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2004 DIGILAW 325 (GAU)

Ram Bhagat Agarwalla v. State of Assam

2004-05-10

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. S.S. Sarma, learned Counsel for the Petitioner and the learned Public Prosecutor, Assam. 2. The Petitioner before us, Sri Ram Bhagat Agarwalla, stands convicted for the offence under Section7 / 16 of the Prevention of Food Adulteration Act, for short the Act. On 5.2.89, the Food Inspector collected samples of Chili powder, which were in sealed packets, containing 50 grams each. The samples were sent for analysis and a report was received to the effect that the samples is adulterated as it contains coal-tardye. The Petitioner was therefore tried, convicted and sentenced. 3. In the present case, the collection of sample and the Public analyst report is not in dispute. The Petitioner came up with a plea that the sample in question was purchased by him from Raj Kumar Mahato and it was stored for sale and sold in the same condition and, as such, he is protected under Section 19(2) of the Act. The Petitioner examined himself and proved and exhibited the cash memo etc. It may be mentioned that on the prayer of the Petitioner, the manufacturer was also arrayed as a party and process was issued by the Court. However, as no process could be served, the trial did not proceed against the said manufacturer. The protection under Section 19(2) was refused on the following counts (1) that the cash memo in question was not shown to the Food Inspector at the time of collection of sample; (2) that the accused has failed to establish that Raj Kumar Mahato has a licence to manufacture Chili powder. 4. Section 14-A of the Act reads as follows: Vendor to disclose the name, etc. of the person from whom the article of food was purchased. Every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food. Section 14-A thus laid down a duty on the part of the accused to disclose the name of the manufacturer from whom he has purchased the sample so that the manufacturer or the distributor, as the case may be, can be prosecuted against. Section 14-A thus laid down a duty on the part of the accused to disclose the name of the manufacturer from whom he has purchased the sample so that the manufacturer or the distributor, as the case may be, can be prosecuted against. However, mere fact that the cash memo was not produced by the vendor at the time of taking the sample, would it deprive the Petitioner from raising the plea available to him under Section 19(2) of the Act? It is our general knowledge that the sample is collected by the Food Inspector on a surprise visit or check up and no prior information is given to the shop keeper/retailer. On many occasions, the owner or the Manager are not available when the sample is collected and only the salesman are looking after the retail shop and they may not be in a position to produce the cash memo. Thus, the inability to produce the cash memo at the time of taking the sample, cannot deprive the accused from taking out the defence plea available to him under Section 19(2) of the Act., Section 19(2) also no where provides that the defence available therein is subject to the compliance of Section 14-A of the Act. 5. As regards the other conditions under Section 19(2) are concerned, the Petitioner accused has categorically stated that the article of food was stored and sold in the same condition in which he had purchased. The Food Inspector has also deposed that the sample of chili powder was in sealed packets of 50 grams each and as many as 12 packets were purchased by him. The seals are not tempered with. The name of the manufacturer Raj Kumar Mahato along with the brand name, Horse Branch and the address of the manufacturer were all mentioned on the packets. The cash memo produced by the Petitioner is also in the name of Raj Kumar Mahato, i.e. the same name which appears in the sample packets. 6. As regards the non-production of the manufacturer licence, the learned Counsel has fairly submitted that the Petitioner being a petty retailer, he could not produce the manufacturer's licence. The requirement of production of the manufacturer's licence was considered by the Apex Court in the case of P. Unnikrishnan v. The Food Inspector, Palghat Municipality AIR 1995 SC 1983 , wherein the Apex Court held: 6. The requirement of production of the manufacturer's licence was considered by the Apex Court in the case of P. Unnikrishnan v. The Food Inspector, Palghat Municipality AIR 1995 SC 1983 , wherein the Apex Court held: 6. 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 12A 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, Connanore came to the medical shop of the accused and sold the article to the accused and also gave a bill Ext. D 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, 200 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 P.W.-3 At that juncture no knowledge about the nonexistence of the firm could be attributed to the accused and he 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. For the reasons stated above, we set aside the conviction and sentence awarded and allow the appeal. 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. For the reasons stated above, we set aside the conviction and sentence awarded and allow the appeal. The fine, if already paid, shall be refunded. The Appellant is on bail. The bail bonds stand discharged. 7. The above decision was relied upon by this Court in Criminal Revision No. 618/93 and 624/93. We, therefore, hold that for non-production of the manufacturer licence by the retailer, the benefit of Section 19(2) cannot be refused and the retailer shall be held to have established his defence, if other conditions are compiled with or met. 8. In view of what has been stated above, and considering the evidence and materials on record, we hold that the Petitioner has been able to establish his defence under Section 19(2) of the Act and, as such, he cannot be held liable or guilty for commission of the offence under Section 7 read with Section 16 of the Act. Accordingly, the conviction and sentence is set aside and the accused is acquitted and set at liberty forthwith. The accused need not surrender to the bail bond. Send down the records.