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2004 DIGILAW 488 (GAU)

Apurba Poddar v. State of Assam

2004-08-26

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. In the offence report, which gave rise to CR Case No. 308c/2001 of the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati, the case of the complainant, namely, Khagendra Nath Goswami, Food Inspector (Senior) was, in brief, thus : 29.11.1999, the complainant, accompanied by his office peon, visited the premises of M/s Bichitra Traders, situated at Fancy Bazar, Guwahati, and met there the accused-petitioner No. 1, namely, Apurba Podda, who disclosed his identity as Manager of the said business concern with the accused-petitioner No. 2, namely, Puspa Rani Poddar as the proprietress thereof. Suspecting the quality of the spice found kept stored for sale for human consumption, at the said premises, under the brand name "Curry Power (Cook me Brand)", the complainant served a notice, in Form VI, to the accused-petitioner No. 1 in order to take sample of the said curry powder for analysis. The complainant, then, purchased 12 sealed packets of the said curry powder, containing 50 grams in each packet, for the purpose of analysis. In accordance with the provisions of the Prevention of Food Adulteration Act (in short, the 'PFA Act') and the Prevention of Food Adulteration Rules framed hereunder (hereinafter referred to AS "PFA Rules"), the complainant divided the said 12 packets of curry powder into three parts, sealed the same and sent one such part of to the Public Analyst for analysis following the provisions of the PFA Rules. On analysis, the sample in question, was found adulterated. After obtaining the requisite sanction for prosecution of the accused-petitioners, the offence report was laid. However, at the time of collection of the said sample, the accused-petitioner No. 1 claimed that they had purchased the said curry powder from M/s Krishna Chandra Dutta (Spice) Ltd., 235, Maharishi Debendra Road, Calcutta-7, who were manufacturer of the said curry powder and produced Bill No. ST/1517 dated 15.9.1999, in support of their contention that they had purchased the said curry powder from M/s Krishna Chandra Dutta (Spice) Pvt. Ltd. Aforementioned. Since the identity of M/s Krishna Chandra Dutta (spice) Pvt. Ltd. had already been disclosed as the manufacturer of the said curry powder, the said manufacturer was impleaded as the accused No. 3 in the offence report aforementioned. 2. Since the identity of M/s Krishna Chandra Dutta (spice) Pvt. Ltd. had already been disclosed as the manufacturer of the said curry powder, the said manufacturer was impleaded as the accused No. 3 in the offence report aforementioned. 2. In course of time, all the accused aforementioned appeared in the said case, and the learned Judicial Magistrate, 1st Class, Guwahati, who came in seisin of the case, fixed the case for recording evidence before charge. After recording the evidence of the Food Inspector and the said office peon as witnesses, the learned Court below vide order, dated 31.5.2003, declined to discharge the accused-petitioners and explained particulars of offences under Section 7/16/17 of the PFA Act to the accused-petitioners. All the accused persons pleaded not guilty thereto and claimed to be tried. It is this order, which stands impugned in the present revision by the vendor, namely, Apurba Podda and the Proprietress of the said business concern, namely, M/s Bichitra Traders aforementioned as the accused-petitioners Nos. 1 and 2 respectively. 3. I have heard Mr. D.K. Bhattacharyya, learned senior counsel, assisted by Mr. S. Chakraborty, learned Counsel, appearing for the accused-petitioners, and Mr. F.H. Laskar, learned Addl. Public Prosecutor. 4. Mr. Bhattacharyya, learned senior counsel, submits that the two accused-petitioners purchased the said packets of curry powder from its manufacturer, namely, M/s Krishna Chandra Dutta (Spice) Ltd, aforementioned and the manufacturer, while selling the said curry powder, gave a warranty. The existence of this warranty, contends Mr. Bhattacharyya, and the face that the said packets of curry powder were sold to the complainant by the accused-petitioner No. 1, namely, Apurba Poddar in the same conditions in which the packets were purchased from the manufacturer thereof was not disputed and, hence, neither the vendor nor the proprietress of the said proprietary concern, namely, Puspa Rani Poddar (i.e. accused-petitioner No. 2) were liable for prosecution; but the learned Court below chose not to discharge the accused-petitioners and explained to them the particulars of offences under Sections 7/16/17 of the PEA Act. Having proceeded to try the case by adopting the warrant procedure, the learned Court below, submits Mr. Bhattacharyya, ought to have discharged the accused, for, no evidence existed on the record to convict the accused-petitioners even if the evidence would have been left unrebutted by the defence. 5. Controverting the above submissions made on behalf of the accused-petitioners, Mr. Laskar, learned Addl. Bhattacharyya, ought to have discharged the accused, for, no evidence existed on the record to convict the accused-petitioners even if the evidence would have been left unrebutted by the defence. 5. Controverting the above submissions made on behalf of the accused-petitioners, Mr. Laskar, learned Addl. Public Prosecutor, has submitted that a person accused of an offence under the PFA Act can be tried summarily and the learned Court below committed no error in explaining the particulars of the offence aforementioned to the accused-petitioners. 6. Before considering the question as to whether the learned Court below was justified in explaining the particulars of the offence as indicated hereinabove, it is essential to take note of the provisions of the PFA Act and the PFA Rules, which deal with the defence of warranty. 7. For proper appreciation of the definition of warranty, it is essential to understand as to what a "warranty" means. It is Rule 12-A which describes as to what a warranty is. According to Rule 12-A, "Every manufacturer, distributor or dealer, selling an article of food, to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form VI-A." 8. It is in Form No. VI-A that a warranty is required to be given, according to From No. VI-A, the warranty shall be under the signature of the manufacturer/distributor or dealer, which shall certify as follows : I/we hereby certify that food/foods mentioned in this invoice is/are warranted to be of the nature and quality which it/these purports/purport to be. Signature of manufacturer/ Distributor/Dealer. 9. Thus, a warranty is nothing, but a certificate given by the manufacturer, distributor or dealer to a vendor as regards the nature and quality of the article of food given/sold to the vendor. When a person, who has received an article of food, under a warranty, sells the same, does he commit any offence? The answer is furnished by Section 19 of the PFA Act. The relevant provisions of Section 19reads as follows : (1) ... When a person, who has received an article of food, under a warranty, sells the same, does he commit any offence? The answer is furnished by Section 19 of the PFA Act. The relevant provisions of Section 19reads as follows : (1) ... (2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves - (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..." 10. From a bare reading of the above provisions of Section 19, it is abundantly clear that if a vendor of an article of food had purchased the article of food from the manufacturer with a warranty in the prescribed form and if the article of food, while in the possession of the vendor, was properly stored and that the article of food was sold in the same state in which it was purchased, such a vendor shall not be deemed to have committed an offence pertaining to the sale of the adulterated or misbranded article of food. 11. From a careful reading of the relevant provisions of Section 19, it also becomes transparent that a warranty, if available to a vendor in the prescribed form and if the vendor proves that while he was in possession of the article of food, in question, he had kept the same properly stored in same condition in which he had purchased it, is a complete defence to the prosecution of such a vendor under the PFA Act. 12. In the case at hand, the evidence of the Food Inspector and his office peon, when read together, makes it abundantly clear that the accused-petitioner No. 1 had produced a bill, dated 15.9.1999, pertaining to the purchase of the said curry powder from the manufacturer thereof, namely, M/s Krishna Chandra Dutta (Spice) Ltd. The Invoice bearing the bill was proved by P.W. 1 by Ext. 'La' from item 11 of Ext. 'Ka' was, admittedly, in respect of the said curry powder. 'La' from item 11 of Ext. 'Ka' was, admittedly, in respect of the said curry powder. On the bottom portion of Ext. 'Ka' there is a warranty given by the manufacturer concerned, namely, the accused No. 3. The warranty, so given, reads, "we hereby certify that the foods mentioned in this invoice are warranted to be nature and quality which its purport to be." This warranty is, undoubtedly, a warranty in terms of Rule 12-A. 13. The defence of warranty, as envisaged by Section 19 and as indicted hereinabove, can be available to a vendor if the vendor satisfied the following three conditions: (1) that the manufacturer/distributor/dealer has given a warranty in the prescribed form, (2) that the article of food, while in the possession of the vendor, remained properly stored, and (3) that the vendor sold the article of food in the same state in which he had purchased it. 14. Since manufacture of curry powder does not, admittedly, require any licence, it clearly follows that in the present case, for sale of curry powder, no licence was required; hence, the appellant-petitioner No. 1, being the vendor, and appellant-petitioner No. 2, being the proprietress of the business concern, were required to prove three conditions aforementioned if they were to avail the defence of warrant. 15. Bearing in mind the above aspects of the matter, when one reverts to the evidence of the Food Inspector and takes the same into account, it cannot escape notice that in his cross-examination by the defence on Ext. Ka(1), the Food Inspector (PW-1) admitted that the articles of food were in sealed packets and the said packets were neither tore nor were the same damaged in any manner and that the same were intact. The evidence, so elicited by the defence, establishes that when the curry powder, in question, was in possession of the present appellant-petitioners, the same was properly stored and sold in the same state in which it was purchased. 16. It, thus, emerges from the testimony of PW -1 that the accused No. 3 told the curry powder under a warranty and while the said curry powder remained in the possession of the appellant-petitioners, the same was kept properly stored and sold to the Food Inspector in the same state in which it was purchased. 17. 16. It, thus, emerges from the testimony of PW -1 that the accused No. 3 told the curry powder under a warranty and while the said curry powder remained in the possession of the appellant-petitioners, the same was kept properly stored and sold to the Food Inspector in the same state in which it was purchased. 17. What, thus, surfaces from the above discussion is that the defence of warranty, as envisages by Section 19, was completely established by the appellant-petitioners. I have already indicated hereinabove that if the conditions precedents for availing of the defence of warranty are satisfied by a vendor, it is a complete defence to the prosecution of such a vendor under the provisions of PFA Act and the PFA Rules. (Reference may be made, in this regard, to 1995 CriLJ 3638 (Supreme Court Legal Aid Committee Representing under Trial Prisoners v. Union of India and Anr.) 18. The question, now, is as to whether in the face of the evidence on record and the law relevant thereto, the learned trial Court was justified in not discharging the appellant-petitioners and I n explaining the particulars of the offence aforementioned to the appellant-petitioners? 19. While considering the crucial question, posed above, it is of immense importance to note that as laid down by Section 16-A of PFA Act, an offence under the PFA Act shall be, ordinarily, tried summarily; but, if at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and, thereafter, recall any witness, who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. 20. In the present case, the learned Court below, admittedly, proceeded with the Complaint Case aforementioned in the warrant procedure manner. 20. In the present case, the learned Court below, admittedly, proceeded with the Complaint Case aforementioned in the warrant procedure manner. Section 245(1) Cr.P.C., which relates to trial of warrant cases by Magistrates if the same are instituted otherwise than on police report, clearly lays down that if, upon taking all the evidence, which the prosecution may adduce, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. In face, Sub-section (2) of Section 245 makes it clear that nothing, in Section 245, shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, the Magistrate considers the charge to be groundless. 21. In the case at hand, in the face of what have been discussed above, there can be no escape from the conclusion that the two appellant-petitioners having established the defence of the warranty as indicated hereinabove, and the accused No. 3, who is the manufacturer of the said curry powder, having not disputed the fact that the warranty was given by them as manufacturer, were not liable for prosecution. In other words, since the evidence on record reveals that the said packets of curry powder were purchased under a warranty and having so purchased, the accused-petitioner had stored the curry powder in the same state in which they had purchased the same and, after having kept the same in the manner as aforesaid, when they sold the said curry powder to the Food Inspector in the same State in which they had purchased, it becomes clear that if the evidence on record remains unrebutted even then, the evidence, so adduced, would not warrant conviction of the accused-petitioners. In a situation, such as this, the accused-petitioners were entitled to discharge. However, the learned trial Court chose, as the impugned order reflects, not to discharge the accused-petitioners and explained to them the particulars of the offence aforementioned. 22. In a situation, such as this, the accused-petitioners were entitled to discharge. However, the learned trial Court chose, as the impugned order reflects, not to discharge the accused-petitioners and explained to them the particulars of the offence aforementioned. 22. Without entering into the controversy as to whether the learned Court below, having chosen to follow the warrant procedure for the trial of the accused-petitioners, could have altered the said procedure to the procedure meant for summary trial, what is of utmost importance to note and what is glaring to the eyes is that the trial of the two accused-petitioners shall be a mere formality, for, the accused-petitioners, having established the defence of warranty in terms of Section 19, would, eventually, be entitled to acquittal. 23. In the Suresh Chandra Das v. State of Meghalaya reported in AIR 1971 A&N 146, the Court has clearly laid down though the prosecution can adduce additional evidence even after framing of the charges, a Court should not, in anticipation of subsequent production of evidence, frame charge if on the basis of the evidence on record a case for discharge is made out; more so, when an application for quashing of the proceedings is made before the High Court under Section 561(old) now under Section 482 Cr.P.C. The relevant observations may be quoted here-in-below: ...In other words, it is not closed to the prosecution to bring in further a better evidence. In this view of the matter, Mr. Sarma submits that the charge should not be quashed at this stage. This submission were to be accepted, in every case that would come for quashing of a charge under Section 561-A, the prosecution could contend that although the evidence or materials at that stage before the Court might not be sufficient or even non existent, the prosecution could subsequently adduce other evidence and therefore a Court should not, in anticipation of subsequent production of evidence, exercise its jurisdiction to quash the proceedings. That position if accepted, would make Section 561-A completely nugatory. When a application is made under Section561 -A Cr.P.C., a Court is required to consider whether on the existing materials before the trial Court, a charge could be framed in consonance with the principles laid down in R.P. Kapur v. State of Punjab 1960 CriLJ 1239 . 24. I find myself in complete agreement with the proposition of law laid down in Suresh Ch. 24. I find myself in complete agreement with the proposition of law laid down in Suresh Ch. Das (supra) and I am firmly of the view that in the face of the fact that the evidence on record, if remains unrebutted, would not warrant conviction of the accused-petitioners, it will be abuse of the process of the Court if the learned trial Court is allowed to proceed with the case any further against the accused-persons. This Court, therefore, in exercise of its inherent powers under Section 482 Cr.P.C., must step in. 25. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 31.05.2003 aforementioned, to the extent that the same warrants trial of the present two accused-petitioners is hereby quashed. The trial Court shall, however, proceed against the accused No. 3 in accordance with law. 26. With the above observations and directions, this revision shall stand disposed of. 27. Send back the LCR.