Surisetti Appa Rao v. The State of A. P. — 1975 DIGILAW 102 (MAD)

Order: The petitioner was convicted by the trial Court of the offence punishable under section 16 (1) and section 7 read with section 2 (ix),(j) of the Prevention of Food Adulteration Act and rule 29 of the Rules framed thereunder, and sentenced to undergo 6 months rigorous imprisonment. The accused went up in appeal before the Court of Session, West Godavari Division at Eluru against his conviction and sentence, and the learned Sessions Judge upheld the conviction and sentence passed against the accused by the trial Court and dismissed the appeal. Hence this revision. 2. The case of the prosecution is that on 9th August, 1972 at about 10 a.m. the Food Inspector (P.W.1) of Eluru Municipality visited the Kirana Shop of the accused which is situated in the 16th Ward of Eluru Municipality, along with P.Ws. 2 and 3 and found 25 kgs of red gram dhall in the shop which was exposed for sale. He served a notice (Ex.P-2) on the accused in Form VI and purchased 600 grams of red gram dhall from the petitioner for Re. 1-50, and obtained a receipt therefor. The sample was then divided into there equal parts and was kept in three empty clean dry bottles. The bottles were duly corked, sealed and labelled. One bottle was given to the petitioner, another bottle was sent to the Public Analyst, and the third one was retained by the Food Inspector with him for presenting it in Court. The Public Analyst was of the opinion that the sample was mis branded in that it contained artificial water, soluble yellow colouring matter derived from coaltar prohibited under rule 29 of the Prevention of Food Adulteration Rules. In his statement under section 342, Cr.P.Code the petitioner had stated that he purchased the red gram dhall from Burle Hanumansha Rao, a wholesale dealer at Eluru who has been examined as D.W.I. The relevant cash bill dated 20th July, 1972 also was produced by the accused. 3. In this revision, Mr. Kolanda Reddy, the learned Advocate for the petitioner brings to my notice the judgment dated 13th September, 1974 of my learned brother, Chennakesay Reddy, J. in Crl.R.C. Nos. 699 and 617 of 1973 to show that the learned Judge had given the benefit of section 19 (2) of the Prevention of Food Adulteration Act to the accused in similar circumstances. I was taken through the judgment. 699 and 617 of 1973 to show that the learned Judge had given the benefit of section 19 (2) of the Prevention of Food Adulteration Act to the accused in similar circumstances. I was taken through the judgment. With respect to the learned Judge, I disagree with the conclusion arrived at by him. In that case, the plea of the accused was that he had purchased the green gram dhall from another wholesaler, viz., Uppala Satyanarayana Murthi, and he had sold it in the same form. The learned Judge, on the basis of this statement, held that the petitioner was entitled to the protection of section 19 (2). I regret I cannot agree. In cases where the accused only plead that they have purchased gram dhall from some distributor or wholesaler without a written warranty from him are not entitled to the protection under section 19 (2). Section 19 of the Prevention of Food Adulteration Act provides as follows: “19. Defences which may or may not be allowed in prosecution under this Act.- (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or mis branded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food told 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 mis branded 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 licenced 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.” 4. (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.” 4. A plain reading of this section would show that the vendor is entitled to the benefit of the section provided he proves that he purchased the article of food from a duly licensed manufacturer, distributor or dealer or in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form and 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. Merely stating that the vendor had purchased the article of food from a distributor, manufacturer or dealer, cannot absolve the vendor of his responsibility under the Prevention of Food Adulteration Act. He should also produce not only a written warranty from the manufacturer, distributor or dealer but should also show 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. Hence, without going into the question of written warranty, the learned Judge invoked the provisions of section 19 (2), with which I am not in agreement. I am, therefore, of the opinion that this matter should be referred to a Bench for consideration. The papers will be placed before the Hon’ble the Chief Justice for the formation of a Bench. In pursuance of the aforesaid order of reference this matter came up of hearing before this Bench K. Kolanda Reddy, for Petitioner. The Public Prosecutor on behalf of the State. The Judgment of the Bench was delivered by Ramachandra Raju, J.-The petitioner was convicted under sections 16 (l)and 7 read with section 2 (ix) (j) of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act"), and rule 29 of the Rules framed thereunder, and sentenced to undergo rigorous imprisonment for a period of six months which is the minimum sentence provided under section 16 (1) of the Act. It is not in dispute that the petitioner sold the sample dhall to the Food Inspector and when it was sent to the Public Analyst it was found to be mis branded. 6. It is not in dispute that the petitioner sold the sample dhall to the Food Inspector and when it was sent to the Public Analyst it was found to be mis branded. 6. The only point argued by Sri K. Kolanda Reddy, learned Counsel for the petitioner, is that the petitioner purchased the dhall in question under bill Ex.D1 from D W. 1 and therefore the petitioner is entitled to the benefit given under section 19 of the Act. Section 19 of the Act reads as follows: ‘19. Defences which may or may not be allowed in prosecution under this Act. -(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or mis branded 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 mis branded 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." 7. From a reading of the above provision it is clear that the petitioner can have the benefit of section 19 only if he purchased the article of food with a written warranty from the supplier and by showing 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. Apart from there being no written warranty in the prescribed form, Ex. D-1 cash bill also does not contain any such warranty. Apart from there being no written warranty in the prescribed form, Ex. D-1 cash bill also does not contain any such warranty. No doubt D.W. 1 came to the box and stated that he sold the food article to the petitioner. The petitioner by placing reliance on a judgment of our learned brother Chennakesay Reddy, argued before our learned brother Muktadar when this matter came up before him in the first instance for hearing, that the petitioner is entitled to acquittal on the basis of Ex. D-1 cash bill and the evidence of D.W.1 In the case before Chennakesay Reddy, J., the food article was green-gram dhall. The Analyst found it to be mis branded. The brother of the accused gave evidence in that case that the accused purchased the green-gram dhall from the shop of one Uppala Satyanarayana Murthy, that the same was put in a tin and sold in the same condition without adding anything and that Uppala Satyanarayana Murthy did not give any bill for the dhall purchased. On the basis of this evidence Chennakesay Reddy, J. observed that: “It is a matter of common knowledge that particularly in small places when small quantities like 1 kg. or 2 kgs. of dhall or other articles of food are purchased by customers or retailers, no cash memo. or warranty is given. It is not even suggested to the witness that there is no one by name Uppala Satyanarayana Murthy who is a wholesale dealer in green-gram dhall. The Food Inspector, P.W.1, admitted that he could not say on looking at the dhall in the petitioners shop whether it was adulterated or mis branded. It will be equally not possible for a retailer to know whether the article of food was adulterated or mis branded on mere look at it. Therefore, having regard to the fact that the petitioner himself is a petty dealer and that the green-gram dhall found in his shop was only about 2 kgs. I think the evidence of D.W. 1 is sufficient to establish that the petitioner purchased the green-gram dhall from another wholesaler viz., Uppala Satyanarayana Murthy, and sold it in the same form. Therefore, he is entiled to the protection of section 19 (2) of the Act.” 8. I think the evidence of D.W. 1 is sufficient to establish that the petitioner purchased the green-gram dhall from another wholesaler viz., Uppala Satyanarayana Murthy, and sold it in the same form. Therefore, he is entiled to the protection of section 19 (2) of the Act.” 8. Justice Muktadar, when the matter was argued before him, was unable to agree with the view expressed thus by Chennakesay Reddy, J. and accordingly he referred the case to a Bench. That is how this Criminal Revision Case happened to have come before us. 9. For the purpose of offences under the Prevention of Food Adulteration Act, we do not think that whether the accused is aware that the food article was adulterated or mis branded, or whether without himself adulterating or misbranding it he sold the article or not, are not questions which are very much relevant. In section 19 (1)of the Act it is mentioned that it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or mis branded 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. It is only a vendor can escape liability with regard to the sale of any adulterated of mis branded article of food if he establishes, that he purchased the food article with a written warranty from the supplier and 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. Admittedly in the present case there was no written warranty. In the present case neither the petitioner was examined himself, nor he examined anybody to prove that after he purchased the dhall in question he properly stored it and he sold it in the same state as he purchased it. We entirely agree with the view expressed by Muktadar,J., that, the two conditions mentioned in section 19 should be fulfilled before an accused can get the benefit of section 19. We entirely agree with the view expressed by Muktadar,J., that, the two conditions mentioned in section 19 should be fulfilled before an accused can get the benefit of section 19. It is true that D.W.1 came forward to say that he sold the dhall to the petitioner, but from his evidence it does not appear that he sold the dhall when it was in the same condition in which it was found when the Food Inspector purchased the sample from the petitioner for the purpose of analysis. Therefore, his merely giving evidence that he sold the dhall to the petitioner does not serve the purpose. 10. Sri Kolanda Reddy in this connection placed reliance on the decision of the Supreme Court in K.R. Reddiar v. State of Kerala.1In the case before the Supreme Court the cash memo. issued to the accused contained a warranty to conform to the rule framed under the Prevention of Food Adulteration Act, though it was not given separately in the prescribed form. Under those circumstances the Supreme Court said that the object underlying the Act having been achieved by the cash memo, containing in the warranty, the accused was entitled to the benefit of section 19 of the Act. In the present case there is no warranty at all, much less in any written form. Under these circumstances we have no doubt that the petitioner is not entitled to the benefit of section 19 of the Act and claim immunity for the misbranding of the food article. 11. Next it is argued by the learned Counsel that having regard to the circumstances of the case the punishment of six months’ imprisonment is too severe and therefore a lenient view may be taken in awarding sentence. But as provided under section 16 (1) of the Act the sentence of six months imprisonment is the minimum sentence that has to be awarded. The proviso to section 16 (1) has no application because this case does not come under the clauses mentioned in the proviso to section 16 (1) of the Act. In this connection the learned Counsel brought to our notice a judgment of one of us (Ramachandra Raju, J.) allowing an appeal filed by the State against the acquittal, and convicting the accused and sentencing him only to pay a fine of Rs. 100. In this connection the learned Counsel brought to our notice a judgment of one of us (Ramachandra Raju, J.) allowing an appeal filed by the State against the acquittal, and convicting the accused and sentencing him only to pay a fine of Rs. 100. where the minimum sentence is six months imprisonment like in the present case. But that sentence of fine was awarded without considering the provision in the Act with regard to the minimum sentence. 12. Lastly the learned Counsel has argued that the petitioner being a first offender it is a fit case to grant the petitioner the benefit of the Probation of Offenders Act and the benefit can be granted to accused like the petitioner. He placed reliance on a decision of the Supreme Court in Isher Das v. State of Punjab1, where the Supreme Court said that “adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that antisocial civil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000 has been prescribed, the Court should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act.” The petitioner in the present case was aged nearly 50 years when the offence was committed. Therefore, we do not think it is a fit case where the provisions of the Probation of Offenders Act can be applied to the petitioner. 13. Accordingly the revision case is dismissed.