JUDGMENT I.A. Ansari, J. 1. With the help of this revision, the petitioner, Biplab Kanti Haldar, has put to challenge the judgment and order, dated 14.11.2003, passed, in Criminal Appeal No. 7(1) of 2003, by the learned Sessions Judge, Karimganj, dismissing the appeal and upholding the judgment and order, dated 28.01.2003, passed, in CR Case No. 608 of 1999, by the learned Chief Judicial Magistrate, Karimganj, whereby the learned trial Court had convicted the accused-petitioner, Biplab Kanti Haldar, under Section 16, read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the PFA Act'), and sentenced him to suffer rigorous imprisonment for 6 (six) months and pay fine of Rs. 1,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a further period of 2 (two) months. The case of the prosecution, as emerged at the trial, may, in brief, be described as under: On 30.01.1999, Sri A.C. Boro, Senior Food Inspector, Karimganj, visited the grocery shop (which was run under the name and style of M/s. Bindu Bhusan Haldar, having licence No. KR-547/87), when the present petitioner was allegedly running the shop. The Food Inspector claimed to have purchased 300 grams of turmeric powder, by paying Rs. 21/-, from the available stock, which was kept in sealed polythin packet of 100 grams each. Having taken the sample of turmeric powder as stated hereinbefore, the sample, so purchased, was divided into three parts and one part of the samples was sent, on 01.02.1999, to the Public Analyst, Assam, along with a Memorandum in Form VII. The report of the Public Analyst disclosed that the turmeric powder, which had been sent, as stated above, for analysis, was found adulterated. Having obtained requisite sanction from the Local (Health) Authority, an offence report was submitted against the present accused-petitioner, Biplab Kanti Haldar, seeking his prosecution under Section 16 read with Section 7 of the PFA Act. 2. At the trial, when a charge under Section 16, read with Section 7 of the PFA Act, was framed, the accused-petitioner pleaded not guilty thereto. 3. In support of their case, prosecution examined two witnesses, namely, the said Food Inspector and his office peon. The accused-petitioner was, then, examined under Section 313 Cr. 2. At the trial, when a charge under Section 16, read with Section 7 of the PFA Act, was framed, the accused-petitioner pleaded not guilty thereto. 3. In support of their case, prosecution examined two witnesses, namely, the said Food Inspector and his office peon. The accused-petitioner was, then, examined under Section 313 Cr. PC and, in his examination, aforementioned, he denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being, briefly stated, thus: The present accused-petitioner was neither vendor nor owner of the said grocery shop inasmuch as said shop belongs to, and was owned by, his father, Bindu Bhusan Haldar. It was the further case of the defence that the accused-petitioner, Biplab Kanti Haldar, was an employee of Mahisasan Sub-Post Office, at the relevant point of time, and the Food Inspector (P.W. 1) called him from the said Post Office, on 30.01/1999, through his office peon (P.W. 2) and, though the accused-petitioner informed the Food Inspector that he (accused-petitioner) was not the owner of the said shop, the Food Inspector obtained his signatures on some papers and, thereafter, the accused-petitioner left the said shop and went back to resume his duty at the said Post Office. 4. In support of their case, the defence, too, adduced evidence by examining four witnesses including, besides the accused-petitioner, his father, Bindu Bhusan Haldar, a customer, Babul Das, who was stated to be present, at the relevant point of time, at the said shop, and an employee, K.K. Mahanta, of the said Post Office. 5. Having, however, found the accused-petitioner guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which was passed against him, the accused, Biplab Kanti Haldar, preferred an appeal. Since the appeal has been dismissed, the accused, with the help of this revision, seeks to get his conviction and also the sentence, passed against him, set aside. 6. I have heard Mr. N Choudhury, learned counsel, for the accused-petitioner, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. Broadly speaking there are two grounds on which the defence of the accused-petitioner is based. 6. I have heard Mr. N Choudhury, learned counsel, for the accused-petitioner, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. Broadly speaking there are two grounds on which the defence of the accused-petitioner is based. The two grounds, advanced, on behalf of the accused-petitioner, in the present revision, are: (i) Prosecution of the accused-petitioner is wholly illegal inasmuch as he was neither the vendor nor the owner of the grocery shop, where the Food Inspector claimed to have purchased turmeric powder from; (ii) The turmeric powder, in question, was purchased by Bindu Bhusan Haldar, owner of the shop, from. M/s. Gour Masala, owned by Dulal Kuri, at Chaurakuri, Karimganj, and the cash memo (Ext. B) was received, in this regard, by Bindu Bhusan Haldar, the real owner of the said shop, and the said cash memo ought to have been treated as warranty by the learned Court below and since the turmeric powder, in question, was sold in the same condition, in which the turmeric powder had been purchased from M/s. Gour Masala, the accused-petitioner could not have been charged and convicted of the offence aforementioned. 8. Let me, first, consider the plea of the accused-petitioner that he was not owner of the said shop. In this regard, what attracts my attention, most prominently, is that DW 1, who was an employee of the said Post Office, has deposed, at the trial, that he was sent by the Post Master pursuant to a summon received; and this witness (DW 1) has produced the attendance register (Ext. D), which was proved in original. The entries in the said register show that the accused-petitioner was present at the said Post Office, on 30.01.1999, i.e., the day on which the Food Inspector had visited the said shop and had purchased the turmeric powder. It is also in the evidence of P.W. 1 that the said Post office functions between 10:00 AM and 05:00 PM, but it was possible to come out with the permission of the Post Master if there was any exigency. Nothing significant was elicited by the prosecution fan the cross-examination of DW 1 to show that what he had deposed was untrue or false and that Ext D (Attendance Register) did not contain the correct position of the attendance of the employees concerned on 30.01.1999. 9. Nothing significant was elicited by the prosecution fan the cross-examination of DW 1 to show that what he had deposed was untrue or false and that Ext D (Attendance Register) did not contain the correct position of the attendance of the employees concerned on 30.01.1999. 9. From the evidence of DW 1, what can be clearly gathered is that the accused-petitioner was, indeed, an employee of said Post Office and he had attended the said Post Office on 30.01.1999. 10. Situated thus, it was incumbent, on the part of prosecution, to prove, in order to secure conviction of the accused-petitioner, that notwithstanding the fact Ext. D disclosed that the accused-petitioner was in attendance," at the said Post Office, on 30.01.1999, he was nevertheless running the said grocery shop, when the Food Inspector, accompanied by his Office Peon, visited the said shop. 11. In the absence of any materials on record, belying the evidence given by P.W. 1, the learned trial Court below ought not to have ignored the evidence of DW 1 and the purpose, with which he had been examined by the defence merely because of the fact that notice, in Form No. VI, was received by the petitioner and money was shown to have been given to him by the Food Inspector for purchasing turmeric powder, particularly, when the explanation, offered by the accused-petitioner, was that he had been called by the Food Inspector by sending to him his office peon (P.W. 2) and though he (accused-petitioner) had informed to the Food Inspector (P.W. 1) that he was not the owner of the said shop, the Food Inspector had still obtained the signatures on some papers and, thereafter, he (i.e., the accused-petitioner) left the said shop and went back to the said Post Office. In this regard, DW 2 has deposed that he was present at the shop, at the relevant point of time, as a customer, and witnessed that Bikram Haldar, the minor son of the owner of the said shop, Bindu Bhusan Haldar, was present, but as P.W. 1 wanted an adult member of the family to give signatures on the papers, Bikram disclosed that his elder brother (i.e., the petitioner) was available in the nearby Post Office and it was, thereafter, that P.W. 1 sent P.W. 2 to call the petitioner, the petitioner accordingly came to the shop, put his signatures in good faith, as had been asked by the Food Inspector, and went back to the post office. Though the prosecution cross-examined DW 2, nothing material was elicited from his cross-examination to show that what he had deposed was untrue or false. When the evidence of DW 2 remained unshaken in cross-examination, it was highly illegal and improper, on the part of the learned trial Court, to have rejected and discarded the evidence of DW 2. The fact that the evidence of DW 2 had remained unshaken, even in his cross-examination, appears to have escaped the attention of the learned Appellate Court too. 12. Turing to the evidence of DW 3, Bindu Bhusari Haldar, father of the present petitioner, it needs to be noted that according to him, he was the owner of the said shop. This apart, the complaint also discloses the name of the said shop as M/s. Bindu Bhusan Haldar. Moreover, it was not disputed at the trial that the licence was in the name of the accused-petitioner's father (DW 3). In such circumstances, there could have been no escape from the conclusion that it was DW 3, who was the owner of the said shop. Though DW 3 was the owner of the said shop, prosecution of the accused-petitioner was still sustainable had the prosecution succeeded in proving, beyond reasonable doubt, that it was the accused-petitioner, who was running the said shop at the relevant point of time and had sold the said turmeric powder to the Food Inspector (P.W. 1). 13. With regard to the above, the prosecution succeeds to a considerable extent. It is trite that burden of proof lies on the prosecution and even if the onus shifts to the accused, the accused requires to only probablise his plea. 13. With regard to the above, the prosecution succeeds to a considerable extent. It is trite that burden of proof lies on the prosecution and even if the onus shifts to the accused, the accused requires to only probablise his plea. The burden of the defence to prove its case is not as heavy as on the prosecution inasmuch as the prosecution has to prove its case beyond reasonable doubt; whereas the defence is required to only in probablise its plea unless a given legislation requires the defence to prove its case beyond reasonable doubt. 14. Though the finding, recorded above, is sufficient to allow this revision, it is pertinent to note that DW 3 has produced the cash memo aforementioned, which is Ext. B, showing that he had purchased turmeric powder in sealed polythin packets weighing 100 grams each. It was not the case of the prosecution that the turmeric powder was not purchased as against the cash memo (Ext. B) 15. Ext. B is a printed cash memo, which contains the name and address of the manufacturer Ext. B reads, "Gour Masala, Dulal Kuri, Churakuri, Karimganj". It was also not the case of the prosecution that the turmeric powder, having been purchased, as aforesaid, had been adulterated and, then, sold at the said shop. On the contrary, the case of the defence was that the turmeric powder was sold in the same condition i.e., sealed polythin packet, weighing 100 grams each, as had been purchased from M/s. Gour Masala on 30.01.1999, and in terms of Section 19 of the PFA Act, the accused-appellant's prosecution was bad in law. 16. On the contrary, the case of the defence was that the turmeric powder was sold in the same condition i.e., sealed polythin packet, weighing 100 grams each, as had been purchased from M/s. Gour Masala on 30.01.1999, and in terms of Section 19 of the PFA Act, the accused-appellant's prosecution was bad in law. 16. It is, at this stage, necessary to point out that sub-Section (2) of Section 19 of the PFA Act provides, inter alia, that 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 of food (i) in a case, where a licence is prescribed, for the sale thereof, from a duly licensed manufacturer, distributor or dealer, and (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form subject to the condition that the vendor proves 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. 17. A close reading of sub-Section (2) of Section 19 makes it clear that 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 of food from any manufacturer, distributor or dealer, with a written warranty in the prescribed form. Thus, when an article of food is proved by a vendor to have been purchased with a warranty in the prescribed form, if the sale of the article of food does not require prescribed licence, the warranty, in the prescribed form, would give complete immunity from prosecution provided that the vendor also proves 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. 18. With regard to the plea of warranty, it is worth pointing out that the cash memo (Ext. 18. With regard to the plea of warranty, it is worth pointing out that the cash memo (Ext. B) does not have warranty clause provided for by Section 14 of the PFA Act read with Rule 12A of the Prevention of Food Adulteration Rules, 1955 (in short 'PFA Rules) inasmuch as the cash memo, in the present case, does not have the warranty as prescribed in Form No. VIA, which has been framed under Rule 12-A. The obligation to issue a warranty, in writing, in the prescribed form, by manufacturer or distributor of, or dealer in, any article of food is provided in Section 14 of the PFA Act, which reads as under Section 14. Manufactures, 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 manufacture, distributor or dealer. 19. Close on the heels of Section 14, Rule 12-A requires that warranty shall be given in Form VIA, either separately or in the bill, cash memo or label. Rule 12-A reads: 12A. Warranty: 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 VIA. 20. What can be clearly seen is that while Rule 12A, with the help of Form VIA, prescribes as to what shall be the contents of a warranty, the proviso to Section 14 creates a legal fiction by deeming 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 manufacture, distributor or dealer. In other words, notwithstanding the fact that Rule 12A specifically prescribes the contents of the warranty, the proviso to Section 14 makes every 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 with the help of a legal fiction, which the proviso so creates. 21. In order, therefore, to appreciate if Ext. B helps to absolve the accused-petitioner of the prosecution, one needs to look into the legislative history of the amendment of Section 14 of the PFA Act. 22. The proviso to Section 14 did not exist in the principal Act As correctly pointed out by Mr. N. Choudhury, learned counsel, the first amendment of the PFA Act was done by the PFA (Amendment) Act, 1954 (the Act 49 of 1964) incorporating, in Section 14, the words "manufacture or distributor of, or dealer in". Even at that time, there was no proviso to Section 14. Till 17.02.1976, Section 14 had cast only a mandatory burden on the manufacture or distributor of, or dealer in, article of food to give warranty without there being any provision for remedy in case the manufacture or distributor of, or dealer in, article of food violated the provision. The result was that the petty dealers continued suffering for the unlawful act of the big manufactures and dealers. Paragraph 8 of Surendranath Pradhan Vs. State of Orissa (1973 Cr. L.J. 361) aptly describes the position as to how the big businessmen enjoyed, while petty marginal dealers went on suffering for their guilt. The relevant observations, appearing, in this regard, in Surendranath Pradhan (supra), read as under: Before leaving this judgment, I must say that law has been made purposely very rigorous since food adulteration is an anti-social act. If let loose, it would eat into the very vitals of the nation. But more often than not, the big wholesalers, dealing in thousands of tins and bags, in Malgodowns, from whom the petty dealers get the articles, are not pursued, but the small fries in the interior. Adulteration, if any, is done by these wholesalers, who suck the blood of the nation, but escape, while these petty dealers become the victims. But more often than not, the big wholesalers, dealing in thousands of tins and bags, in Malgodowns, from whom the petty dealers get the articles, are not pursued, but the small fries in the interior. Adulteration, if any, is done by these wholesalers, who suck the blood of the nation, but escape, while these petty dealers become the victims. I do not mean to suggest thereby that there might not be cases, where small dealers also indulge in these antisocial acts at their level. But their number is much less. 23. To overcome the mischief, the Prevention of Food Adulteration (Amendment) Act, 1976, was legislated and thereby proviso wets added to Section 14 of the principal Act incorporating therein a deeming provision inasmuch as Section 14 reads that a bill, cash memorandum or invoice, in respect of the sale of any article of food, given by 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. 24. Two aspects of Section 14 need to be clarified. By adding the proviso, the legislature carved out an exception to the main body of Section 14, which, otherwise, requires a manufacturer or distributor of, dealer in, any article of food to give, in case of sale to a vendor., a warranty, in writing, in the prescribed form about the nature and quality of such article. However, the proviso added a deeming provision. By legal fiction, what may be unreal is made real in the sense that even if any cash memo, bill or invoice does not contain the warranty in the prescribed form (i.e., in the form, which is prescribed under Form VIA), such a cash memo, bill or invoice, too, would nevertheless be deemed to be a warranty. Thus, under the proviso to Section 14, by legal fiction, any bill, cash memo or invoice is a warranty if such a bill, cash memo or invoice, is given, in respect of sale of any article of food, by a manufacturer or distributor of, or dealer in, and article of food, to a vendor to whom the article of food is sold. 25. This Court, in Radheshyam Singal Vs. State of Assam, reported in 2009 (3) GLR 535, considered the legislative history of Section 14 in paragraph 30 of its decision. 25. This Court, in Radheshyam Singal Vs. State of Assam, reported in 2009 (3) GLR 535, considered the legislative history of Section 14 in paragraph 30 of its decision. The relevant observations, made in Radheshyam Singhal (Supra), read as under: ...Section 14, originally (as the same stood before it under went amendment by Act 34 of 1976, w.e.f. 01.04.1976) required that in order to avail the defence of warranty which a vendor seeks to rely upon must have been given in writing in prescribed form. This form has been prescribed under Rule 12 as form VIA. By the proviso, which has been added by Act 34 of 1976 to Section 14, even a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer, distributor or dealer in such article to the vendor thereof shall be deemed to be a warranty. It is of some significance to bear in mind that although Section 14 was amended as indicated herein before the corresponding change in form VIA has not been made. The is that a warranty shall, be in prescribed form, i.e., form VIA, but even a bill, cash memorandum or invoice given by manufacturer, distributor or dealer in such article to the vendor thereof, shall nevertheless be a warranty notwithstanding the fact that such a bill, cash memorandum or invoice doest not bear a warranty, in writing in the prescribed form. 26. The legal effect of the introduction of the proviso to Section. 14 had fallen for consideration of this Court, in Chanadan Das & Ors. Vs. State of Assam & Ors., reported in 2005 (2) GLT 373: 2005 (2) GLR 444, too, wherein this Court observed, at para 8, thus: We find that Section 14 was emended 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. 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 12-A 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 requirement 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 14 of the Act. 27. What crystallizes from the above discussion is that notwithstanding the fact that Rule 12A states as to what shall be treated as a warranty, the proviso deems every bill, cash memo or invoice to be a warranty, if such a bill, cash memo or invoice is given, in respect of a sale of any article of food, to a vendor by a manufacturer or distributor of, or dealer in, the article of food. 28. In the case at hand, though the cash memo (Ext. B) did not have a warranty in the prescribed form, it ought to have been treated by the learned Court below as a warranty and since the defence had succeeded in establishing that the turmeric powder was sold to the Food Inspector in the same condition in which the turmeric powder was purchased, the prosecution of the accused-petitioner was, in the light of proviso to Section 14(2) of the PFA Act, wholly illegal, impermissible and not sustainable in law. 29. 29. What becomes crystal clear from the above discussion is that the accused-petitioner was not proved, beyond reasonable doubt, to be either owner of the said shop or a vendor of the turmeric powder, sold to the Food Inspector, at the said shop. Coupled with this, and even if it is assumed that the accused-petitioner had sold the said turmeric powder, his prosecution, in the light of Ext. B and other evidence on record, as discussed above, was wholly impermissible in law. 30. Situated thus, it is clear that the conviction of the accused-petitioner is wholly illegal. Logically, therefore, neither the conviction of the accused-appellant nor the sentence passed against him can be allowed to stand good on record. 31. In the result and for the reasons discussed above, this revision succeeds. The conviction and the sentence, passed against the accused-petitioner, by the impugned judgment and order, shall stand set aside. The accused-petitioner is held not guilty of the offence, which he stood charged with, and is acquitted of the same. 32. Bail bond of the accused-petitioner is hereby cancelled and his surety shall stand discharged. Send back the LCR. Petition allowed