Judgment :- 1. Three persons were prosecuted for the offence under S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'), and all of them were acquitted by the trial Magistrate. Hence this appeal by the Food Inspector-complainant. 2. On 25-3-1983, a Food Inspector purchased three bottles of synthetic vinegar from the third accused, who was salesman under second accused in a shop called "National Baking Company". They were sealed bottles and each of them contained identical label declaration. Hence each bottle was treated as part of the sample. The Food Inspector wrapped the bottles separately in accordance with the procedure laid down. When Public Analyst analysed one part of the sample, it was found adulterated as it was not in conformity with the standard prescribed for the article. Second accused informed the Food Inspector that the bottles of synthetic vinegar were purchased by him from the first accused who was proprietor of "Jai Medical Laboratory", Pazhayannur (Trichur) as per Ext. P15 cash bill dated 27-1-1983. Hence a complaint was filed against the three accused. 3. The learned Magistrate treated Ext. P15 as a warranty as per proviso to S.14 of the Act. On the strength of that document alone, the trial Magistrate rushed to the conclusion that "A2 and A3 are clearly protected under S.14 and S.19(2) of the Act". He further found that there is no evidence as against the first accused, apart from the oral evidence of Pw.l. to show that he is the proprietor of Jai Medical Laboratory. Alternatively, the Magistrate held that even if first accused is the proprietor of the said laboratory "it cannot be presumed for a moment that he is the person responsible for the manufacture and sale of synthetic vinegar in question". Hence he acquitted all the accused. 4. A serious irregularity was committed by the trial Magistrate by not examining the accused as per S.313 of the Code of Criminal Procedure. S.313(1) consists of two parts. In the first part court has a discretion. He may examine the accused or he need not examine the accused at all during that stage. But in the second part, it is mandatory that the Court "shall after the witnesses for the prosecution have been examined", question the accused generally on the case. S.313(1) consists of two parts. In the first part court has a discretion. He may examine the accused or he need not examine the accused at all during that stage. But in the second part, it is mandatory that the Court "shall after the witnesses for the prosecution have been examined", question the accused generally on the case. Examination of the accused is not intended to be an idle formality, it has to be carried out in the interest of justice and fair play, and it cannot be obviated when there are circumstances in evidence against the accused (Vide Rama Sankar v. State of West Bengal, AIR 1962 SC. 1239). It is now well neigh settled that the provision for examination of accused is applicable to all trials including summons cases and also in summary trials (Chacko George v. State of Kerala, 1968 KLT 219). In this case Magistrate circumvented the said mandatory requirement by saying that he did not find any circumstance in the prosecution evidence to be put to the accused. It is not understandable as to why the Magistrate could not find any such circumstance in the prosecution evidence. This is a case in which four witnesses were examined and 19 documents were marked on the side of the prosecution, It is distressing to note that the Magistrate could not find a single circumstance which required explanation of the accused. The cavalier manner in which the trial Magistrate obviated the mandatory requirement in S.313 of the Code deserves only disapprobation. 5. Ext. P15 cash bill is a warranty as per proviso to S.14. The stand of the second and third accused that the synthetic vinegar sold to the Food Inspector was from the consignment referred to in Ext. P15 can be accepted on broad probabilities. But an accused cannot be acquitted merely on production of the warranty and on the further proof that the article was sold in the same state as he purchased it. There is one more postulate in the defence envisaged in S.19(2) of the Act. He must further prove that the person from whom he purchased the article has been duly licensed to sell the article. There is one more postulate in the defence envisaged in S.19(2) of the Act. He must further prove that the person from whom he purchased the article has been duly licensed to sell the article. Of course this last postulate is conditional on the fact that a licence must have been prescribed for the sale of the article Production of warrantor is thus only one of the steps in aid for building the defence contemplated in S.19(2). If an accused succeeds only in proving that the article of food was covered by a warranty, he does not succeed in his defence, though proof of warranty may rope the warrantor also in the catch of penal liability. 6. What I have now to consider, therefore, is whether a licence has been prescribed for sale of synthetic vinegar. Learned counsel for the appellant advanced a contention that synthetic vinegar, being a preservative requires licence for the sale thereof. This contention needs examination because the Food Inspector took sample in this case on 25-3-1983. Licence is now required for sale of any article of food. But the position was different before 24-9-1985 when an amendment was brought in R.50 of the Prevention of Food Adulteration Rules. That Rule (which was brought into operation with effect from 24-9-1985) reads as follows: "No person shall manufacture, sell; stock, distribute or exhibit for sale any article of food except under a licence". But the Rule, before its amendment, required licence only for certain categories of food articles enumerated in the rule. In clause (k) of R.50(1) (as it stood then), the following categories were incorporated "flavouring agents, anti-oxidants, emulsifying and stabilising agents, and preservatives permitted for use in food and container wrappers". Learned counsel contended that synthetic vinegar is a "preservative" and hence it fell within clause (k) of Rule (I). R.53 contains a list of preservatives, and "vinegar or acetic acid" have been included in the said list. According to learned counsel, synthetic vinegar is also vinegar and is hence a preservative. The argument appealed to me in the first instance. But on careful scrutiny I entertain doubt whether synthetic vinegar can be included within the general terra "vinegar". Vinegar is defined in item A.20 (in Appendix B of the Rules) and synthetic vinegar is defined in item A 20.01. Both definitions are substantially different from each other. The argument appealed to me in the first instance. But on careful scrutiny I entertain doubt whether synthetic vinegar can be included within the general terra "vinegar". Vinegar is defined in item A.20 (in Appendix B of the Rules) and synthetic vinegar is defined in item A 20.01. Both definitions are substantially different from each other. The word 'synthetic vinegar', no doubt, sounds synonymous with vinegar. There maybe common features between the two and the incidences may also be similar. Yet the former cannot be equated with the latter, at least for the purpose of the Act, in view of the substantial difference in the two definitions. The result is that synthetic vinegar cannot be treated as an article of food which required licence for the sale thereof until 24-9-1985. Hence the second and third accused can get the benefit of the defence embodied in S.19(2) of the Act, as two conditions in the sub-section have been satisfied in this case. Pw. 2 admitted that synthetic vinegar was sold by the third accused in sealed bottles. I presume that the article was sold in the same state as he purchased it. There is no question of any improper storing of the article in this case. 7. For the said reasons, I am not inclined to interfere with the order of acquittal as against the second and third accused. But the acquittal of the first accused cannot be maintained on the strength of the above finding. The reasons advanced by the trial Magistrate to acquit him are unsustainable. The observation that "apart from the oral evidence of Pw. 1, no extraneous evidence is forthcoming to show that the first accused was the proprietor of Jai Medical Laboratory" is devoid of merits. There are a few formidable circumstances in evidence in favour of the prosecution case that the first accused is the proprietor of the said laboratory. The first accused is described in the complaint as "the proprietor, Jai Medical Laboratory, Pazhayannur, Trichur District". Summons was issued by the trial court in the said address only. First accused entered appearance pursuant to the said summons. He has no case that summons has been sent to him in wrong address. The Food Inspector gave notice as per S.11(1)(a) of the Act to the person whose address was disclosed under S.14A. That notice was acknowledged by the first accused as evidenced by Ext. First accused entered appearance pursuant to the said summons. He has no case that summons has been sent to him in wrong address. The Food Inspector gave notice as per S.11(1)(a) of the Act to the person whose address was disclosed under S.14A. That notice was acknowledged by the first accused as evidenced by Ext. P11 postal acknowledgment receipt in which be has described himself as proprietor of Jai Medical Laboratory, Pazhayannur. That apart, the Local (Health) Authority sent the documents referred to in S.13(2), in the address shown in Ext. P15. Those documents were acknowledged by the first accused as evidenced by Ext. P18 postal acknowledgment receipt. First accused put his signature in Ext. P18 also describing himself as proprietor of Jai Medical Laboratory, Pazhayannur. Those facts were sworn to by Pw. 2 in his testimony. There was no challenge in cross examination on those aspects. 8. As the trial Magistrate has not examined the first accused as per S.313 of the Code, I cannot use those items of evidence without affording him an opportunity to explain. The course open to me is to remit the case for fresh disposal of the case as against first accused. 9. In the result, I set aside the order of acquittal as against the first accused and remand the case to the Chief Judicial Magistrate, Palghat for disposal of the case afresh. I direct the Magistrate to consider the evidence already on record, (i. e. no de novo trial is necessary). He shall examine the first accused under S.313, with reference to the incriminating items of evidence against him for the purpose of affording him an opportunity to explain. If the first accused wants to adduce evidence, opportunity shall be given to him for that purpose. If the court finds it necessary to exercise power under S.311 of the Code, it is open to the trial court to do so. Subject to such directions and observations, the case is remanded to the trial court as against the first accused. The Crl. Appeal is disposed of, as above.