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Gauhati High Court · body

2005 DIGILAW 207 (GAU)

Chandan Das v. State of Assam

2005-03-11

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. All the above three revisions have been heard together and disposed of by this common judgment as the question of law raised in these revisions are identical. 2. Heard Mr. J M Choudhury, Mr. B B Narzary and Mr. S S Sharma, learned counsel appearing for the petitioners and Mr. F H Laskar, learned Public Prosecutor for the respondents. 3. The facts of Criminal Revision No. 394/2000 are detailed to appreciate the question of law raised. The petitioners before us are the vendor and owner of grocery shop M/S Mahadev Store. The Food Inspector collected sample of 'besan' by purchasing 600 gm of 'besan' against payment and after issuance of notice in Form No. VI the sample was sent to the public analyst who opined that the sample is adulterated. The prosecution was launched against the vendor as well as the owner of the said grocery shop. The trial court convicted the vendor as well as the owner of the shop for selling adulterated 'besan', which as per the public analyst report contained powdered rice and powdered pea to the extent of 5% each. The report of the public analyst has not been challenged. 4. During trial, the accused persons took up the plea of warranty by stating, inter-alia, that they had purchased the 'besan' in question from M/s Ambika Trading Company, Ganeshguri, Guwahati vide cash memo Ext. A and this cash memo Ext. A was shown to the Food Inspector at the time of taking sample but no cognizance was taken by the Food Inspector. It was further stated that the 'besan' was kept for sale in the same condition in which it was purchased by them and as such the petitioners are not liable for conviction. The trial court as well as the appellate court rejected the plea of warranty and hence in the present revision the question that has come up for consideration is regarding the scope and ambit of the plea of warranty and the requirements of law which the vendor is required to establish for protection. 5. In all the three revisions before us, the only point raised is regarding the protection under Section 19(2) of the Prevention of Food Adulteration Act. 5. In all the three revisions before us, the only point raised is regarding the protection under Section 19(2) of the Prevention of Food Adulteration Act. Section 19(2) reads as follows : - "(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 - (a) that he purchased the article of food -- (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." 6. Thus, the basic requirement as per Sub-clause (a) is that the vendor must establish that he had purchased the article of food from the manufacturer, distributor or dealer. In case a licence is prescribed for the sale of the article in question, it must be from the licenced manufacturer, distributor or dealer. In the present cases, all the articles of food were meant for resale and there was no question of purchasing from licensed manufacturer or distributor or dealer as no licence is prescribed for the sale thereof. 7. The next requirements as per Clause 2(a) is regarding written warranty in the prescribed form. In Criminal Revision 212/2000 the trial court refused to accept the cash memo as warranty by stating 'in the instant case the bill, if compared with the warranty form prescribed under Rule 12(a)(Form VI A), cannot be said to be a valid warranty. It is a settled law that mere production of the cash memo only at the time of cross-examination is not sufficient and the accused cannot be held to have discharged his burden under Section 19(2) of the Act'. We may have a look at the provisions of Section 14 of the Act, which reads as follows : - "14. It is a settled law that mere production of the cash memo only at the time of cross-examination is not sufficient and the accused cannot be held to have discharged his burden under Section 19(2) of the Act'. We may have a look at the provisions of Section 14 of the Act, which reads as follows : - "14. Manufacturers, distributors and dealers to give warranty - No (manufacturer or distributor of, or dealer in) 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 : (Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this Section.)" 8. We find that Section 14 was amended by the 1976 Amendment Act and the pre 1976 provisions provided that the warranty must be in the prescribed form. However, the representatives of the retailers made a representation that the manufacturer, distributor or dealers are not following the requirement of law by giving the warranty in the prescribed form and as a result the vendors are to suffer. The Committee thereafter recommended for inserting the proviso to Section 14 to the effect that the bill, cash memo or the invoice given by the manufacturer, distributor or dealer in respect of any article of food shall be deemed to be a warranty. Although form VIA of Appendix A to the Prevention of Food Adulteration Rules provides the form in which the warranty is to be issued, in view of the amended provisions of Section 14 of the Act, it has been provided that the cash memo or bill shall be deemed to be a warranty. Thus, Rule 12A, cannot override the provisions of Section 14 of the Act and we, therefore, have no hesitation to hold that even if the vendor is unable to produce the warranty in form VIA, the bill or cash memo given to him by the distributor or dealer will be enough to satisfy the requirements of Sub-clause 2 of Section 19 of the Act. In an earlier case of Babulal Jodhani v. State of Assam (1989) 2 GLR 407, this court had also held that production of the cash memo before the trial court shall be deemed to be a warranty in view of the provisions of Section 14of the Act. In Criminal Revision No. 394/2000 the trial court raised an adverse presumption against the vendor for alleged non-production of the cash memo before the Food Inspector at the time of collection of sample. Section 14A reads as follows : - "14A. 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." 9. We thus find that Section 14A makes it obligatory on the part of the vendor to disclose the name and address of the person from whom he had purchased the article of food in question. The refusal to disclose has also been made punishable under the Section. The question of disclosure, however, arises when the Food Inspector so demands. Where the Food Inspector has not deposed or led any evidence to show that he had demanded from the vendor to disclose the name, address and other particulars, the vendor is not bound to do so. Neither the Food Adulteration Act nor the Rules made there under make it obligatory on the part of the vendor that in order to raise the plea of warranty, he must produce the cash memo or warranty before the Food Inspector at the time of taking sample. In other words, the defence available to the accused under Section 19 is not subject to the above condition or the provisions of Section 14A of the Act. The matter can be looked into from another angle also. In cases where the vendor discloses the name, address and other particulars of the person from whom the article of food in question was purchased by him, the law is well settled that the Food Inspector is not under obligation to join the manufacturer, distributor and dealer with the vendor as a party to the complaint. 10. The law was laid down by the Apex Court in the case of VN Kamdan v. Municipal Corporation, Delhi. 10. The law was laid down by the Apex Court in the case of VN Kamdan v. Municipal Corporation, Delhi. The Apex Court held that provisions of Section 14A were incorporated to facilitate the Food Inspector to issue notice in Form VIA to such manufacturer or distributor. The provisions were also brought on record so that the big fishes, i.e., the manufacturer or distributor can be caught. Further, Section 14A does not provide for production of the cash memo, bill or warranty, it merely provides that if demanded by the Food Inspector the vendor is required to only disclose the name, address and other particulars of the person from whom the article of food was purchased. The requirement of proving the warranty in the form of cash memo or bill is on the vendor and even if the vendor had disclosed the name as required under Section 14A the said liability does not cease and the vendor would be required to establish his plea by production of cash memo, bill, warranty etc. 11. In the given cases, the trial court has refused to consider and rely on the cash memo on the plea that the distributor or dealer who had issued the cash memo has not been examined to prove the signatures. In Criminal Revision 212/2000 the trial court observed that no evidence is forth coming from the side of the accused whether such a firm M/S Kamakhya Bhandar by name exists or not. The trial court, therefore, held that the accused is not entitled to the benefit under Section 19(2) of the Act. The law on this score was laid down by the Apex Court in the case of P Unnikrishnan v. Food Inspector Palghat Municipality. The Apex Court held that the proof that the manufacturer from whom the accused purchased the article has been duly licenced, depends on the facts of each case. In every case, the accused cannot be expected to verify whether the contents of the level on the tin and those in the bill containing the warranty are correct or not. At that juncture no knowledge about the non-existence 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 that juncture no knowledge about the non-existence 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. 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) of the Act. Thus, where the manufacturer or distributor is not traceable or it is found to be a bogus or non-existent firm the purchaser cannot be blamed for it and the benefits cannot be denied to him. Thus, when the dealer or the distributor who had issued the bill or cash memo declines or refuses to appear before the court, the vendor may be at liberty to prove the cash memo or bill as required under law and the benefits available to him under Section 19(2) may not be denied to him. 12. The next requirement of law under Section 19(2) of the Act is that the vendor must establish that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased. In the case of P Unnikrishnan (supra) where the Court found that the article was in sealed tins and these were not tampered with, the vendor was held to be entitled to the benefit. 13. In Criminal Revision No. 394/2000 the trial court refused to give the benefit to the vendor on the ground that the vendor had sold the goods in retail. The trial court further observed that once the bag or tin is opened and stored for sale in retail the vendor will not be entitled to the benefit. 14. The provisions of Section 19(2) of the Act were incorporated to provide protection to the small vendors and retailers and the vendor was required to further establish that the article was properly stored and sold by the seller in the same state as he purchased it. Hence, if we accept the contention of the trial court that once the container is opened by the retailer/vendor, he loses the protection under Section 19(2) of the Act, the scope of the beneficial provisions will be extinguished or limited. Hence, if we accept the contention of the trial court that once the container is opened by the retailer/vendor, he loses the protection under Section 19(2) of the Act, the scope of the beneficial provisions will be extinguished or limited. Admittedly, the small vendors and retailers sell goods in small quantity to the consumers and if the article of food is packed in big containers, for instance bags containing about 100 or 50 kgs of goods and containers containing 10/20 kg of goods the retailers are not expected to sell the entire quantity. In the case of Food Inspector v. MH Shoukathali (1989) 1 PFA 261, the Kerala High Court held 'the state of the article of food does not become different merely because it was taken out of the container in which it was sold by the manufacturer or dealer'. We are in full concurrence with the above view and hold that the vendor or the retailer will not lose the protection under Section 19(2) of the Act only because the container was opened and goods were sold from an opened container provided the defence establishes that the goods were stored for sale in the same condition in which it was brought by him. 15. In view of the provisions of law stated above, we may now examine the merit of individual case. 16. In Criminal Revision No. 212/2000 the article of food in question was 'gur' and the vendor proved and exhibited the bill. Ext. 'Ka' is the bill issued by Kamakhya Bhandar of Guwahati. The court had observed regarding the requirement of licence by stating that there is no evidence that Kamakhya Bhandar was a licenced dealer. No license is required for sale and purchase of 'gur' and as such there was no requirement of law to establish that Kamakhya Bhandar was a licenced dealer. Further the courts refused the benefits on the ground that there is no evidence regarding the existence of Kamakhya Bhandar and also on the count that the name of the firm has been written in the bill as Assam Commercial whereas the full name is Assam Commercial Company. The vendor has deposed on that count and we find that there was no cross-examination of the vendor that Ext. "Ka' was not issued in favour of the firm. The cross-examination was limited as to who had signed on behalf of the vendor. The vendor has deposed on that count and we find that there was no cross-examination of the vendor that Ext. "Ka' was not issued in favour of the firm. The cross-examination was limited as to who had signed on behalf of the vendor. So far the existence of the firm is concerned, we find that the bill contains the Assam Sale Tax and Central Sale Tax registration number of the dealer Kamakhya Bhandar along with their telephone number etc. and the prosecution has not led any rebuttal evidence and as such we hold that the petitioners accused are entitled to the protection under Section 19(2) of the Act. Accordingly, the Revision No. 212/2000 is allowed. The conviction and sentence entered into by the trial and affirmed by the appellate court is set aside. The accused persons are acquitted forthwith. They need not surrender to the bail bonds. 17. In Criminal Revision 394/2000, the defence plea was rejected by the trial court stating : - "It, therefore, appears that the two fold defence taken by the appellants has not been substantiated. First, the appellants failed to show that the food article which they purchased from the wholesaler was under warranty and that they sold the same in the same state as they purchased it. In that view of the position, I find that the protection as provided Under Section 19(2) cannot be available to the appellants." 18. The vendor led evidence by examining himself as DW 1 and the trial court observed : - "Accused Bisweswar Das examined himself Under Section 313 Cr.P.C. as D.W. 1. In his deposition stated that he is the proprietor of M/s Mahadev Store and at the time of taking of sample of Besan on 30.11.1994 he showed the cash memo of M/S Ambika Trading Co., Ganeshguri, Dispur from where he purchased two bags of Besan on 22.11.1994 to P.W. 1. It is stated by him that in spite of production of the same cash memo the Food Inspector had not served notice on M/S Ambika Trading Co. impleading it as one of the accused. It is also stated by him that he sold the sample in the same state in which he purchased from the aforesaid dealer and the same was kept properly and stored in his shop." 19. impleading it as one of the accused. It is also stated by him that he sold the sample in the same state in which he purchased from the aforesaid dealer and the same was kept properly and stored in his shop." 19. The benefit was denied as the vendor had opened the bag of 'besan' to sell the same in retail. The appellate court denied the benefits to the vendor on the ground that the warranty is not in prescribed form. As stated above, no warranty in prescribed form is required as the bill or cash memo from the dealer, distributor or manufacturer is deemed to be a warranty. We, therefore, allow this revision and set aside the order of conviction and sentence entered by the trial court and affirmed by the appellate court. The accused persons stand acquitted. 20. In Criminal Revision No. 127/97 the defence had examined as many as three witnesses. The vendor has deposed that the 'mug dal' in question was purchased by the vendor from M/S Rajesh Trading of Tangla vide Ext. 'Kha' dated 21.1.1991. The sample was collected by the Food Inspector on 23.1.1991, i.e., two days after the article was purchased by the vendor. The vendor had raised the twin plea of warranty as well as the plea that the article of food in question was meant for personal consumption. The trial court held that considering the quantity of 'mug dal' the plea that it was meant for personal consumption cannot be accepted and accordingly both the pleas were rejected on the count that when one plea was found not tenable the other plea also goes. 21. The law on criminal trial is well settled. The accused is at liberty to take whatever pleas and merely because one plea of the accused is not tenable the other plea cannot be thrown out on that count. The prosecution cannot succeed on the failure of the defence to substantiate their pleas. The plea of warranty is a specific plea as provided under Section 19(2) of the Act. The trial court's reasoning was also accepted by the appellate court by observing : - "The learned counsels for the appellants argued that the defence proved that there was warranty for the purchase of 'Mug dal' D.W. 1 Suresh Prasad also deposed that the "Mug dal" was purchased from Tangla. D.W. 2 Dinanath Prasad supported him. The trial court's reasoning was also accepted by the appellate court by observing : - "The learned counsels for the appellants argued that the defence proved that there was warranty for the purchase of 'Mug dal' D.W. 1 Suresh Prasad also deposed that the "Mug dal" was purchased from Tangla. D.W. 2 Dinanath Prasad supported him. D.W. 3 Jogendra Pandit deposed that he saw the Food Inspector engaged in altercation with Suresh Prasad." 22. The plea was rejected by the appellate court on the count that the cash memo was not shown to the Food Inspector. In view of our discussions that the failure of the vendor to show the cash memo to the Food Inspector at the time of taking the sample does not disentitle him from claiming the benefit under Section 19(2) of the Act. We hold that the defence plea of warranty was not considered in proper perspective. In view of the evidence and materials on record that the article of food 'mug dal' was purchased by the vendor two days prior to the collection of sample and it was stored for sale in the same state, the vendor and the owner of the shop are entitled to the protection under Section 19(2) of the Act. 23. In the result, the revision is allowed. The conviction and sentence entered into by the trial court and affirmed by the appellate court are set aside and the two accused persons are acquitted forthwith. 24. All the three revision petitions stand disposed of accordingly. Petition allowed.