D. A. DESAI, J. ( 1 ) ONE Mr. H. J. Raval Food Inspector of Surat Municipal Corporation filed a complaint against accused No. 1 New Saurashtra Hindu Lodge and Boarding. The allegation in the complaint is that when the Food Inspector visited the place of business of the accused No. 1 on 22nd June 1973 at 9-00 A. M. the Manager of the first accused was present and on a request made by the Food Inspector to the Manager to call the owner of the establishment accordingly Amratlal Harjivandas Joshi who is the proprietor of the first named accused the institute came over to the place of business. Thereafter the Food Inspector purchased 450 grammes of chilly powder after giving the requisite intimation to accused No. 1. He also purchased 600 grammes of curd and 450 grammes of turmeric powder and he informed accused No. I that the articles of food were purchased for analysis. Necessary panchnama was drawn up and articles of food purchased were divided into three equal parts and each part was kept in a bottle which was sealed. Sample bottle of each article was also given to accused No. 1. Food Inspector sent the samples of article;; of food taken by him to the Public Analyst. The report of the Public Analyst Exh. 20 shows that the sample of chilly powder contained a prohibited dye and was thus adulterated article of food. Similarly in the case of turmeric powder the report of the Public Analyst Exh. 21 shows that amongst others it included rice starch and therefore also it was an adulterated article of food. On these allegations prosecution after obtaining necessary sanction was launched against Amratlal Harjivandas Joshi the proprietor of the New Saurashtra Hindu Lodge and Boarding. ( 2 ) IN the course of the trial one Shashikant Amarsibhai Ajmera was cited as a defence witness by the accused and he was examined as defence Witness No. 4 for the accused at Exh. 78. ( 2 ) IN the course of the trial one Shashikant Amarsibhai Ajmera was cited as a defence witness by the accused and he was examined as defence Witness No. 4 for the accused at Exh. 78. It was taken out in his examination- in-chief conducted by the learned Advocate on behalf of the accused that the accused used to purchase in bulk chilly powder and turmeric powder and various other spices and condiments for his use in his business of running a boarding house namely New Saurashtra Hindu Lodge and Boarding Number of bills given by Shashikant Ajmera evidencing purchase of chilly powder and turmeric powder by the accused were got produced as well as the extracts from the account books of Ajmera in respect of the Boarding House of the accused was also got produced. After the evidence of Ajmera was over an application No. 89 was given on behalf of the complainant Food Inspector requesting the Court to join Shashikant Ajmera as accused No. 2 and frame charge against him. The learned Magistrate first issued a notice to accused No. 2 to remain present and then directed the complainant the Food Inspector to keep himself and witnesses present for cross-examination by accused No. 2 and thereafter he proceeded to pass the order. Subsequently Shashikant Ajmera was joined as accused No. 2. and charge Exh. 90 was framed against him. At the conclusion of the trial the learned Magistrate convicted accused No. 1 Amratlal Harjivandas Joshi for having committed an offence under sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act 1954 and sentenced him to suffer R. I. for six months and to pay a fine of Rs. 1 0 in default to suffer further R. I. for two months. Accused No. 2 was convicted for having committed an offence under sec. 16 (1c) of the Prevention of Food Adulteration Act and sentenced him to suffer R. I. for one month and to pay a fine of Rs. 10 in default to suffer R I. for two months. However he was acquitted of the offence under sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act. ( 3 ) BOTH the accused preferred appeals against their conviction and sentence in the court of the Sessions Judge at Surat. 10 in default to suffer R I. for two months. However he was acquitted of the offence under sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act. ( 3 ) BOTH the accused preferred appeals against their conviction and sentence in the court of the Sessions Judge at Surat. Criminal Appeal No. 21 of 1971 was preferred by original Accused No. 2 Shashikant Ajmera and Criminal Appeal No. 22 of 1974 was preferred by the original accused No. 1. Amratlal Harjivandas Joshi. Both the appeals came up for hearing before the learned Additional Sessions Judge who by his judgment and order dated 12th June 1974 dismissed the same and confirmed the conviction and sentence of both the accused. ( 4 ) MR. H. J. Raval the original complainant Food Inspector has preferred Criminal Appeal No. 585 of 1974 against that part of the judgment of the learned Magistrate by which accused No. 2 was acquitted for an offence under sec. 16 (1) (a) (i)-cread with sec. 7 (1) of the Prevention of Food Adulteration Act (Act for short ). Criminal Revision Application No. 274 of 1974 is preferred by original accused No 1 against his conviction and sentence for an offence under sec 16 (i) (a) (i) of the Act and Criminal Revision Application No. 272 of 1974 is preferred by the original accused No. 2 against his conviction and sentence under sec. 16 (1c) of the Act As these three matters arise out of a joint trial held by the learned Magistrate against both the accused and from the common judgment both of the learned Magistrate as well as the learned Additional Session Judge they were heard together. They came up before our learned brothel M. P. Thakkar J. he referred it to a larger Bench as in his opinion the matter raises an important question of interpretation of secs. 10 14 and 16 of the F A. Act which may arise frequently and is res integra till now. That is how these three matters came up before us. In this judgment the parties would be referred to by their original position before the learned Magistrate ( 5 ) ACCUSED No. I is admittedly the proprietor of New Saurashtra Hindu Lodge and Boarding at Surat. The business of accused No 1 consists of serving of cooked and prepared food on payment. In this judgment the parties would be referred to by their original position before the learned Magistrate ( 5 ) ACCUSED No. I is admittedly the proprietor of New Saurashtra Hindu Lodge and Boarding at Surat. The business of accused No 1 consists of serving of cooked and prepared food on payment. Accused No. 1 serves prepared food. He does not deal in articles of food or condiments. His is a business of boarding house which would mean that on payment of charges fixed by him cooked food is served to the persons visiting the Boarding house. This aspect has considerable importance in this matter. ( 6 ) ACCUSED No. 1 was charged for having committed an offence under sec. 16 (1) (a) (i) read with sec- 7 (1) of the Act Sec 7 (1) prohibits manufacture sale etc. of certain articles of food. It provides that no person shall himself or by any person on his behalf manufacture for sale or store sell or distribute any adulterated food etc. Accused No. 1 is charged for having stored chilly powder and turmeric powder which were found to be adulterated articles of food. Mr. H. K Thakore learned Advocate who appeared for original accused No. 1 did not dispute the findings of both the courts that chilly powder and turmeric powder of which samples were taken by the complainant Food Inspector were adulterated articles of food. His main and principal contention is that accused No. 1 does not manufacture for sale or store for sale or sells or distributes any adulterated article of food. It was contended that the word store used in sec 7 does not imply storing simpliciter but it takes its colour from the words preceding and words succeeding in the same section He said that the person who manufactures for sale adulterated article of food would contravene sec. 7. Similarly one who sells such an article of food or distribute it would be governed by sec. 7. He however said that mere storing of article of food not meant for sale even if it is found to be adulterated would not come within the purview of sec. 7. There is considerable force in this submission of Mr. H. K. Thakore. 7. He however said that mere storing of article of food not meant for sale even if it is found to be adulterated would not come within the purview of sec. 7. There is considerable force in this submission of Mr. H. K. Thakore. ( 7 ) TO recall here the business of accused No. 1 it is an admitted position that he runs a boarding house where he serves cooked food. He is not a dealer in condiments or spices. In other words even if chilly powder and turmeric powder were kept by him or to use the language of law stored by him they were to be used for preparing cooked food which he used to serve to his customers He did not store them for sale. If in the consumable final product the cooked food the adulterated articles of food namely chilly powder and turmeric powder are found present as no standard is prescribed for cooked food sec. 7 (i) would not be attracted. Therefore the question is whether mere storing of an adulterated article of food by a person who is not selling it or is not a dealer in it and who would use it for preparing cooked food could be said to be contravening sec. 7 (i ). In OM PRAKASH V. DELHI ADMINISTRATION A I R 1976 S. C. 195 at page 197 Bhagwati J speaking for the Court has observed as under: the law is now well settled that the act of storing an adult rated article of food would be an offence only if storing is for sale. If adulterated article of food is stored by any person for consumption or for any purpose other than sale it would not come within the inhibition of the section. This observation of the Supreme Court would clearly negative any charge against the accused. This aspect is almost beyond the pale of any controversy in view of the later decision of the Supreme Court in DELHI MUNICIPALITY V. L. N. TANDAN A. I. R. 1976 S. C. 621 wherein it has been in terms observed that expression store in sec. 7 means storing for sale and consequently storing of an adulterated article of food for purpose other than sale would not constitute an offence under sec. 16 (i) (a ). ( 8 ) MR. 7 means storing for sale and consequently storing of an adulterated article of food for purpose other than sale would not constitute an offence under sec. 16 (i) (a ). ( 8 ) MR. G. N. Desai learned Public Prosecutor however urged that the very fact that accused No. 1 sold chilly powder and turmeric powder to the complaint Food Inspector is sufficient to conclude that he sold an adulterated article of food and be would thereby contravene sec. 7 (i) read with sec. 16 (1) (a) (i ). Fie in this connection relied upon the definition of word sale in sec. 2 (xiii) of the Act and urged that sale to Inspector is selling of an adulterated article of food that is envisaged by sec. 7 (i) and would squarely fall within the inhibition of the section. In this connection he invited our attention to FOOD INSPECTOR CALICUT V. C. GOPALAN A. I. R. 1971 SC. 1725 in which it has been held that in view of the definition of word sale sale of any article of food for analysis comes within the definition and therefore sample of food purchased by the Food Inspector satisfies the definition of sale in the Act. Mr. Desai laid special emphasis not the fact that in the case before the Supreme Court the Food Inspector had purchased sample of sugar from the stock of sugar kept by the accused in the premises to be used in file preparation of tea sold to the customers in the tea stall run by the accused under the licence issued by the Corporation. Tea is an article of food in respect of which standard is prescribed under the rules framed under the Act. Therefore that aspect itself may be sufficient to distinguish the observations of the Supreme Court. He also invited our attention to MOHAMMED YAMIN V STATE OF UTTAR PRADESH AND ANOTHER 1972 F. A. C. 375 in which the Supreme Court has held that sale to a Food Inspector is a sale for the purposes of sec. 16 of the Act. He also wanted us to take a note of the fact that in the case before the Supreme Court sample of sugar was taken from a stock of sugar kept by the accused for manufacturing rab out of it and he was not a dealer in sugar. 16 of the Act. He also wanted us to take a note of the fact that in the case before the Supreme Court sample of sugar was taken from a stock of sugar kept by the accused for manufacturing rab out of it and he was not a dealer in sugar. It would have been quite an interesting field of inquiry as to how to reconcile the first mentioned two judgments of the Supreme Court with the last mentioned two judgments especially when on the one hand it is held that where the article of ford found to be adulterated was merely stored by the person who was not a distributor or seller thereof and who had not manufactured it for sale would not come within the inhibition of sec. 7 (i) because the expression store takes its colour from the expression preceding and succeeding it and it would only mean store for sale while on the other hand in all such cases when a Food Inspectortakes a sample which the person having the article of food is bound to sell and in every such case it can be said that apart from the person from whom the sample is taken not being a seller of the article and he had stored it for his own consumption yet once he sold the sample which in law he was bound to sell to the Food Inspector his action of selling the article would attract sec. 7 (i) read with sec. 16 Mr. Thakore however was not prepared to pursue this legal battle any longer. ( 9 ) MR. Thakore urged that accused No. 1 is an old man he has closed his business he had purchased the articles in bulk from Shashikant Ajmera who holds licence from the Corporation for selling condiments and spices. There is voluminous evidence on record to show that accused No. 1 used to purchase in bulk spices and condiments from accused No. 2 for using the same in preparing cooked food which as a part of his business he served to his customers. He even contended that he had purchased them under a warranty. We would presently examine that aspect However we would agree with the learned Magistrate that there was no such warranty. But Mr. He even contended that he had purchased them under a warranty. We would presently examine that aspect However we would agree with the learned Magistrate that there was no such warranty. But Mr. Thakore urged that if the obvious facts are kept in view that accused No. 1 is an old man that he has closed his business that he used to purchase the condiments and spices in bulk from accused No. 2 for the use in his boarding house it is a case in which the Court should take all these aspects into consideration and set aside the substantive sentence if necessary by increasing fine. We believe that in the facts of this case it would be worthwhile to set aside the substantive sentence by increasing fine to some extent. We believe a fine of Rs. 3000. 00 would meet the ends of justice. ( 10 ) IN respect of accused No. 2 Shashikant Ajmera there are two matters before the Court. One is Criminal Appeal No. 585 of 1974 preferred by the original complainant against his acquittal for an offence under sec. 16 read with sec. 7 (1) of the Act and Criminal Revision Application No. 274 of 1974 preferred by original accused No. 2 against his conviction and sentence under sec. 16 (1c) of the Act for having contravened sec. 14 of the Act. ( 11 ) TAKING the revision application filed by accused No. 2 first it appears that he is convicted for having contravened sec. 14 of the Act. Sec. 14 reads as under:14 No manufacturer distributor or dealer of 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. Explanation. In this section in sub-sec. (2) of sec. 19 and in sec. 20a. the expression distributor shall include a commission agent. Sec. 14 imposes an obligation on manufacturer distributor or dealer of any article of food to give a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Law casts an obligation on the manufacturer distributor and dealer of an article of food to give a warranty to the vendor to whom the article of food is sold. Law casts an obligation on the manufacturer distributor and dealer of an article of food to give a warranty to the vendor to whom the article of food is sold. Sec. 14 does not envisage any warranty being given by a vendor to the ultimate consumer who purchases the article of food from him. ( 12 ) THE question is whether accused No. 2 such he sold chilly powder and turmeric powder in bulk to accused No. 1 was obliged to give a warranty as contemplated by sec. 14. The first question is whether accused No. 1 is a manufacturer distributor or dealer of articles of food. Both Mr. G. N. Desai and Mr. Adhvaryu urged that accused No. 2 was certainly a dealer in the various articles of food he sold. Accepting that without further discussion it would mean that accused No. 2 who was a dealer sold articles of food to accused No. 1. Now the question is whether accused No. 1 is vendor of the article because obligation to give warranty cast on the manufacturer distributor or dealer while selling an article of food arises only when the article is sold to a vendor. Word vendor has to be understood in contra-distinction to consumer. Its grammatical meaning in have to be looked at and it means one who vends the article. In other words vendor is one who sells the article to ultimate consumer. The status of vendor may be acquired is relation to a person with whom he deals. If a bulk supplier sells it to the retailer it is a sale by a dealer to the vendor. In order to attract sec. 14 the purchaser from manufacturer distributor or dealer must be a vendor. In other words purchase must be for a further sale. That is the clearest meaning one call give to word vendor in sec. 14. It is in consonance with language and spirit of the language of sec. 14. Sec. 14 protects the consumer of articles of food from the greed or avarice of manufacturer distributor or dealer and sellers of articles of food by selling something which the purchaser never wanted to purchase that is selling an adulterated article of food. 14. It is in consonance with language and spirit of the language of sec. 14. Sec. 14 protects the consumer of articles of food from the greed or avarice of manufacturer distributor or dealer and sellers of articles of food by selling something which the purchaser never wanted to purchase that is selling an adulterated article of food. Now the bulk manufacturer or distributor or a dealer would ordinarily sell the articles to a retailer and retailer must be assured of the nature and quality of articles purchased by him so as to protect himself when he sells it to ultimate consumer if the article is found to be adulterated. In a prosecution for contravention of sec. 16 (19 (a) (i) read with sec. 7 (i) it would be a good defence if a warranty is produced and accepted by the Court in view of the provision contained in sec. 19 (2) (a ). The vendor who would be a retailer or a petty trader he may purchase in order to further sell in small quantity to ultimate consumer and therefore he must be assured of the nature and quality of the article of food which he purchased for further sale because otherwise he would be responsible for selling adulterated article of food if that article of food is found to be adulterated. The law has therefore cast an obligation upon the manufacturer distributor or dealer of any article of food when he sells such article to a vendor it must be done under a warranty in writing guaranteeing the nature and quality of the articles sold to the vendor The obligation imposed by sec. 14 arises in when article of food is sold by either manufacturer distributor or dealer and the purchaser is vendor. ( 13 ) TURNING to the facts of this case accused No. 2 was certainly a dealer in articles of food. He holds a license for that purpose. He sold chilly powder and turmeric powder to accuse No. 1. But let us recall here that accused No. 1 was not a vendor of these articles. 11 purchased the articles for consumption in his business namely preparing cooked food Accused No. 1 is not a vendor of the article. Mr. He holds a license for that purpose. He sold chilly powder and turmeric powder to accuse No. 1. But let us recall here that accused No. 1 was not a vendor of these articles. 11 purchased the articles for consumption in his business namely preparing cooked food Accused No. 1 is not a vendor of the article. Mr. Desai however urged that once accused No. 1 sold article of food to the Food Inspector he became a vendor and sale by accused No. 2 to accused No. 1 would be by a dealer to a vendor and accused No. 2 could be said to have contravened see. 14. There is no substance in this contention. In order to attract sec. 14 it must be shown that at the time when the article of food was sold by manufacturer distributor or dealer it was sale to a vendor and if it is so shown liability to give a warranty would arise. Subsequent sale by a person who was not a vendor would not render the original seller of the article liable for giving a warrant) which was not required to be given when the transaction was undertaken. To illustrate a dealer of article of food sold it to a consumer and both the parties accepted the position that at the relevant time dealer sold the article to a consumer. Consumer is certainly not a vendor. However subsequently the consumer sold that of that article to someone who needed it. Could it be said that by subsequent act the original dealer who at the time of transaction was not required to give warranty under sec. 14 would be liable for having contravened sec. 14 ? An act which was an innocent even which committed could not be styled as criminal by someone behaving in a manner other than that which was expected of him. It would be crime ex post facto. Sec 14 is therefore confined to transaction of sale between manufacturer distributor or dealer on the one hand and the vendor of the article on the other hand; and answer that description at the time of purchase and it would be vendor who would insist on warranty for his future protection. It would be crime ex post facto. Sec 14 is therefore confined to transaction of sale between manufacturer distributor or dealer on the one hand and the vendor of the article on the other hand; and answer that description at the time of purchase and it would be vendor who would insist on warranty for his future protection. ( 14 ) IN this case turmeric powder and chilly powder were purchased by accused No. 1 from accused No. 2 and accused No. 1 as not a vendor he was admittedly a consumer. Therefore sec. 14 would it be attracted and accused No. 2 could not therefore be convicted for contravention of see. 14 punishable able under sec 16 (1-c) of file Ads conviction and sentence are bad and they are liable to be quashed and set aside. ( 15 ) MR. Adhvaryu however urged that accused No. 2 could be said to have contravened sec. 16 (1) (a) (i) read with sec. 7 (i) for having sold an article of food namely chilly powder and turmeric powder to accused No. 1. Accused No. 1 purchased chilly powder and turmeric powder from accused No. 2 in bulk. Se then appalled the packets for use in his kitchen which was a kitchen of a boarding house. The cooks would be often picking up chilly powder and turmeric powder. file articles were not purchased by Food Inspector from sealed bags. If after accused No. 1 purchased turmeric powder and chilly powder and opened the packets and his cooks dealt with them and if they are found to be adulterated accused No. 2 would in no way be responsible for the same. No. sample was taken from the articles of food in possession of accused No. 2. And in this case one aspect may be kept in view to show that accused No. 2 would in no way be responsible in chilly powder and turmeric powder purchased by the Food Inspector from accused No. 1 are found the adulterated. Let us recall the certificate Exh. 21 issued by the Public Analyst in respect of turmeric powder. It shows presence of rice starch coming out or rice flour. What does it show A cook while picking up turmeric powder may have his hands soiled with rice flour which get mixed powder may turmeric powder. Let us recall the certificate Exh. 21 issued by the Public Analyst in respect of turmeric powder. It shows presence of rice starch coming out or rice flour. What does it show A cook while picking up turmeric powder may have his hands soiled with rice flour which get mixed powder may turmeric powder. of course in the case of chilly powder it is said that it contained prohibited dye. But for that accused No. 2 could not be held responsible because there is no evidence as to how the packet was handled after it was purchased by accused No. I from accused No. 2. Therefore the appeal by the original complainant against the acquittal of accused No. 2 for having contravened sec. 7 (i) punishable under sec. 16 (1) (a) (i) must fail. ( 16 ) ACCORDINGLY Criminal Appeal No. 585 of 1974 preferred by the original complainant is dismissed. Criminal Revisional Application No. 272 of 1974 preferred by the original accused No. 2 Shashikant Amarsibhai Ajmera is allowed and his conviction for an offence under sec. 16 (1-c) read with sec. 7 (i) of the Prevention of Food Adulteration Act and sentence of R. I. for one month and fine of Rs. 1000 are quashed and set aside. Fine if paid is ordered to be refunded. Criminal Revision Application No. 274 of 1974 preferred any original accused No. I is partly allowed and his conviction for an offence under sec. 16 (1) (a) (i) read with sec. 7 (i) is confirmed but his substantive sentence of R. T. for six months is modified and reduced to imprisonment till rising of the Court and a fine of Rs. 3000. 00 in default to suffer R. T. for six months. Orders accordingly. .