Judgment :- First the accused vendor entitled to succeed in his plea of warranty under section 19(2) of the Prevention of Food Adulteration Act, hereinafter referred to as ‘the Act’ notwithstanding the fact that he has not proved that the manufacturer from whom he purchased the article of food is duly licensed to sell the article of food which was sold to him? This is the only question canvassed before me in this revision against the concurrent verdict of guilty, conviction and sentence. 2. On facts, there appears to be no serious dispute. The petitioner is the 1st accused. He allegedly sold adulterated coriander powder to the Food Inspector at 12.30 P.M. on 13-5-1990. Even at the time of sale to the Food Inspector he took up a plea that he had purchased the article in sealed packets from a manufacturer who had issued to him the requisite warranty as insisted by section 19 of the P.F.A. Act. The courts below do not appear to have entered any finding of fact against the assertions of the vendor-petitioner. 3. But, the courts below took note of the fact that evidence was lacking on the crucial aspect that the manufacturer who allegedly sold the article to the vendor under a written warranty was duly licenced to manufacture and distribute coriander powder. Both the manufacturer and the vendor were prosecuted together. The averments in the complaint show clearly that there is an allegation/charge against the 2nd accused manufacturer that he was not duly licenced and has therefore committed violation of Rule 50 of the P.F.A. Rules. 4. Learned counsel for the petitioner contends that the petitioner is entitled to succeed in his plea under section 19 of the P.F.A. Act. According to him, it is not necessary that the vendor must prove that the article was purchased by him from a duly licenced manufacturer. The burden on the accused does not saddle him with the responsibility of going in search of the manufacturer to ascertain whether he is duly licenced. He therefore deserves to be acquitted, it is urged. 5. This contention cannot obviously stand. The Prevention of Food Adulteration Act is a piece of legislation intended to afford social protection against the un-scrupulous sale of adulterated articles of food. He therefore deserves to be acquitted, it is urged. 5. This contention cannot obviously stand. The Prevention of Food Adulteration Act is a piece of legislation intended to afford social protection against the un-scrupulous sale of adulterated articles of food. It endeavours to protect the basic right of an individual in the polity that he must be able to get un-adulterated articles for his use. 6. The P.F.A. Act does take note of the plight of innocent vendors who may have no role to play in the actual adulteration of the articles. To them, protection is offered under section 19(2) of the P.F.A. Act. In order to entitle a vendor to the protection under section 19(2) of the Act, it is obligatory that the must prove certain vital ingredients. He must first of all prove that the manufacturer, distributor or dealer from whom he purchased the article was duly licenced to manufacture, distribute and deal with such products. He must further prove that a written warranty in the prescribed form had been issued to him. It is also his burden to prove that he had, while the article was in his possession, properly stored the article and that he had sold the same in the same state as he purchased it. 7. If only the vendor satisfies the above requirements, can he claim the protection under section 19(2) of he P.F.A. Act. The business of vending articles of food is certainly an onerous and hazardous one. Such vendors can put the health of the community in jeopardy. Where he is found to sell adulterated articles it is no defence for him to contend that he did not adulterate the same. What is punishable is not merely adulteration of articles of food but equally the sale of adulterated articles of food. Even then the law in its compassion provides that such a vendor of adulterated article can also claim exculpation provided he satisfies the mandatory requirements of section 19(2) of h P.F.A. Act. 8. It is contended that the vendor is poor and helpless. How is he to prove that the manufacturer who is situated at a far away place and un-known to him has a licence? The vendor would be unaware about the requisite licence of the manufacturer. 8. It is contended that the vendor is poor and helpless. How is he to prove that the manufacturer who is situated at a far away place and un-known to him has a licence? The vendor would be unaware about the requisite licence of the manufacturer. In these circumstances it would be unfair and unjust to except him to prove that such manufacturer has a license, it is contended. I am not persuaded by this arguments of helplessness. Any person who indulges in such a business activity – of vending articles of food, must have the corresponding obligation in the interests of health of the community, at least to ensure that he sells articles only when they are manufactures, distributed and dealt with by duly licenced persons. That is the minimum which the law would expect from such a vendor. If he cannot ensure that, he should not probably engage himself in such a business. Acceptance of such plea of helplessness should not help guilty vendors to escape and imperil the health of the community. It must certainly be the unquestioned and un-avoidable obligation of his to purchase article of food from lilcensed manufacturer, dealer or distributor. He cannot purchase articles of food recklessly from all and sundry, without verifying whether such person is duly lilcensed to engage himself in such business. This is the minimum that he must ensure when he purchases the article in connection with his business. 9. In the instant case, the prosecution did make efforts to verify and ascertain whether the manufacturer had any such licence. They made a positive allegation that the manufacturer did not have a lilcence. The burden is certainly on the accused, in these circumstances, to prove that the manufacturer did have a license issued by the competent authority. I am, in these circumstances, unable to accept the argument that the burden is not on the accused to prove that he purchased the article from a duly licenced manufacturer, distributor or dealer. His argument that he is a petty vendor and poor, cannot be reckoned as sufficient to absolve him of the onerous responsibility to prove that he is entitled to the protection of section 19(2) of the P.F.A. Act. 10. Facts of each case may vary. The question whether the accused has discharged his burden under section 19(2), is certainly a question of fact. 10. Facts of each case may vary. The question whether the accused has discharged his burden under section 19(2), is certainly a question of fact. Whether that burden has been discharged would depend on the totality of the facts and circumstances. In a case where the prosecution does not allege that the manufacturer who had issue the warranty did not have a licence and consequently he is guilty of Rule 50 of the P.F.A. Rules that may be a relevant input. The burden on the accused to prove that the manufacturer was duly lilcenced, must certainly be considered consistent with the settled law relating to the burden on the accused claiming protection under any special defences, He need not prove his case to the hilt or beyond the shadow of reasonable doubt. His burden can be discharged on the lesser and inferior test of preponderance of possibilities and probabilities as in a civil case . He need not establish his defence as expected of the prosecution –beyond the shadow of reasonable doubt. Certainly he must discharge his burden to prove that his manufacturer was duly licenced atleast by that inferior test of preponderance of possibilities and probabilities. That has not been done by the accused, in this case. 11. Learned counsel for the petitioner contends that the decision reported in P. Unnikrishnan v. Food Inspector (A.I.R. 1995 S.C. 1983) lays down a contrary position of law. He is particular relies on paragraphs 4 and 5 of the said decision which I extract below: “4. The High Court, however, proceeded on the footing that the evidence of PW 1, Food Inspector, Cannanore shows that M/s Tajus Productions is a bogus non-existing manufacturing firm and therefore the accused is not entitled to the benefit the accused is not entitled to the benefit under Section 19(2) since he could not discharge the necessary burden. 5. As rightly contended by the learned counsel for the appellant, the High Court has not correctly appreciated the scope of section 19(2) and Rule 12-A and the necessary burden to be discharged by the accused. From the facts of the case it is clear that the representative of M/s. Tajus Productions, Cannanore came to the medical shop of the accused and sold the article to the accused and also gave a bill Ext.D1 which contained the warranty signed by somebody on behalf of the firm. From the facts of the case it is clear that the representative of M/s. Tajus Productions, Cannanore came to the medical shop of the accused and sold the article to the accused and also gave a bill Ext.D1 which contained the warranty signed by somebody on behalf of the firm. Admittedly, the article was in sealed tins which were not tampered with a label to the effect that it was a product of M/s. Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him. The further proof that the manufacturer from whom the accused purchased the article has been duly licensed. Depends on the facts of each case. In every case the accused cannot be expected to verify further whether the contents of the label on the tin and those in the bill containing the warranty are correct or not. In the instant case a representative of the firm situated at Cannanore, 2000 Kms. away, came to the shop of the accused, sold the tins with the label and also issued a bill having the warranty. The accused in turn sold the article in the same form to PW 3. At that juncture no knowledge about the non-existence of the firm could be attributed to the accused and the could not be expected to verify as to what the actual position was regarding the existence of the firm at a place which was 200 Kms. away. It may be that the firm was in existence and if for any reason subsequently the firm does not exist, the accused cannot be deprived of the defence to which he is entitled to under Section 19(2). Therefore, in the facts of the case, it must be held that the accused has duly discharged, the burden to the extent necessary under the above-mentioned provisions.” (emphasis supplied) Learned counsel for the petitioner further contends that the said decision of the Supreme Court in Unnikrishanan’s case was referred to in a later decision of a single bench of this Court reported in Sainudheen v. Food Inspector (2002 (1) KLT 703). The learned counsel relies on the following passage appearing in para 5 of the said order. “……. In this connection, it is also relevant to note that the decision of the Supreme Court in P. Unnikrishanan v. Food Inspector (1995 SCC (Crl) 823). The learned counsel relies on the following passage appearing in para 5 of the said order. “……. In this connection, it is also relevant to note that the decision of the Supreme Court in P. Unnikrishanan v. Food Inspector (1995 SCC (Crl) 823). In that case, the accused purchased the article from a representative of a firm which was 200 Kms. away. The evidence of the Food Inspector revealed that the firm was a bogus non-existing manufacturing firm. The Supreme Court held that the accused could not be expected to verify as to what the actual position was regarding the existence of a firm at a place which was 200 Kms. away”. What is the effect of the observations by the Supreme Court and this court. I am unable to agree that these observations lay down that the vendor who claims protection of section 19(2) does not have the obligation to prove that he had purchased the article from a duly lilcenced manufacturer, distributor or dealer. The specific mandate of section 19(2) (a) (i) is that the vendor must prove that he had purchased the article from a duly lilcenced manufacturer, distributor or dealer. It is not possible to lightly assume, as requested by the learned counsel that the said mandatory requirement is dispensed with or diluted by the observations extracted above. It would be myopio and puerile to assume that the mandate of section 19(2) (a) (i) shall not apply if the vendor claims that he had purchased the article of food under warranty, but from a manufacturer who has his place of business at a place which is more than 200 kms, away from the place of business of the vendor. That cannot obviously be the dictum. The Supreme Court had made the position clear that the question whether there is proof that the manufacturer from whom the accused purchased the article has been duly licenced depends on the facts of each case. Thereafter, reference was made to certain facts. It was stated at the end of such discussion that ‘therefore, in the facts of the case, it must be held that the accused has duly discharged the burden to the extent necessary under the above-mentioned provisions”. Thereafter, reference was made to certain facts. It was stated at the end of such discussion that ‘therefore, in the facts of the case, it must be held that the accused has duly discharged the burden to the extent necessary under the above-mentioned provisions”. I am able to understand the observations extracted from the Supreme Court decision as only laying down that in the facts and circumstances of that case the accused had succeeded in discharging his burden, consistent with the inferior burden on the accused to establish his defence, that the manufacturer from whom he purchased the article was duly licenced. I refuse to understand the said observations to mean what it is contended to be – that the vendor has no obligation to prove that the manufacturer is duly licenced, if such manufacturer happens to be bogus one having no licence at all – but having his place of business beyond 200 kms. from that of the vendor. Acceptance of such a contention would lead to diseasterous consequences. Every vendor would be able to contend that he had purchased the articles under a warranty furnished to him by a manufacturer though such manufacturer is not duly licenced and who may even be bogus. A person engaging himself in the business of vending food articles must certainly ensure, if he were to claim the protection of section 19(2) of the P.F.A. Act. That the manufacturer, distributor or dealer from whom he purchased the article did have the requisite licence under law. In this case, there is absolutely no evidence to show that the 2nd accused, the manufacturer, did have any such lilcence. 12. Mr. Justice N. Krishnan Nair, in the decision reported in Sainudheen’s case (2002 (1) KLT 703) has not laid down any contrary position of law. While considering the contention raised in Sainudheen’s case, the learned Judge had only referred the decision of the Supreme Court in Unnikrishanan’s case (1995 SCC (crl) 823), obviously to take note of the lesser and inferior burden on an accused to prove his defence under section 19(2) of the PFA Act. While considering the contention raised in Sainudheen’s case, the learned Judge had only referred the decision of the Supreme Court in Unnikrishanan’s case (1995 SCC (crl) 823), obviously to take note of the lesser and inferior burden on an accused to prove his defence under section 19(2) of the PFA Act. The observations Extracted above do not at all indicate that the learned judge understood the observations in Unnikrishanan by the Supreme Court to mean that the accused-vendor has no burden at all to establish that the manufacturer, distributor or dealer from whom he purchased the article was a duly lilcenced one, if such manufacturer were carrying on business at a place situated more than 200 kms. away. 13. The contention raised must hence necessarily fail for the reason that the petitioner-accused has not succeeded in showing that the 2nd accused, the manufacturer, from whom he allegedly purchased coriander powder sold by him to the Food Inspector did have the requisite licence –even adopting the most lenient of standards. 14. The fact that the 2nd accused who also faced indictment has not entered appearance so far, is of no crucial significance, according to me. The case against him has been split up. The said case has not so far been disposed of, contends the counsel. The 2nd accused has not appeared so far in the split up case also, points out the counsel. I will assume that these submissions are correct. But, the question whether the manufacturer who is also facing indictment has appeared or not, according to me, is irrelevant while considering the plea of the petitioner for protection under section 19(2) of the PFA Act. 15. No other contentions have been raised. The sentence imposed is the minimum that can be imposed under law. There is hence no challenge raised against the sentence imposed also. 16. I am in these circumstances satisfied that the impugned concurrent verdict of guilty, conviction and sentence do not warrant interference. The challenge fails. 17. In the result, (a) this revision petition is dismissed. (b) the impugned verdict of guilty, conviction and sentence are upheld. 18. The learned Magistrate shall take necessary steps for execution of the impugned sentence. The petitioner shall appear and his sureties shall produce him before the court below on 1-6-2004 for execution of the sentence. The challenge fails. 17. In the result, (a) this revision petition is dismissed. (b) the impugned verdict of guilty, conviction and sentence are upheld. 18. The learned Magistrate shall take necessary steps for execution of the impugned sentence. The petitioner shall appear and his sureties shall produce him before the court below on 1-6-2004 for execution of the sentence. Needless to say, the learned Magistrate shall be at liberty to take necessary action against the petitioner and his sureties under section 446 Cr.P.C., if the petitioner does not appear before the learned Magistrate as directed above.