Bharatkumar Ambalal Modi vs M.S. Pandya Food Inspector and Another

J.C. Upadhyaya, J.—The challenge in this Criminal Revision Application preferred u/s 397 read with Section 401 of the Code of Criminal Procedure Code (''Cr.P.C.'', for short) is to the judgment and order rendered by learned Additional Sessions Judge, City Sessions Court No. 10 on 30.10.2001 in Criminal Appeal No. 43 of 2000 whereby the learned Additional Sessions Judge dismissed the appeal preferred by the petitioner herein and confirmed the conviction and sentence recorded by the learned Metropolitan Magistrate Court No. 6, Ahmedabad on 29.6.2000 in Criminal Case No. 751 of 1987. The trial Court by judgment and order dated 29.6.2000 recorded the conviction of the present petitioner who was original accused No. 1 before the trial Court for the commission of offence punishable u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (''Act'', for short) and was sentenced to undergo R.I for three years and fine of Rs. 5000/- and in default, to undergo R.I for six months for the aforesaid offence. Feeling aggrieved by and dissatisfied with the conviction and sentence awarded to him by the trial Court, the petitioner original accused No. 1 preferred Criminal Appeal No. 43 of 2000 u/s 374 of the Cr.P.C. before the Sessions Court. The Sessions Court after hearing both the sides, dismissed the appeal and confirmed the conviction and sentence awarded to the petitioner original accused No. 1 by the trial Court. This has given rise to the present Criminal Revision Application.

I have heard the arguments made by learned senior counsel Mr. Shethna for the petitioner and learned advocate Mr. Chhaya for respondent No. 1 and learned A.P.P. Mr. Kodekar for the respondent - State.

Learned senior advocate Mr. Shethna for the petitioner submitted that two accused persons, including the present petitioner came to be tried by the trial Court for the alleged offence under the Act. Accused No. 1 is vendor, from whose shop the sample of groundnut oil came to be collected by the Food Inspector (''FI'', for short) and original accused No. 2, who came to be acquitted was the manufacturer of the groundnut oil. As per the prosecution case, the FI on dated 11.6.1986 visited the shop of the petitioner accused No. 1 and from tight packed tin of groundnut oil containing the label �hri Nathji Brand� the sample was collected by opening the seal of the tin. The sample was then forwarded to the Public Analyst and it was reported that the same was adulterated.

3.1 Learned senior counsel Mr. Shethna submitted that during the course of trial, the petitioner accused No. 1 had raised the defence as contemplated under Sub-section 2 of Section 19 of the Act. Though there is no dispute whatsoever that the petitioner vendor original accused No. 1 had purchased the packed tin of groundnut oil from the original accused No. 2 and that a bill was also given by the accused No. 2 to accused No. 1, and that in the complaint itself, as co-accused manufacturer was joined, yet, the trial Court and in turn the first Appellate Court erred in holding that the petitioner original accused No. 1 failed to establish that he had purchased the tins of groundnut oil from the acquitted accused No. 2.

3.2 Learned senior counsel Mr. Shethna for the petitioner drew my attention to relevant provisions contained under Sub-section 2 of Section 19 and Section 14 of the Act. Reliance was also placed upon the case of State of Gujarat v. Bipinkumar Vadilal Shah and Ors. decided by this Court on 25.2.2000 in Criminal Appeal No. 683 of 1991. Ultimately, it is submitted that the appeal may be allowed.

Per contra, learned advocate Mr. Chhaya for the respondent No. 1 FI vehemently opposed this revision and submitted that there is concurrent finding of two Courts, namely, trial Court and the first Appellate Court that the petitioner accused No. 1 failed to establish his defence u/s 19(2) of the Act, and that he failed to establish his nexus with the manufacturer accused No. 2. The said finding may not be disturbed.

4.1 It is further submitted that even the bill, Mark ''A'', does not expressly contain any warranty.

4.2 Learned advocate Mr. Chhaya relied upon the case of M/s. Murlidhar Shyamlal and another Vs. State of Assam, and submitted that the duty is cast upon the vendor to prove that he has purchased the article of food with a written warranty in prescribed form prescribed under the Act.

4.3 Learned advocate Mr. Chhaya for the FI further submitted that if the vendor is desirous to raise the defence laid down u/s 19(2) of the Act, then, he must satisfy all the ingredients laid down in the said provision and in the instant case, the petitioner accused No. 1 vendor failed to prove any of the ingredients. Therefore, it is submitted that the revision application deserves dismissal.

Learned Additional Public Prosecutor Mr. Kodekar for the State, opposing the revision, submitted that the concurrent finding arrived at by two subordinate Courts deserve to be upheld and both the Courts have appreciated the evidence on record and rightly arrived at the conclusion that vendor failed to prove his defence laid down u/s 19(2) of the Act and the revision petition may be dismissed.

I have examined the record and proceedings in context with the submissions made by the rival sides.

Examining the record of the case in light of the submissions made on behalf of both the sides, it clearly transpires that the sole question involved in this matter centers round the provisions contained u/s 19(2) of the Act. Before I discuss the legal aspect of the matter, it would be necessary to consider some admitted facts emerged from the record.

7.2 There is no dispute that on 11.6.1986 when the FI visited the shop of the petitioner accused No. 1, the FI collected the sample of groundnut oil from a tight packed oil tin. The seal of the tin was opened by the FI at the time when the sample was collected. There is also no dispute that at the time of search and seizure, a bill, Mark ''A'', came to be seized. As emerged from the evidence on record and the judgments of the trial Court and the Appellate Court, Mark ''A'' bill revealed that on 7.6.1986, hundred packed sealed tins of groundnut oil came to be purchased by petitioner accused No. 1 from original accused No. 2 manufacturer. There is also no dispute that the FI obtained the sanction to launch prosecution against both the accused, namely, the petitioner vendor and the original accused No. 2 manufacturer. In turn, FI filed criminal complaint in the Court of learned Metropolitan Magistrate against both the above-referred accused. There is also no dispute that after recording the evidence on record, the learned Metropolitan Magistrate recorded the acquittal of original accused No. 2 the manufacturer and recorded the conviction of the petitioner original accused No. 1 vendor.

In the aforesaid background, it is necessary to consider Sub-section 2 of Section 19 of the Act. It runs as under:

19(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 be purchased the article of food-

(i) in a case where a license 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 the sold it in the same state as he purchased it.

Furthermore, in the above background, it is necessary to consider the provision contained u/s 14 of the Act, it runs as under:

14.Manufacturers, distributors and dealers to give warranty. No 1*[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: 5*[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.].

It is further pertinent to note that the proviso to Section 14 of the Act was inserted w.e.f. 1.4.1976.

In the aforesaid background, if Bipinkumar V. Shah''s case (supra) is considered, it clearly transpires that almost identical was the situation as emerged in the instant case. In said case, the sample was collected from sealed and packed packet of chilly powder. After examining the judgments delivered by various High Courts, including this Court, the conclusion was arrived at that the vendor was entitled to the benefit of Section 19(2) of the Act. Relying upon the proviso attached to Section 14 of the Act and relying upon the judgment rendered in the case of Ramanlal Prajapati v. State of Gujarat reported in 1991 (1) GLR 82, it was observed that a bill, cash memo or invoice would be deemed to be a warranty, even though it does not contain the details as to the nature or quality of the article shown.

However, learned advocate Mr. Chhaya for the respondent No1. FI relied upon the case of M/s. Murlidhar Shyamlal and another Vs. State of Assam, Considering the said judgment rendered by Hon''ble Apex Court, it transpires that in that case, there was a warranty issued by the manufacturer in favour of the vendor. Relying upon Rule 12(A) of the Rules, Hon''ble Apex Court observed that in the case where there is written warranty, then the warranty must be in accordance with the form of Warranty Form VI-A. Now in the instant case, it is not the defence of the petitioner original accused No. 1 vendor that he is armed with written warranty. There is no dispute that at the time of the seizure, the bill showing the transaction between the manufacturer and the accused No. 1 regarding the packed sealed oil tin came to be seized and even the prosecution was launched against both the vendor and the manufacturer. As stated above, in Bipinkumar Vadilal Shah''s case (supra), while considering the provisions contained u/s 19(2) of the Act, the proviso attached to Section 14 shall have to be considered. When such is the situation, I am of the opinion that the fact and evidence in the instant case are completely different than the facts and evidence on record in Murlidhar Shyamal''s case (supra).

In light of the above background, I am of the opinion that both the trial Courts erred in arriving at the conclusion that the petitioner accused No. 1 vendor was not entitled to the benefit envisaged u/s 19(2) of the Act. The Criminal Revision Application, therefore, merits acceptance.

For the foregoing reasons, the Criminal Revision Application is allowed. The impugned judgment and order rendered by learned Additional Sessions Judge, City Court No. 10, Ahmedabad on 30.10.2001 in Criminal Appeal No. 43 of 2000 whereby the conviction and sentence recorded by learned Metropolitan Magistrate Court No. 6, Ahmedabad in Criminal Case No. 751 of 1987 recording the conviction of the petitioner original accused No. 1 for the commission of offence punishable u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 and the sentence thereunder confirmed by the learned Additional Sessions Judge, are hereby set-aside. The petitioner original accused No. 1 is acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. His bail bond shall stand cancelled. Rule is made absolute.