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2011 DIGILAW 574 (GUJ)

PRAVINKUMAR VALLABHBHAI PATEL v. STATE OF GUJARAT

2011-08-01

HARSHA DEVANI

body2011
JUDGMENT 1. By this application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicants have challenged the order of conviction and sentence passed by the learned Judicial Magistrate First Class, Kalol in Criminal Case No.751 of 1993 vide judgment and order dated 7th July, 1999 and confirmed by the learned Additional Sessions Judge, Mehsana, 4th Fast Track Court in Criminal Appeal No.52 of 1999 by judgment and order dated 18th June, 2004. 2. The facts giving rise to the present application are that the respondent No.2 – complainant, who was discharging duties as a Food Inspector, lodged a complaint to the effect that on 16th January, 1993 at 2.45 p.m. he had visited the shop of M/s. Bhavchand Waghumal Sindhi. The said firm was engaged in the business of edible oil, vegetable oil, by way of wholesale and retail. In the said shop, there were pressed tins reflecting Swati brand of M/s. Shri Umiya Oil Mill, Bhavnagar Road, Amreli, which were stocked for sale. It is further stated in the complaint that a panch – Shri Bhojraj Asudomal Aswani was called and in his presence, sample for analysis from the pressed tins of double filtered groundnut oil of Swati brand was obtained in accordance with the rules. Thereafter, necessary notice in Form No.VI by way of Registered A.D. post was sent to the accused No.8 – manufacturing firm (the applicant No.3 herein). As per the provisions of section 11 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”), one bottle of the sample was sent to the Public Analyst, Rajkot, for analysis and the remaining two bottles were sent to the Local Health Authority, Mehsana. By a report dated 1st March, 1993 issued by the Public Analyst, Rajkot, the sample was reported to be adulterated. After submitting necessary papers, sanction under section 20 of the Act was sought for. Accordingly, the complaint came to be lodged on 24th April, 1993 against, in all, eight persons including the applicants herein who were arraigned as accused No.6 to 8. After submitting necessary papers, sanction under section 20 of the Act was sought for. Accordingly, the complaint came to be lodged on 24th April, 1993 against, in all, eight persons including the applicants herein who were arraigned as accused No.6 to 8. At the conclusion of the trial, the learned Judicial Magistrate First Class found that the applicants were guilty of breach of the provisions of section 7 of the Act and as such, were liable to be punished and sentenced under section 16(1)(a)(i) of the Act and sentenced the applicants No.1 and 2 to rigorous imprisonment for a period of six months and fine of Rs.1,000/- and in default of payment of fine, to undergo further 15 days of imprisonment. Since the applicant No.3 herein is a Company, the applicants No.1 and 2 were directed to pay fine of Rs.1,000/- in respect of applicant No.8 and in default, to undergo further imprisonment for 15 days. 3. Being aggrieved, the applicants preferred an appeal in the Court of the learned Additional Sessions Judge, 4th Fast Track Court, Mehsana, who vide the impugned judgment and order dated 18th June, 2004 dismissed the appeal and confirmed the order passed by the learned Judicial Magistrate. 4. Mr. A.D. Shah, learned advocate appearing for the applicants submitted that before the trial court, the accused No.1 to 5 had taken up the defence under section 19(2) of the Act. However, the said accused did not prove warranty as envisaged under the said section, and as such, the trial court was not justified in accepting the defence of the said respondents. It was further submitted that the present applicants are sought to be implicated on the basis of the bill dated 14th January, 1993 (Exh.102) which had been produced by the accused No.1 to 5 before the Food Inspector, which bill had been exhibited merely on the basis of the evidence of the Food Inspector who had stated that the said bill had been produced before him by the accused No.1 to 5. However the contents of the said bill had not been proved by leading evidence as envisaged under section 67 of the Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence Act”) and that the whole basis for convicting the present applicants is the bill (Exh.102). However the contents of the said bill had not been proved by leading evidence as envisaged under section 67 of the Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence Act”) and that the whole basis for convicting the present applicants is the bill (Exh.102). 4.1 Inviting attention to the provisions of section 67 of the Evidence Act, it was submitted that before the contents of a document are admissible in evidence, the party producing the document is required to establish and prove the document in accordance with provisions of section 67 of the Act. That, in the facts of the present case, the Food Inspector had no personal knowledge as regards the execution of the bill in question. The Food Inspector had not collected any evidence to establish that the said bill had, in fact, been issued by the applicants herein and that the article of which sample had been taken was the article sold by the company under the bill. It was submitted that without establishing the fact that the article of which sample had been obtained had, in fact, been sold by the applicants to the vendor by virtue of the said bill, there would be no question of resorting to the presumption under the proviso to section 14 of the Act. According to the learned advocate it is only when it is established that the article of which sample had been taken was actually sold by the Company under the bill in question would the proviso to section 14 of the Act be attracted whereby a deeming fiction would be created fastening liability on the manufacturer. It is only in such a situation that as per the deeming fiction, the burden would shift on the manufacturer who would then have to discharge the said burden. It was submitted that in the facts of the present case without considering the contents of the bill and without establishing that the bill in question had actually been issued by the applicants and that the articles of which the sample had been taken had actually been sold under the said bill, the provisions of section 14 would not be attracted and as such, the deeming fiction under the proviso to section 14 cannot be resorted to. Inviting attention to the findings recorded by the appellate court, it was pointed out that the appellate court has recorded the contents of the bill and has held that in the light of the contents of the bill, there was no reason to assume that the contents thereof were not correct. It was submitted that the question of looking into the contents of the bill would have arisen only provided the contents thereof had been proved. In the absence of the contents of the bill having been proved, merely because the bill had been exhibited, it was not permissible for the appellate court or the trial court to accept the contents of the bill. Referring to the order of the appellate court, it was pointed out that the Court has specifically recorded that in the cross-examination of the complainant at Exh.38 in relation to the bill (Exh.102), the complainant had stated that he was not aware as to who had signed the bill in question. It was pointed out that the appellate court has merely recorded that the complainant had denied that the bill (Exh.102) was not in respect of the sample groundnut oil, meaning thereby that as per the said witness the sample of groundnut oil taken by him is in respect of the very same bill (Exh.102) and in view of the above, from the evidence of the complainant as well as the panchnama it appears that the applicants had issued the bill (Exh.102) and for that there is no question of suspecting the facts stated in the bill. The learned advocate submitted that unless the contents of the bill had been proved, the question as to whether the said bill gives rise to suspicion would not have arisen. In the absence of the bill having been proved, both, the trial court as well as the appellate court, were not justified in placing reliance upon the same for convicting the present applicants. In support of his submissions, Mr. Shah placed reliance upon the decision of the Supreme Court in the case of Life Insurance Corporation of India and another v. Ram Pal Singh Bisen, (2010) 4 SCC 491 for the proposition that mere filing or exhibiting of a document in court does not amount to proof of its contents. Admission of a document in court may amount to admission of its contents but not their truth. Admission of a document in court may amount to admission of its contents but not their truth. Reliance was also placed upon the decision of the Supreme Court in the case of Keshav Dutt v. State of Haryana, (2010) 9 SCC 286 . 4.2 Next, it was submitted that when the vendor takes the defence of warranty, he has to prove that this was the bill issued to him and that he had sold the goods in the same condition. It was submitted that in the facts of the present case, the vendor has not led any evidence to prove that the bill in question had, in fact, been issued by the applicants and that he had sold the goods in the same condition. The learned advocate for the applicants urged that a person dealing in spurious products could also issue spurious bills. Merely by referring to the contents of a bill, it would not be proper to fasten the liability under section 14 of the Act on the manufacturer. Before fastening the liability under section 14 of the Act, the prosecution is required to prove the contents of the bill and to establish that the said bill had, in fact, been issued by the manufacturer in relation to the articles of which samples had been obtained. It has to be shown that it is the bill given by the manufacturer to the vendor. Mere production of bill is not sufficient and that the document is required to be proved under section 61 of the Evidence Act failing which the contents of the documents cannot be said to have been proved. 4.3 Reliance was also placed upon a decision of this Court in the case of Shivkumar Atmaram vs. State of Gujarat, 11 GLR 281, for the proposition that before the Court can consider any material in a case, it has to be proved in accordance with law and unless done so, it cannot be read as evidence in the case against any person, and at any rate, other than the one who produced it. Mr. Shah accordingly urged that it was the duty of the prosecution to prove the writing as having been executed by the applicants as required under section 67 of the Indian Evidence Act, failing which the same could not be read as evidence against the applicants. Mr. Shah accordingly urged that it was the duty of the prosecution to prove the writing as having been executed by the applicants as required under section 67 of the Indian Evidence Act, failing which the same could not be read as evidence against the applicants. 4.4 Referring to the contents of the bill (Exh.102), it was submitted that the said bill does not satisfy the requirements of section 19(2) of the Act, inasmuch as, the said bill does not contain any written warranty in the prescribed form under rule 12-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “the Rules”) and as such the defence of the vendor could not have been accepted by the trial court. Referring to the evidence of the complainant, it was further pointed out that no label of the tin in question had been seized. In support of his submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Murlidhar Shyamlal and Another vs. State of Assam, 1996 SCC (Cri.) 485, for the proposition that in the light of the provisions of section 19(2) of the Act read with rule 12-A of the Rules and Form VI-A, the vendor must prove that he purchased the article with a written warranty in Form VI-A. It must be specifically mentioned therein that the article of food sold was of the same nature and quality which it purports to be. That in the absence of evidence to such effect being established, the vendor would not be absolved of his liability. That in the absence of evidence to such effect being established, the vendor would not be absolved of his liability. Reliance was also placed upon a decision of this High Court in the case of State of Gujarat vs. Bhagchand Sadhumal & another, 1999 (2) FAC 343, for the proposition that reading section 19(2) of the Act and rule 12-A of the Rules, it becomes clear that if the vendor wants to take up a defence with a view to exonerate himself, then it is for him to prove that he purchased the article of food with a written warranty in terms of rule 12-A. In the facts of the said case, neither the accused dealer nor anyone on his behalf entered the witness box to prove warranty or bill and as such the bill was not proved by leading evidence; after seeing the bill the learned advocate for the accused dealer was not able to establish the identity of the article mentioned in the bill and the article of food which was taken as sample. The Court held that the accused dealer had not proved warranty. 4.5 Reliance was also placed upon a decision of the Bombay High Court in the case of S.D. Nagdeve vs. Sudhakar Raghunath Burange, 1999 Criminal Law Journal 2452, wherein the court in the context of defence under section 19(2) of the Act held thus: “The burden to prove this defence is extremely heavy and it is the obligation of the accused to discharge it. The reasons are not far to seek. It is so easy to produce a bill and to suggest that the article of which sample is taken out is out of the article covered by the bill. If defence is held to be proved in this manner, it would be well nigh impossible to get into net a guilty retailer - a class existing in our society. To hold so, therefore, would open flood gates of dishonest defences.” (Emphasis supplied) It was further held that more production of a bill or invoice or warranty would not be sufficient to hold that the vendor is entitled to be acquitted on the ground of warranty. 4.6 Mr. To hold so, therefore, would open flood gates of dishonest defences.” (Emphasis supplied) It was further held that more production of a bill or invoice or warranty would not be sufficient to hold that the vendor is entitled to be acquitted on the ground of warranty. 4.6 Mr. Shah also invited attention to the correspondence on which reliance had been placed upon by the prosecution which indicates that there is a discrepancy in the number of bill to submit that the prosecution has not even been able to establish the correct number of the bill. 4.7 Next, it was submitted that the procedure as prescribed under the Act for taking a sample has not been scrupulously followed. Inviting attention to the deposition of the complainant, it was pointed out that the bowl in which the sample had been taken was not cleaned before taking the sample; hence, there is clear contravention of the mandatory provisions of rule 14 of the Rules. It was, accordingly, submitted that the sample not having been obtained in accordance with the provisions of the Act, report of the analysis indicating that the sample in question was adulterated cannot be accepted as the sample itself would be doubtful. In conclusion, it was submitted that the prosecution having failed to establish its case against the applicants, the trial court was not justified in holding the applicants guilty of the offence alleged and the appellate court was not justified in confirming the order passed by the Trial Court and that the conviction and sentence being illegal and erroneous are required to be quashed and set aside. 5. Vehemently opposing the application, Mr. L.R. Pujari, learned Additional Public Prosecutor submitted that the sample of groundnut oil was taken in the presence of panchas after following due procedure and all necessary details had been recorded. In the panchnama it was clearly mentioned that the sample was taken from a sealed tin of 15 Kg Swati Brand double filtered groundnut oil manufactured by M/s Shri Umiya Oil Mills, Amreli which is kept for sale by the vendor. Details of the manufacturer, brand name, name of food article, quantity and quality like double filtered etc. were mentioned therein, and even on the lid (press tikdi) the name of the manufacturer was mentioned. Details of the manufacturer, brand name, name of food article, quantity and quality like double filtered etc. were mentioned therein, and even on the lid (press tikdi) the name of the manufacturer was mentioned. The sample was taken from one of the sealed tins out of 28 such tins available with the vendor, in the presence of the pancha. A copy of the bill was produced by the vendor before the Food Inspector at that time. The bill contained the licence number, sales tax number etc. of the manufacturer. Even the lorry receipt number and truck number in which the food articles were transported were mentioned therein. It was also stated that the articles mention therein were delivered in terms of weight, quantity and quality of the articles mentioned therein and are in consonance with the facts narrated in the bill. This bill was produced at Exhibit 102 and these facts were proved by the Food Inspector who was examined at Exhibit-38. Hence, in addition to the bill, the label, seal on the tin, etc. proved that the applicants were the manufacturers of the said articles. It was further submitted that it is very clear from the expert opinion that the sample of the groundnut oil was adulterated and that there are concurrent findings of both the courts below for convicting and sentencing the applicants herein. It was urged that the Food Inspector has no animus or hostility towards the applicants and was discharging public functions in purchasing the article of food for analysis and had no reason to falsely implicate the applicants. It was contended that it is not the law that the evidence of the Food Inspector must necessarily receive corroboration from independent witnesses before it is acted upon. In support of the said submission, reliance was placed upon the decision of Madhya Pradesh High Court in the case of Narayan Singh Bhagwan Singh v. State of M.P., 1993 (2) FAC 264 (MP). It was further submitted that it is not the case of the applicants that the vendors have committed any fraud and forged the bill. It is also not their case that the vendors were selling duplicate of their product. They have not filed any complaint or registered any FIR against the vendors. Therefore, the applicants who are the manufacturers are liable for the offence of adulteration. It is also not their case that the vendors were selling duplicate of their product. They have not filed any complaint or registered any FIR against the vendors. Therefore, the applicants who are the manufacturers are liable for the offence of adulteration. In support of the said submission reliance was placed upon the decision of the Supreme Court in the case of M/s. Bhagwan Das Jagdish Chander v. Delhi Administration and another, AIR 1975 SC 1309 . 5.1 Referring to the provisions of section 14 and 14A of the Act and rule 12-A of the Rules, it was submitted that rule 12-A in respect of warranty was substituted in the rules in the year 1968. However, the proviso to section 14 of the Act was inserted by the Act 34 of 1976 with effect from 1st April, 1976. This proviso very clearly and specifically provides that a bill, cash memorandum or invoice in respect of 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 the said section. Therefore, there is no need for a written warranty in Form No. VI-A as provided under rule 12-A of the Rules. It was further submitted that even though the said rule has not been either deleted or amended, the same is kept on the statute book only for the purposes other than the provisions contained in the proviso to section 14 but the same would not be applicable to the proviso to section 14 of the Act. According to the learned Additional Public Prosecutor the insertion of this proviso to section 14 being later in point of time, clearly shows the object of the legislature in inserting the said proviso is to make the law more stringent in the larger interest of public health and a bill itself without any warranty in Form No. VI-A is sufficient as warranty. Therefore, the same shall prevail over the provisions contained in rule 12A and there is no need of giving either separately or in the bill, cash-memo or a label, warranty in Form No. VIA. It was urged that when there is any conflict or inconsistency between two statutes the prior law would yield to the later law. Therefore, the same shall prevail over the provisions contained in rule 12A and there is no need of giving either separately or in the bill, cash-memo or a label, warranty in Form No. VIA. It was urged that when there is any conflict or inconsistency between two statutes the prior law would yield to the later law. According to the learned Additional Public Prosecutor, the proviso to section 14 creates a fiction that a bill, cash-memo or invoice given by a distributor or dealer to the vendor shall be deemed to be a warranty. The proviso does not make reference to Form No. VI-A of Appendix – A to the Rules. It was contended that the Prevention of Food Adulteration Rules are in the nature of subordinate legislation which have been made by the Central Government in exercise of powers conferred by section 23 of the Act. A rule can never override the provisions of the Act under which it has been made and in the event of a conflict it is the Act which will prevail and not the Rules. It was further submitted that the rules have to be consistent with the provisions of the Act and if a rule goes beyond what the Act contemplates, the rule must yield to the Act. According to the learned Assistant Government Pleader, the legislature in its wisdom has amended section 14 and added a proviso thereto under which a bill or cash memo given by a manufacturer, distributor or dealer to a vendor is deemed to be a warranty. Therefore, even if the vendor is unable to produce a warranty in Form No. VI-A the bill or cash-memo given to him by the manufacturer, the distributor or the dealer will be enough to satisfy the requirements. In support of his submission, Mr. Pujari placed reliance on the decision of the Supreme Court in The Central Bank of India and others v. Their Workmen, AIR 1960 SC 12 and Babaji Kondaji Garad and others v. Nasik Merchants Co-operative Bank Ltd., Nasik and others, AIR 1984 SC 192 . It was, accordingly, submitted that the provisions contained in rule 12A of the Rules would yield to the proviso contained in section 14 of the Act and as such in a case where the said proviso is attracted the requirements of the said rule are not required to be satisfied. It was, accordingly, submitted that the provisions contained in rule 12A of the Rules would yield to the proviso contained in section 14 of the Act and as such in a case where the said proviso is attracted the requirements of the said rule are not required to be satisfied. 5.2 Dealing with the contention as regards non-compliance of the provisions of section 19(2) of the Code, it was submitted that the same is misconceived and without any basis. Reiterating the above referred facts in relation to the bill (Exhibit 102) it was submitted that the bill was produced at Exhibit 102 and the facts stated therein were proved by the evidence of the Food Inspector. Hence, in addition to the bill, label, seal of the tin etc. it was proved that the applicants were the manufacturers of the said articles. The bill (Exhibit 102) was submitted by the vendor to the Food Inspector at the time of inspection itself and the same was maintained by him during the course of business. The bill is signed on behalf of the manufacturers which fact is proved by the Food Inspector. Thus, it is clear that the article was in the sealed tin and not tampered with; a label was there to the effect that it was the product of M/s Shri Umiya Oil Mill, Amreli; the vendor sold it in the same manner and condition in which it was purchased by him; and that the manufacturer from whom the vendor purchased the article has been duly licensed. It was argued that the vendor cannot be expected to verify further whether the contents of the label on the tin and those on the bill containing the warranty are correct or not. According to the learned Additional Public Prosecutor, the vendor by producing the bill immediately to the Food Inspector has duly discharged the burden to the extent necessary under the above provisions. Reliance was placed upon the decision of the Supreme Court in the case of P. Unnikrishnan v. Food Inspector, Palghat, AIR 1995 SC 1983 . It was, however, pointed out that the proviso to section 14 of the Act has not been considered by the Apex Court in the said decision. 5.3 Next it was submitted that section 19(2)(a) and section 19(2)(b) of the Act operate in different situations. It was, however, pointed out that the proviso to section 14 of the Act has not been considered by the Apex Court in the said decision. 5.3 Next it was submitted that section 19(2)(a) and section 19(2)(b) of the Act operate in different situations. A proper reading of section 19(2)(a) makes it clear that the vendor shall not be deemed to have committed an offence pertaining to sale of any adulterated or misbranded article of food if he proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer. That in the instant case the vendors purchased the article of food from duly licensed manufacturers. Therefore, the present case falls under section 19(2)(a)(i) and not section 19(2)(a)(ii) of the Act and hence the question of production of written warranty does not arise. According to the learned Additional Public Prosecutor, the State or the Food Inspector are not at all concerned with the validity of warranty nor are they required to lead any evidence on this point. The State has only to prove that the sample of article was taken by the Food Inspector in accordance with the Rules and the said sample was found to be adulterated on analysis. In support of the said submission the learned Additional Public Prosecutor placed reliance on the decision of the Allahabad High Court in the case of M/s. R. K. Trading Company Varanasi v. State of U.P., 1998 (2) FAC 15 (All). 5.4 Mr. Pujari further submitted that the burden of proof on the part of the vendor is not to prove the guilt of the manufacturer beyond reasonable doubt. He is only required to make out a case for entitlement to the benefit of section 19(2) of the Act by satisfying the ingredients of clauses (a) and (b) thereof whereby he shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of proof and absolve himself from the commission of the offence. It was submitted that the vendor has already produced bill to the Food Inspector and other material also proved that the article of food in the instant case was manufactured by the applicants; hence, the requirements of section 19(2) had been met with by the vendor. It was submitted that the vendor has already produced bill to the Food Inspector and other material also proved that the article of food in the instant case was manufactured by the applicants; hence, the requirements of section 19(2) had been met with by the vendor. The provisions of section 19(2) as regards proving the warranty under the bill issued would be applicable to the vendor and not to the manufacturers. Insofar as the manufacturers are concerned, they are covered by the provisions of section 14 of the Act. Under the proviso to section 14 of the Act, there is a presumption that when a bill has been issued by a manufacturer, the same is deemed to be a warranty. That in the facts of the present case, the bill in question having been issued by the manufacturer, the same is deemed to be a warranty and as such, it is not necessary that the warranty should be in the prescribed form as envisaged under rule 12-A of the Rules. It was, accordingly, submitted that the applicants have rightly been held to be guilty of the offence in question as the sample in question had been obtained from the articles sold by them to the other accused under the bill in question. 5.5 As regards the contention that the bill (Exhibit 102) has not been proved in accordance with the provisions of section 67 of the Act, the learned Additional Public Prosecutor drew the attention of the court to sub-section (3) of section 19 of the Act to submit that under the said provision, even in case of alleged warranty, the burden lies on the manufacturer to then lead evidence in his defence and establish that the goods in question had not been purchased from the said manufacturer and that the bill had not been issued by the said manufacturer. Therefore, as provided under section 19(3) of the Act there was ample opportunity for the present applicants to appear at the hearing and give evidence in their defence. However, they failed to give such evidence when all the details are mentioned in the bill. Therefore, as provided under section 19(3) of the Act there was ample opportunity for the present applicants to appear at the hearing and give evidence in their defence. However, they failed to give such evidence when all the details are mentioned in the bill. It was submitted that the applicants are the manufacturers of the food article and were having in their possession all evidence relating to the same and were the best persons who could bring out the truth, but they failed and neglected to do the same and withheld the correct facts from the court. Therefore, an adverse inference can be drawn against them. Hence, the contention about section 67 of the Act is not tenable in law. 5.6 Dealing with the decisions cited by the learned advocate for the applicants, the learned Additional Public Prosecutor submitted that the decision of the Supreme Court in Murlidhar Shyamlal (supra) would not be applicable to the facts of the present case because the proviso to section 14 of the Act was not brought to the notice of the court and was not considered by the Supreme Court. It was contended that in the said case only section 19(2) of the Act and rule 12-A of the Rules were brought to the notice of the court and the court was pleased to uphold the conviction of the dealer in that case. Whereas in the present case the dealer has already been acquitted by the trial court in view of the provisions contained in the proviso to section 14 of the Act. As regards the decision of the Supreme Court in the case of Mohinder Kumar v. State of Haryana (supra) it was submitted that the said decision also would not be applicable to the facts of the present case as in the facts of the said case the invoice was issued in the name of one Darshanlal and the name of the first accused was Nareshkumar. Therefore, there was no evidence to show that accused Nareshkumar purchased the adulterated article mentioned in that case. It was submitted that it was in the background of the aforesaid facts that the court held that the invoice was not proved. 5.7 Mr. Therefore, there was no evidence to show that accused Nareshkumar purchased the adulterated article mentioned in that case. It was submitted that it was in the background of the aforesaid facts that the court held that the invoice was not proved. 5.7 Mr. Pujari further placed reliance upon the following observations made by a Constitution Bench of the Supreme Court in State of Kerala and others v. Allasserry Mohammed and others, (1978) 2 SCC 386 : “9. xxxxx. The whole purpose and the context of the provision has to be kept in view for deciding the issue. The object of the Act is to obtain the conviction of person dealing in adulterated food. xxxxx. In other words, if the object is frustrated by the sending of short quantity of food by the food inspector to the Public Analyst, it is obvious that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance.” “13. xxxxx. In our statute the ingredient of the offence is, as mentioned in Section 7 of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under section 16(1)(a)(i) of the Act.” It was submitted that in the instant case the evidence of the Food Inspector, the panchnama, the bill and other documents clearly proved that the articles of adulterated food were manufactured by the present applicants. Therefore, even if there is any technical deficiency, taking into consideration the object of the Act and the larger interest of the public health the applicants are not entitled to get the benefit of the same. It was, accordingly, urged that this is not a fit case for exercise of powers of revision under section 397 of the Code and that the application deserves to be rejected. 6. It was, accordingly, urged that this is not a fit case for exercise of powers of revision under section 397 of the Code and that the application deserves to be rejected. 6. In the backdrop of the aforesaid facts and contentions, the following points arise for determination:- i. Whether the accused No.1 to 5 have proved warranty as required under section 19(2) of the Act? ii. Whether the prosecution has proved the bill at Exhibit 102 as required under the provisions of the Evidence Act? iii. Whether the proviso to section 14 of the Act is attracted in the facts of the present case? 7. Dealing with the first point, it may be relevant to refer to the provisions of section 19 of the Act which read thus: “19. Defences which may or may not be allowed in prosecutions under this Act.—(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. (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, dis tributor 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) Any person by whom a warranty as is referred to 2[in Section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence. In the facts of the present case the offending food article has been recovered from the vendor viz., the accused No.1 to 6. (3) Any person by whom a warranty as is referred to 2[in Section 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence. In the facts of the present case the offending food article has been recovered from the vendor viz., the accused No.1 to 6. Under the provisions of sub-section (1) of section 19 of the Act a vendor merely alleging that he was ignorant of the nature, substance and quality of the food sold by him is no defence in a prosecution pertaining to the sale of adulterated or misbranded food article. However, sub-section (2) of section 19 of the Act provides for a deeming fiction under which the vendor shall not be deemed to have committed an offence pertaining to the sale of adulterated or misbranded article of food. For the purpose of getting the benefit of sub-section (2) of section 19 of the Act the vendor is required to prove two things. That he has purchased the food article (i) from a duly licensed manufacturer, distributor or dealer in a case where a licence is prescribed for the sale thereof, or (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and secondly 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. In the facts of the present case it is an admitted position that the applicants herein are licensed manufacturers, in the circumstances, the vendor for the purpose of availing the defence under sub-section (1) of section 19 of the Act was required to prove that he had purchased the article of food from a duly licensed manufacturer with a warranty in the prescribed form and that the article of food while in his possession was properly stored and that he sold the same in the same state as he purchased it. Examining the facts of the present case in the background of the aforesaid statutory requirement, the vendor has taken up the defence under sub-section (1) of section 19 of the Act by producing before the complainant the bill (Exhibit -102). Examining the facts of the present case in the background of the aforesaid statutory requirement, the vendor has taken up the defence under sub-section (1) of section 19 of the Act by producing before the complainant the bill (Exhibit -102). It is on the basis of the said bill that the courts below have been satisfied that the provisions of sub-section (2) of section 19 of the Act have been duly satisfied. The record of the case indicates that on behalf of the accused No.1 to 6, (the accused No.6 being the vendor firm and accused No.1 to 5 being the partners) no evidence has been led to prove the bill (Exhibit 102). The bill (Exhibit 102) is sought to be proved through the testimony of the complainant Food Inspector. It may therefore be germane to refer to the testimony of the complainant who has been examined at Exhibit 38. 8. In his examination in chief, the complainant has interalia deposed that he had visited the shop of the accused No.6 firm on 16th January, 1993 at Kalol where the accused No.1 was present. Upon entering the shop, stock of 28 tins of Swati brand ground nut oil was found. Each tin bore the label on which the following was printed “Swati Double Filtered Pure Ground (sic) Oil manufactured by Umiya Oil Mill, Bhavnagar Road, Amreli. 15 Kg net. Manufacture month nil, and Maximum retail price nil”. Upon inquiring from the accused No.1 he had informed that the said stock had been purchased by him from accused No.8 by a warranty bill No.371 dated 14th January, 1993 and showed him the original bill for purchase of 75 tins. On the basis of the original bill he obtained a xerox copy for the purpose of evidence and both the panch as well as accused No.1 put their signatures on the xerox copy. He has thereafter deposed as regards the manner in which the sample was taken and thereafter sent to the public analyst for analysis and the receipt of the report, etc. In his cross examination by the learned advocate for the accused No.1 to 5, the complainant has stated that he had signed the original bill and has admitted his signature on the original bill. The said bill is produced at Exhibit 102. He has further stated that the said bill is a warranty. In his cross examination by the learned advocate for the accused No.1 to 5, the complainant has stated that he had signed the original bill and has admitted his signature on the original bill. The said bill is produced at Exhibit 102. He has further stated that the said bill is a warranty. In his cross examination by the learned advocate for the applicants the complainant has admitted that he has not seized the label of the tin. He has stated that after taking the sample he has not visited the premises of Umiya Mill for the purpose of ascertaining whether the same was purchased from the said mill as he did not find it necessary to do so. He has admitted that warranty in Form No.6A was not printed on the label, that he has not ascertained with the mill as regards the label of Umiya Oil Mill. He has not ascertained as to whether the press lid (tikdi) Exhibit 46 has been affixed by Umiya Oil Mill. According to the complainant ground nut oil may be raw groundnut oil, filtered groundnut oil, double filtered groundnut oil as well as refined ground nut oil. He has admitted that in the bill (Exhibit 102), there is mention of only groundnut oil and that the words double filtered groundnut oil are not written in the bill. He has also admitted that the bill (Exhibit 102) was not prepared in his presence and that he is not in a position to say as to whose handwriting and whose signature is there on the bill. He has further admitted that there is no warranty printed on the bill (Exhibit 102). The only other oral evidence is of the panch witness who has not supported the prosecution case and has been declared to be hostile. 9. In the background of the aforesaid evidence, it may be pertinent to examine as to whether the provisions of section 19(2) of the Act have been complied with. As noted hereinabove, for the purpose of availing the defence under sub-section (2) of section 19 of the Act the vendor is required to prove that he has purchased the article of food from a duly licensed manufacturer with a written warranty in the prescribed form. As noted earlier the only evidence on record is the bill (Exhibit 102) and the testimony of the complainant. As noted earlier the only evidence on record is the bill (Exhibit 102) and the testimony of the complainant. On behalf of the vendor no evidence has been led to prove that the food article in question had been purchased from a duly licensed manufacturer with a written warranty in the prescribed form. Both the courts below have accepted the bill (Exhibit 102) to have been duly proved and to be proof of the fact that the goods were purchased from a duly licensed manufacturer with a written warranty in the prescribed form. 10. As to what is the nature of a written warranty has been prescribed under rule 12-A of the Rules. Rule 12-A of the rules speaks of warranty and lays down that 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. The prescribed Form VI-A mentions invoice number, place, date of sale, nature and quality of article, quantity and price. At the foot of the form these words are mentioned: “I/We hereby certify that food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor. Signature of trader/traders.” 11. From the facts noted hereinabove, it is an admitted position that no warranty is printed on the bill (Exhibit-102), consequently, it is also an admitted position that the bill in question did not contain any warranty as envisaged under rule 12-A of the Rules. Thus, the requirement of having purchased goods from a duly licensed manufacturer with a written warranty in the prescribed form is clearly not satisfied. On behalf of the prosecution it has been contended that the requirement of written warranty is only where a case falls under sub-clause (ii) of clause (a) of section 19(2) and that the same would not be applicable to a case like the present one which falls under sub-clause (i) of clause (a) viz., where the article of food is purchased from a duly licensed manufacturer, distributor or dealer in a case where a license is prescribed for the sale thereof. The aforesaid contention cannot be countenanced inasmuch as the said contention flies in the face of the law laid down by the Supreme Court in the case of Rajaldas Gurunamal Pamanani v. State of Maharashtra, (1975) 3 SCC 375 wherein it has been held thus: “15. The reason why a warranty is required in both the cases contemplated in Section 19(2)(a)(i) and (ii) is that if warranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licensed manufacturer, distributor or dealer, adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in Section 19(2)(a)(i) and (ii). Section 19(2)(a) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, 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 that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No laxity should be permitted.” In the light of the aforesaid facts, it is apparent that the requirements of sub-section (2) of section 19 of the Act have not been satisfied by the vendor. In the circumstances, the accused No.1 to 5 have failed to prove the warranty as required under section 19 of the Act. 12. Adverting to the next point, viz., whether the prosecution has proved the Bill at Exhibit 102, it may be necessary to examine the evidence in this regard. As noted earlier, the bill has been exhibited at Exhibit 102 during the cross examination of the complainant by the learned advocate for the accused No.1 to 5. It has been held by both the courts below that the bill (Exhibit 102) has been proved through the testimony of the complainant. As noted earlier, the bill has been exhibited at Exhibit 102 during the cross examination of the complainant by the learned advocate for the accused No.1 to 5. It has been held by both the courts below that the bill (Exhibit 102) has been proved through the testimony of the complainant. As noted hereinabove, the complainant in his testimony has stated that the bill (Exhibit 102) had been produced before him by the accused No.1 during the course of his visit to the premises of the accused No.6 firm and that he had taken a xerox copy of the same for the purpose of evidence. However, all that can be said to be proved by the complainant is the fact that the said bill was the bill produced before him by the accused No.1 stating that the same was the bill on the basis of which he had purchased the tins of groundnut oil. However, the bill per se is not proved, inasmuch there is no evidence to the effect that this was the bill which was given by the manufacturer viz. the applicants herein in respect of sale of the food article in question to the vendor, that is, the accused No.1 to 5. Nor is the genuineness of the said bill proved. Moreover, as has been rightly contended by the learned advocate for the applicants, a perusal of the record of the case indicates that the contents of the said bill have not been proved in accordance with section 67 of the Evidence Act. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. In the facts of the present case, it is the case of the complainant that the bill in question has been issued by the applicants herein. In the facts of the present case, it is the case of the complainant that the bill in question has been issued by the applicants herein. In the circumstances, to prove the contents of the bill, the prosecution was required to prove the signature and the handwriting thereon either by calling the person who signed or wrote the contents thereof, or by calling the person in whose presence the document was signed or written, or by calling an expert, or by calling the person who is acquainted with the handwriting of the person by whom the document was purported to be signed or written, by comparison of the signature on the document with the admitted or proved signature of the person who is purported to have signed or written the document, by other circumstantial evidence. Moreover, there must be specific evidence that the signature purporting to be that of executant is in the handwriting of the executant; unless that is proved, the execution thereof cannot be held to be proved. Section 67 makes proof of execution of a document something different from the mere proof of the matter. In the absence of proof of signatures or handwriting on the document, mere production of the document would not be sufficient to infer that the said document has been executed by the parties. In the circumstances, mere production of the bill in question by the complainant – Food Inspector, without proving the handwriting and the signature thereof or without leading any other evidence and without making any attempt to prove the contents thereof by proving the signature or author thereof, it was not permissible to admit the contents thereof in evidence. In the light of the aforesaid discussion it is apparent that all that is proved by the prosecution is that the Bill (Exhibit 102) is the bill which was produced by the accused No.1 before the complainant when he visited the shop of the accused No.6 firm. However, the prosecution has failed to lead any evidence to establish that the Bill (Exhibit 102) has been issued by the applicants in respect of the sale of the food article in question to the vendor and has also failed to prove the contents of the said bill. However, the prosecution has failed to lead any evidence to establish that the Bill (Exhibit 102) has been issued by the applicants in respect of the sale of the food article in question to the vendor and has also failed to prove the contents of the said bill. It is settled legal position as held by the Supreme Court in the case of Life Insurance Corporation of India and another v Ram Pal Singh Bisen, (2010) 4 SCC 491 , on which reliance has been placed on behalf of the appellants that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Thus, the prosecution has failed to prove the bill (Exhibit 102). 13. Proceeding to the third point, viz., whether the provisions of section 14 of the Act would be attracted in the present case, a perusal of the judgments passed by both the courts below indicates that despite a specific contention having been raised on behalf of the applicants that the provisions of section 67 of the Evidence Act have not been satisfied and that the bill (Exh.102) had not been proved as required under the said section and as such, was not admissible in evidence, the same has been brushed aside by both the courts below by holding that considering the contents of the bill, there was no reason to suspect the same. The reasoning adopted by both the courts below is fallacious inasmuch as the contents of the bill could have been looked into only provided the same had been proved in accordance with the provisions of section 67 of the Evidence Act. In the absence of the contents of the bill having been proved, the contents thereof could not have been looked into. At this stage it may be germane to refer to the provisions of section 14 of the Act which reads as under: “14. In the absence of the contents of the bill having been proved, the contents thereof could not have been looked into. At this stage it may be germane to refer to the provisions of section 14 of the Act which reads as under: “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. Explanation.—In this section, in sub-section (2) of Section 19 and in Section 20-A, the expression “distributor” shall include a commission agent.” 14. It has been contended on behalf of the prosecution that in view of the provisions of section 14 of the Act a bill, cash memorandum or invoice in respect of 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 a warranty given by such manufacturer, distributor or dealer under the said section, hence there is no necessity for compliance of the provisions of rule 12-A for the purpose of invoking the proviso to section 14 of the Act. As is apparent on a plain reading of section 14 of the Act, the same imposes an obligation on a manufacturer, or a distributor or a dealer not to sell any article of food 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. The proviso thereto, however, introduces a deeming fiction whereby 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 is deemed to be a warranty given by such manufacturer, distributor or dealer under that section. The proviso thereto, however, introduces a deeming fiction whereby 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 is deemed to be a warranty given by such manufacturer, distributor or dealer under that section. Thus, even if there is no warranty, the bill issued is deemed to be a warranty by virtue of the proviso to section 14 of the Act. Thus, for the purpose of invoking the provisions of section 14 of the Act and more particularly the proviso thereto, a bill, cash memorandum or invoice is required to have been issued by the manufacturer, distributor or the dealer to the vendor in respect of the sale of the article of food to the vendor. In the facts of the present case there is a bill (Exhibit 102) which has been admitted in evidence during the course of the cross examination of the complainant by the learned advocate for the accused No.1 to 5. All that is proved through the testimony of the complainant is that the said bill was produced by the accused No.1 stating that the food article in question had been purchased under the said bill. However, as discussed earlier no evidence has been led by the prosecution or the accused No.1 to 5 to prove the genuineness of the bill in question, nor have the contents of the said bill been proved as required under section 67 of the Evidence Act. In the absence of the accused No.1 to 5 having established that the bill (Exhibit 102) was issued by the applicants in respect of sale of the food article in question to them by leading necessary evidence in that regard, the fact that the bill has been issued by the applicants itself has not been proved. The contents of the bill have also not been proved in terms of section 67 of the Evidence Act, by proving the handwriting of the person who has filled in the various columns under the bill as well as the signature of such person. In the circumstances, it cannot be said that the bill (Exhibit 102) has been proved to be a bill issued by the applicants in respect of the sale of the food articles in question. In the circumstances, it cannot be said that the bill (Exhibit 102) has been proved to be a bill issued by the applicants in respect of the sale of the food articles in question. Once the factum of issuance of the bill (Exhibit 102) is held to be not proved, the question of invoking the proviso to section 14 of the Act would not arise inasmuch as section 14 would come into play provided the manufacturer, distributor or dealer has given a bill, cash memorandum or invoice in respect of sale of such article to any vendor. In the present case when the fact that the manufacturer has given such a bill itself has not been proved, the deeming fiction under the proviso to section 14 of the Act would not be attracted because for the purpose of the deeming fiction coming into operation, the condition precedent is that a bill, cash memorandum or invoice in respect of the sale of such article of food should have been given by the manufacturer or distributor of or dealer in such article. In the circumstances, it cannot be deemed that the bill in question was a warranty issued by the applicants – manufacturers and as such the proviso to section 14 of the Act could not have been invoked. 15. In the light of the findings recorded hereinabove, it is not necessary to enter into the merits of the other issues raised by the learned advocates for the respective parties. 16. A perusal of the impugned judgments and orders passed by the courts below indicates that the sole basis for convicting the applicants herein for the offence in question is that the applicants have issued the bill (Exhibit 102) to the vendor and have proceeded on the footing that the contents thereof are proved and can be read into evidence. In the light of the findings recorded hereinabove namely, that the factum of issuance of the bill (Exhibit 102) by the applicants herein as well as the contents thereof have not been proved, and that except that the bill had been admitted in evidence the same had not been proved in accordance with law, it is evident that the contents of the bill (Exhibit 102) could not have been read into evidence. The trial court was, therefore, not justified in basing the conviction on the bill (Exhibit 102). The trial court was, therefore, not justified in basing the conviction on the bill (Exhibit 102). The appellate court was also not justified in holding that considering the contents of the bill (Exhibit 102) there was no reason to suspect that the same had not been issued on behalf of Umiya Oil Mill. Needless to state that when the document Exhibit 102 had itself not been proved, there was no question of reading the same in evidence. In the circumstances, the order of conviction and sentence passed by the trial court as well as the judgment and order passed by the appellate court being contrary to the evidence on record cannot be sustained and are required to be set aside. 17. In view of the above discussion, the application succeeds and is accordingly allowed. The order of conviction and sentence passed by the learned Judicial Magistrate First Class, Kalol, in Criminal Case No.751 of 1993 by the judgment and order dated 7th July, 1999 as well the judgment and order dated 18th June, 2004 passed by the learned Additional Sessions Judge, Mehsana, 4th Fast Track Court in Criminal Appeal No.52 of 1999 confirming the same are hereby quashed and set aside. The applicants are accordingly acquitted of the offence under section 16(1)(as)(1) of the Prevention of Food Adulteration Act, 1954. Bail bonds shall stand cancelled and fine, if any, paid by the applicants shall be refunded. Rule is made absolute accordingly.