessity of obtaining the warranty in Form VI-A, if there is a warranty in the label or the cash memo, certifying that the article of food contained in the package or mentioned in the memo is the same in nature, substance and quality as demanded by the vendor. 5. The contention of the accused was that Ext. D1 cash memo issued by the seller contained such a warranty. 5. The contention of the accused was that Ext. D1 cash memo issued by the seller contained such a warranty. The cash memo states that "quality is up to the mark", and on the packets of asafoetida purchased there is the statement 6. Counsel for the accused submitted that the requirement of the proviso to R.12A is satisfied in the case because quality of the article of food has been warranted as up to the mark in the cash memo. He said that it is not necessary that cash memo or label should contain the words "nature, substance and quality" as required by the proviso but that it is enough if the quality of the article is described as up to the mark. Reference was made to the meaning of the words 'mark' and 'quality', as given in the Webster's Re vised Dictionary: "mark 2. Specifically: (a) A character or device put on an article of merchandise by the maker to show by whom it was made: a trade mark, (b) A character (usually a cross) made as a substitute for a signature by one who cannot write 8. Limit or standard of action or fact; as, to be within the mark; to come up to the mark." "quality 1. The condition of being of such and such a sort as distinguished from others; nature or character relatively considered, as of goods; character; sort; rank." Counsel relied upon certain English decisions to show that label or cash memo need not contain the words "nature, substance and quality" and that it would be sufficient if words importing the same idea are used. We doubt whether English precedents have much value in view of the difference in the wording of the section under which those rulings were rendered. We doubt whether English precedents have much value in view of the difference in the wording of the section under which those rulings were rendered. Before dealing with the rulings, we will read S.25 of the English Sale of Food and Drugs Act, 1875: " If the defendant in any prosecution under this Act prove to the satisfaction of the justices or court that be had purchased the article in question as the same in nature substance, and quality as demanded of him by the prosecutor, and with a written warranty to that effect, that 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, but shall be liable to pay the costs incurred by the prosecutor, unless he shall have given due notice to him that he will rely on the above defence". In Laidlaw v. Wilson 1894-1 Q. B. D. 74 at 77 a firm of lard manufacturers entered into a written contract on December 17,1892, for the sale of lard to the respondent in the following terms: "We have this day sold to you three tons Kilvert's pure lard for delivery to end of January, 1593." On December 23 a parcel of lard was consigned to the respondent by the said manufacturers and delivered to him under the said contract. The respondent subsequently sold a portion of such parcel to the appellant as lard. Upon analysis it turned out to be adulterated. The respondent had sold it bona fide and in the same state as it was in when he bought it. On an information against the respondent for having, contrary to the provisions of the Sale of Good and Drags Act, 1875, sold the lard not being of the nature, substance and quality demanded by the appellant, the court held that the contract of December 17 contained a sufficient written warranty of purity in respect of the specific parcel consigned on December 23 to satisfy S.25 of the Act, and that the respondent was entitled to be discharged from the prosecution. In the course of the judgment it was observed: "It is true that the contract does not in terms say that the purity of the lard is warranted, but in my judgment it is necessary that the word "warranted" should be actually used. To my mind it is enough if the language of the document imports a warranty, and shows an intention on the part of the vendor to warrant " and at page 78, it is said: "The word 'pure' in the contract of December 17, amounts to an agreement as an essential part of the contract that the lard supplied should be pure, and that is, in my opinion, a sufficient warranty of its purity within the meaning of the section." 7. In Farmers and Cleveland Dairy Company (Limited) v. Stevenson 1891 (60) LJR. (MC.) 70 the appellants before the High Court were convicted of having sold milk to the respondent not of the nature, substance, and quality demanded. They proved that they had bought the milk under a written contract with the producer, by which they were to be supplied with a certain quantity daily for six months. The contract contained the following clause, "and the vendor hereby warrants each and every supply of milk delivered, or in course of delivery, or to be delivered by him under this contract, to be pure, genuine, and new milk, unadulterated, and with all its cream on". The milk was delivered at a London terminus in cans, to each of which a label was attached stating that it contained such and such a quantity of "warranted genuine new milk with all its cream on". The court held that there was a sufficient warranty on the part of the producer to entitle the appellants to the protection afforded to them by S.25 of the Sale of Food and Drugs Act, 1875, and that the conviction must be quashed. 8. In Robertson v. Harris, 1900-2 QBD.117 upon the hearing of an information against the respondent for having, contrary to the provisions of the Act, sold on December 15,1899, certain milk to the appellant which was not of the nature, substance and quality demanded of him by the appellant, the respondent relied on an agreement in writing dated January, 20, 1899, by which a farmer agreed to sell to the respondent 1000 gallons of milk weekly, "the milk to be pure new milk". The court held that, even if the agreement amounted to a warranty within the meaning of S.25, there must be some evidence in writing to show that the particular milk sold to the appellant was purchased with that warranty, and that in the absence of that evidence the agreement afforded no defence to the respondent. 9. In Plowright v. Burrell, 1913-2 K. B. 362 the appellant before the court, being charged under the Sale of Food and Drugs Act with selling milk that was not of the nature, substance, and quality of the article as demanded by the purchaser, proved that the milk had been bought of 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 that "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", and that "no responsibility is taken by the company after delivery other than under the Food and Drugs Act", and that for all other purposes the buyer must satisfy himself at the time of delivery that the milk was pure, and that he should be entitled to make any claim against the company for damages in respect of milk accepted by him. The court held that the agreement constituted a good warranty within S.25 of the Sale of Food and Drugs Act, 1875, and that the appellant was, therefore, entitled to be discharged from the prosecution. 10. In Lindsay v. Rook, 1894 (63) LJR. (M. C.) 231 the appellant before the High Court bought a cask of vinegar from G & Co., Limited. The cask had on it a printed label bearing the words "Vinegar warranted unadulterated G & Co., Limited, Cumberland Market, London;" and the vinegar was invoiced to the appellant as "G's vinegar": The court held that here was a sufficient written warranty to entitle the appellant to the protection afforded to her by S.25 of the Sale of Food and Drugs Act, 1875. 11. 11. In Blaydon Co-operative Society v. Young 1917 (86) K. B. D. 417 on an information before justices under S.6 of the Sale of Food and Drugs Act, 1875, for selling an article of food not of the nature, substance, and quality demanded, the defendants relied on a written warranty from their vendor. The article demanded was blackberry jelly, and there was a label on the jar in which it was sold with the words "Finest Quality Blackberry Jelly. Prepared from the choicest fruit of the season and fruit juice". The Analyst certified that the sample contained at least 2 per cent of apple pulp, and he stated in evidence that he believed that the sample consisted of iwo-thirds apple and one-third blackberry. Evidence was given for the defendants that the jelly was sold as it was purchased, and that they had no reason to believe it to be otherwise than as demanded. The Justices, however, found that the defendants were aware that the contents of the jar were not of the nature, substance, and quality demanded, and that they had reason to believe that the article was otherwise than as demanded when they sold it: It was held that except for the label there was no evidence of the defendants' knowledge of the contents of the jar, and that the label was not sufficient evidence to support the finding of the justices that the defendants had reason to believe that the article was otherwise than as demanded; and therefore that the conviction must be quashed, although had the justices found merely that they were not satisfied as to the defendants' belief that the article was in accordance with the warranty the conviction might have been supported. 12. These rulings may go to show that it is not essential under the English Act to mention the words, "nature, substance, and quality" in the warranty. The words in S.25 of the English Act "with a warranty to that effect" may be noted in this context. But, so far as the case at hand is concerned, we have to go by the wording of S.19 (2) of the Act, which insists upon a "warranty in the prescribed form". The words in S.25 of the English Act "with a warranty to that effect" may be noted in this context. But, so far as the case at hand is concerned, we have to go by the wording of S.19 (2) of the Act, which insists upon a "warranty in the prescribed form". The proviso to R.12A states that the warranty must certify that the food contained in the package or container or mentioned in the cash memo is the same in "nature, substance, and quality", as demanded by the vendor. What the rule making authority has done by the proviso is to relax the rigour of the rule insisting upon obtaining a warranty by the vendor in Form VI-A. But, that would not dispense with the necessity of obtaining a warranty certifying that the article of food sold is the same in nature, substance and quality as demanded by the vendor. The idea behind the proviso is only to save the vendor from the inconvenience of obtaining a separate warranty in Form VI-A, but that does not mean that the warranty on the label or in the cash memo need not certify that food contained in the package or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. 13. It was argued that when the quality of an article of food is stated in the cash memo or label to be up to the mark, it implies that the nature, substance and quality of the article is up to the prescribed standard. That the rule making authority intended different connotations for the words 'nature', 'substance' and 'quality' is clear from their collocation. If the word 'quality' would connote the same idea as the word 'substance' or 'nature', why there is the collocation of these words in the rule? The word 'quality' alone need have been used if distinct or different ideas were not intended to be conveyed by the words 'nature' and 'substance'. Therefore, we think that the word 'quality' cannot convey the idea denoted by 'nature' or 'substance'. It is not open to the court to say that when quality alone was certified to be up to the mark it would imply that the 'nature' or 'substance' of the article was warranted to be the same as demanded by the vendor. Therefore, we think that the word 'quality' cannot convey the idea denoted by 'nature' or 'substance'. It is not open to the court to say that when quality alone was certified to be up to the mark it would imply that the 'nature' or 'substance' of the article was warranted to be the same as demanded by the vendor. As to what is 'substance' and what is 'quality', see Aristotle on "Categories", translated by E. M. Edghill in "The Basic Works of Aristotle", page 7. A philosophical speculation on this aspect of the matter is quite unnecessary as the rule making authority has made a distinction among the words 'nature', 'substance', and'quality'. 14. Counsel for the appellant referred to the decision in Paborally Sardar v. Corporation of Calcutta AIR, 1966 SC. 1569 and said that the warranty must be in the form as required by R.12A and that the words 'nature, substance and quality', are absolutely essential in a warranty. We do not think that the Supreme Court laid down any such proposition in that case. That case was concerned with the particular warranty on the label of the condensed milk tin in question in that case and does not throw much light upon the question now in controversy. 15. We do not think that the statement on the labels extracted above was intended as a warranty by the seller nor can we hold that the statement satisfies the requirement of a warranty as mentioned in the proviso to R.12 A. 16. As the asafoetida in question was found to be adulterated and as the accused is not protected by Ext. D1 warranty, we hold the accused guilty. We therefore set aside the order of acquittal and convict the accused of the offence under S.16 (1) (a) read with S.7 (1) of the Act. 17. On the question of sentence, it was argued that the court should exercise its discretion under the 2nd proviso to S.16 (1)(f) and dispense with a sentence of imprisonment in view of the fact that the accused is suffering from coronary thrombosis. We have considered the question whether it is open to the court under the proviso to dispense with imprisonment altogether in Crl. R. P. 2/67 (since reported in 1967 KLT. 672) and there we have arrived at the conclusion that the court has no option to dispense with it. We have considered the question whether it is open to the court under the proviso to dispense with imprisonment altogether in Crl. R. P. 2/67 (since reported in 1967 KLT. 672) and there we have arrived at the conclusion that the court has no option to dispense with it. A copy of the order in Crl. R. P. 2/67 will be appended to this judgment. 18. The accused has produced a medical certificate stating that he is suffering from coronary thrombosis. We think, this is sufficient reason for taking a lenient view in the matter of imposing the sentence of imprisonment. We, therefore, sentence the accused to undergo S. I. for seven days and to pay a fine of Rs. 950/-, and in default of payment to undergo S. I. for 30 days. The appeal is allowed. Allowed.